### The HONORAB LE WILLIAM R. WILSON, JR., United States District 1 

### Judge for the Eastern District of Arkansas. ___________ No. 95-3014

___________ Marie Woolfolk, Administratrix * of the Estate of Eric Rahmal * Woolfolk; Leroy and Marie * Woolfolk, * * Plaintiffs - Appellees, * Appeal from the United States * District Court for the v. * Eastern District of Arkansas. * Darren Smith; City of Pine * [UNPUBLISHED] Bluff, Arkansas, * * Defendants - Appellants. *

___________ Submitted: February 16, 1996 Filed: March 12, 1996

___________ Before LOKEN, BRIGHT, AND MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM. Darren Smith, a newly-hired, off-duty, out-of-uniform police of ficer, chased suspect Eric W oolfolk on foot to make an arrest, cornered Woolfolk in a narrow carport where the two struggled, and shot and killed Woolfolk when he b egan hitting Smith in the head with a plastic trash can lid . Woolfolk's parents then commenced this § 1983 action, asserting a Fourth Amendment excessive force claim against Smith an d a failure-to-train claim against Smith's emplo yer, the City of Pine Bluff, Arkansas. The district court denied defendants' motion for summary judgment and they appeal,

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arguing that we have jurisdiction because the district court denied Smith' s claim of qualified immunity. The S upreme Court narrowed our jurisdiction to hear interlocutor y qualifi ed immunity appeals when it limited such appeals to a distric t cou rt's "determination about pre-existing 'clearly established' law. " John son v. Jones , 115 S. Ct. 2151, 2158 (1995). In this case, the la w concerning when a pol ice officer may use deadly force to arrest a fleeing suspect was establish ed in Tennessee v. Garner , 471 U.S. 1, 11-12 (1985): [I]f the suspect threatens the officer with a weapon or there is p robable cause to believe that he has committed a crim e in volving the infliction or threatened infliction of seriou s physical harm, deadly force may be used if necessar y to prevent escape, and if, where feasible, some warning has been given. After reviewing the facts presented in the summa ry judgment motion papers, the district court denied Smith's motion for sum mary judgment on qualified immunity grounds because it found genuine issues of fact regarding whether Woolfolk was a fleeing felony suspect, whether Woolfolk knew Smith was a police officer, whether Woolfolk was harming Smi th or was a threat to harm others, and whether Smith acted reasonably in entering the cramped carport . As the Supreme Court predicted in Jo hnson v. Jones , its new standard of appealability can be difficult to apply. See, e.g. , Miller v. Schoenen , No. 95-1766, 1996 WL 63301 (8th Cir. Feb. 15, 1996). In this case, Smith has dealt with that difficulty by ignoring it. After careful review of th e summaryjudgment record, we conclude that this is the type of fact-based qualifi ed immunity decision that is not appropriate for interlocutor y appeal. The City has also appealed the distr ict court's denial of the City's motion for summary judgment. We conclude that the

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Woolfolks' failure-to-train claim against the City is not "inextricabl y intertwined" with Smith's claim of qualified immunity. Therefore, even if we could r eview Smith's claim of qualified immunity, we would have n o jurisdiction to immed iately review the district court's denial of summary judgment to the City. See Swint v. Chambers County Comm'n , 115 S. Ct . 1203, 121 2 (1995); Kincade v. City of Blue Springs , 64 F.3d 389, 394-9 5 (8th Cir. 1995). The appeal is dismissed for lack of jurisdiction. A true copy.

Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.