* District Judge of the Eastern District of Louisiana, sitting

by designation.

** Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 97-10194

___________________________

ERIK WILLIAMS,

Plaintiff-Appellee,

VERSUS

CITY OF DALLAS, ET AL., STANLEY MCDANIEL,

Defendants-Appellants.

___________________________________________________

Appeal from the United States District Court

For the Northern District of Texas

(3:96-CV-1523-T)

 ___________________________________________________

September 4, 1998

Before KING and DAVIS, Circuit Judges, and VANCE,* District Judge.

PER CURIAM:**

Erik Williams filed suit under 42 U.S.C. § 1983, claiming that

Dallas Police Officer Stanley McDaniel deprived him of his

constitutional rights by using excessive force to apprehend him.

Following a tip that persons in a white van were burglarizing cars

in a nearby neighborhood, Officer McDaniel spotted the van and

attempted to stop it. The van took off, avoiding the stop, and

Officer McDaniel chased it. During the chase, Officer McDaniel
2

observed gunfire coming from the van. The van eventually stopped,

and the passengers fled on foot. Officer McDaniel stopped his

police vehicle next to the van, and exited his car. After

observing Williams and another passenger across the street, Officer

McDaniel fired at Williams and shot him in the leg.

In this appeal, Officer McDaniel claims that the district

court erred in its denial of summary judgment on the basis of

qualified immunity. The district court concluded that summary

judgment was inappropriate due to the existence of genuine issues

of material fact. 

We have jurisdiction to review the district court’s

interlocutory order denying summary judgment on the basis of

qualified immunity with respect to whether the genuine issues of

fact identified by the district court are material. Colston v.

Barnhart, ____ F.3d ____ (5th Cir. 1998)(denial of reh’g en banc).

Although the district court did not specify the issues it

considered material, our review of the summary judgment evidence

reveals the existence of at least one issue of material fact. See

id. at ____ (“where the district court does not identify those

factual issues as to which it believes genuine disputes remain, an

appellate court is permitted to go behind the district court’s

determination and conduct an analysis of the summary judgment

record to determine what issues of fact the district court probably

considered genuine”). Williams claims that after Officer McDaniel

yelled “stop, freeze,” Williams turned and faced the officer with

his hands in the air, and yelled “don’t shoot.” Officer McDaniel
3

does not discuss the circumstances immediately prior to the shot in

his affidavit, but generally explains his shooting as a reaction to

all of the circumstances leading up to the shot. His affidavit

stated: “I fired my gun because of the previous shots fired at me

and because I thought that the person or persons were still armed

and shooting at me.” Because this issue of fact is material, we

have no jurisdiction to review the district court’s denial of

summary judgment. We therefore dismiss the appeal. 

DISMISSED.