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w . v i l l a no v a . e du/thir dc ir c uit_2015/745NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 14

- 3966

_____________ VICTORIA GEIST, Motion and Na tural Guardian of K.W., a Minor

v. JASON AMMARY; CITY OF ALLENTOWN

Jason Am m ary,

A ppellant

_____________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. Action No. 5

- 11

- cv - 07532 ) District Judge: Honorable Lawrence F. Stengel

______________ Submitted Under Th ird Circuit L

. A

. R

. 34.1(a)

July 14 , 2015

______________ Before: SMITH , GREENAWAY, JR., and SHWARTZ , Circuit Judges

.

(Opinion Filed: July 16, 2015 )

______________ OPINION 

______________

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

GREENAWAY, JR., Circuit Judge

. Appellant Jason Ammary (“Ammary ”) appeals an order of the District Court denying his motion for summary judgment on Appellee Vi ctoria Geist ’ s § 1983 claims. Ammary argues that the District Court erred in denying summary judgment on the basis of qualified immunity. 1 For the reasons set forth below, we conclude that we lack jurisdiction to consider this interlocutory appeal. Accordingly, the appeal will be
dismissed.
I. Background Geist brought this action on behalf of her daughter, K .W

. Geist’s excessive force
and failure

- to

- train c l aims stem from a physical alterc ation during which Ammary deployed his Taser on K. W

. As the District Court noted throughout its opinion, t he underlying events are largely in dispute. As it was required to do, however, the District Court drew “‘all justi fiable inferences ’ in favor of [Geist] .” Geist v. Ammary , 40 F. Supp. 3d 467, 474 (E.D. Pa. 2014) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986) ). In this interlocutory appeal, “we must accept the District Court’s set of facts as give n.” Walker v. Horn , 286 F.3d 705, 707 (3d Cir. 2002). At the time of the incident, K.W. was a fourteen

- year - old student at Allen Dieruff High School (“Dieruff”) in A llentown, Pennsylvania. Ammary, a n Allentown police officer, was assigned as a School Res ource Officer at Dieruff at the time

. On the afternoon of September 29, 2011, K.W. was walking with two friends in a street near

1 The District Court also denied Ammary’s motion for summary judgment on the merits. Ammary does not appeal that ruling here.3

Dieruff after students at the school h ad been dismissed for the day. At the same time, Ammary and several school security off icers were instructing students to disperse and to move out of the roadway. 2 K.W. avers that she did not hear Ammary tell her to leave the

street.
As K.W. was w alking towards the sidewalk in compliance with the instructions of the security officers to d isperse , 3 Ammary ap proached her from behind and grabbed her

arm. 4 K.W. did not observe that Ammary was a police officer until after he had grabbed
her arm
. K. W

. pulled away and continued walking. Ammary approached K.W. again
and grabbed both of her arms and pushed her against a car where a struggle ensued

. K.W. tried to t urn her body around to face Ammary and to ascertain why he was arresting her. Ammary responded by putting his forearm on her neck. K.W. could not breathe and

2 Ammary testified that the officers were instructing students to disperse because there were large groups of students gathered on the school grounds after school and they appeared to be ready to fight. K.W. , however, testified that she did not observe any large groups of students gathered nor did she know of any students planning to fight.

3 Ammary testified that after he instructed the students to move out of the street, K.W. and two females remained in the middle of the street and uttered profanities to incite the crowd of students

.

4 In his police report, Ammary stated he initially ap proached K.W. from behind, grabbed both of her arms, and notified her that she was under arrest. However, in his deposition testimony, Ammary claimed he first approached K.W. from the front, and did not intend to arrest K.W. when he first grabbed her wris t, but instead intended to pull her off to the side of the street.4

attempted to move Ammary’ s arm from her neck . She denies hitting Ammary at any point during the incident. 5 At some point, Ammary stepped away from K.W. K.W. testified that she stopped resisting after Ammary let go of her and put her hands up when he stepped away from
her. 6 Am mary then deployed his T a ser in K.W. ’s lower abdominal area and groin

. 7
K.W. testified that after s he fell to the ground from the T aser, Ammary ordered her to roll

on to her stomach to be handcuffed , pushing the T aser ba rbs further into her body. 8
II. Discu ssion As a threshold matter, we must determine whether we have jurisdiction to hear this appeal. 9 As a general rule, we only have jurisdiction of appeals from “ final decisions of
the district courts. ” 28 U.S.C. § 1291. “ [I]nterlocutory appeals

— appeals b efore the end of district court proceedings

— are the exception, not the rule. ” Johnson v. Jones , 515 U.S. 304, 309 (1995).

5 Ammary disputes K.W. ’s testimony and claims that K.W. violently resisted arrest and assaulted Ammary’s head and body with her forearm and elbows.

6 Ammary maintains that K.W. ’s hands were not raised when he deployed his Taser.

7 Ammary claims that he was forced to aim the Taser towards K.W. ’s lower torso because K.W. ’s backpack had fallen in front of her body. K.W. , however, claims that her backpack remained on her back throughout t he incident.

8 Ammary denies that he ordered K.W. to roll onto her stomach and claims she remained on her side.

9 The District Court had jurisdiction under 28 U.S.C. § 1331. We have “jurisdiction to determine [our] own jurisdiction,” United States v. Ru iz , 536 U.S. 622, 628 (2002), and “exercise de novo review over an argument alleging a lack of appellate jurisdiction,” Montanez v. Thompson , 603 F.3d 243, 248 (3d Cir. 2010).5

An established exception to the general rule applies for certain denials of qualified immunity. This exception arises under the coll ateral order doctrine. Mitchell v. Forsyth , 472 U.S. 511, 525

– 26 (1985). 10 This Court has determined that the “ denial of qualified immunity falls within the collateral

- order doctrine only to the extent the denial turns on
an issue of law. ” In re Montgome ry Cnty. , 215 F.3d 367, 373 (3d Cir. 2000); see also Doe v. Groody , 361 F.3d 232, 237 (3d Cir. 2004). I f the denial of qualified immunity instead turns on “a factual dispute , ” we lack jurisdiction over a related appeal. Groody , 361 F.3d at 237; Ziccardi v. City of Phila. , 288 F.3d 57, 61 (3d Cir. 2002) (holding that

“ we lack jurisdiction to consider whether the district court correctly identified the set of facts that the summary judgment record is sufficient to prove ” ); Johnson , 515 U.S. at
319

– 20 (denyi ng appellate jurisdiction to review a district court ’ s determination of whether a dispute of fact is “ genuine ” ). Thus, our jurisdiction to review the District Court ’ s order denying summary judgme nt here depends on whether “ the

. . . appeal raises pure qu estions of law or whether it challenges the District Court ’ s determination of which facts were sufficiently supported by evidence. ” Blaylock , 504 F.3d at 409

. Ammary’s appeal does not raise a pure question of law. The District Court began its qualified i mmunity analysis by correctly stating that Ammary’s entitlement to

10 “Under the collateral order doctrine, an interlocutory order of a district cou rt may be treated as a ‘final decision’ if it: ‘(1) conclusively determine[s] the disputed question, (2) resolve[s] an important issue completely separate from the merits of the action, and (3) [is] effectively unreviewable on appeal from a final judgment. ’” Blaylock v. City of Phila. , 504 F.3d 405, 408 (3d Cir. 2007) (alterations in original) (quoting Johnson , 515 U.S. at 310).6

qualified immunity hinges on whether a “‘ reason able officer [] in the defendant[’s] position at the relevant time could have believed, in light of what was in the decided case law, that [his ] conduct was lawful

. ’” Geist , 40 F. Supp. 3d at 485 (quoting Giuffre v.
Bissell , 31 F.3d 1241, 1255 (3d Cir. 1994) )

. It f urther stated that , “‘ [r] easonableness
under the second factor

. . . is an issue of law for the district court to determine; however , if there are facts material to the determination of reasonableness in dispute, then that issue of fact should be decided by the jury. ’” Id. (quoting Barton v. Curtis , 497 F.3d 331, 335 (3d Cir. 2007) )

. 11 Here, t he District Court expressly found that th ere are several such “ facts material
to the determination of reasonableness [that] remain in dispute

. . . . [and] should be resolved by a jury, not the court .” Id. Under Geist ’s version of the facts, Ammary was
not faced with the threat of a crowd of st udents ready to fight, K.W. did not assault Ammary, K.W. ’s hands were raised when Ammary deployed his Taser, and K.W. was ordered to roll onto her stomach. However, under Ammary ’s view of the facts, there was a large c rowd of students ready to fight and K .W. attempted to incite the crowd, res isted

11 Ammary argues that “[t]he District Court misapplied the standard for the application of qualified immunity” because it consid ered whether “a combative juvenile was entitled to heightened protections from Taser use under the Fourth Amendment.” Ammary’s Jurisdictional Mem. at 6 (emphasis added). However, the District Court concluded that there was no caselaw that addressed that issue, and instead based its denial of summary judgment on several unresolved issues of fact material to the reasonableness determination. The District Court found that “[t]hese [factual] disputes should be resolved by a jury, not the court.” Geist , 40 F . Supp. 3d at 485. In light of the District Court’s conclusion that the objective reasonableness of Ammary’s actions is a matter of factual dispute, Ammary’s appeal does not present a pure question of law, and we have no jurisdiction to resolve such issue s at this stage.7

arrest, assaulted Ammary, did not have her hands raised when Ammary deployed his Taser, and was not ordered to roll onto her stomach

. Furthermore , the District Court
concluded that there were genuine disputes of material fact regarding : (1) “ whether a threat of saf

ety was posed to Officer Ammary ” ; (2) “ how dangerous [ K.W. ] appeared to
be ”; (3) “ what types of warnings were given to Ms. K.W. before force was applied ” ; and (4) “ whether [ K.W. ] was actively resisting [Ammary’s] commands at the time she was
tased .” Id. at 480 . T he District Court therefore c oncluded that summary judgment i s inappropriate at this stage. On appeal, Ammary argues that his actions did not violate clearly established law
and were obj ectively reasonable. However, the District Court found that the parties’
actions and the circumstances surrounding those action s are in dispute and go to the heart
of Ammary’s immunity claim. Further , Ammary ’ s appeal is pre mised on a different view
of th e facts than the one assumed by the District Court

. Compare , e.g. , Appellant Br. at
37 , 41 (asserting that “ K.W. activ ely assaulted Officer Ammary ” and that it was “reasonable for [Ammary] to believe that he [wa]s being assaulted” ); with Geist , 40 F. Supp . 3d at 478

– 80 (noting that whether K.W. struck Ammary was an unresolved dispute of material fact). 12

12 Ammary also claims that a surveillance video that was submitted as part of the motion for summary judgment conclusively resolves some of the disputed issues of material fact, such as whether K.W. struck Ammary in the head. However, t his conclusion is at odds with the District Court’s finding that the video “does not resolve one way or the other facts being disputed regarding the excessive force claim.” Geist , 40 F. Supp. 3d at 478. Accordingly, we have no jurisdiction to entertain K .W. ’s contrary factual claims on appeal.8

Under these circumstances, we do not have jurisdiction to consider Ammary’s interlocutory appeal. See Barton , 497 F.3d at 336 ( “ Because the District Cou rt denied summary judgment on the ground that there is a material issue of fact to be de termined by the jury, the order

. . . is one of the limited instances in which this Court does not have jurisdiction to hear an app eal of summary judgment in a 42 U.S.C . § 1983 cause of action where the defendant is asserting qualified immunity

. ” ).
III. Conclusion For the foregoing reasons, we will dismiss this appeal for lack of jurisdiction

.