NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1043n.06 No. 11-2221 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

DEON L ARON GENT RY, Plaintiff-Appellee ,

v. COUNTY OF WAYNE; DANI ELJ . CARMONA; WARR EN EVAN S; R OB ERT FI CANO; DANI ELPHANNES; HAROL D CUERTON; L AWRENCE MEYER; DONAL D WATTS; MI CHEL L E GARL AND; RI CHARD WOL F; L ARRY DAVI S; C OMMANDER B OOTH; PAL MER COL EMAN, JR .; RI CHARD PERKI NS; J . GRYSKO; DONAL D COX, Def endants-A

ppellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT C OURT FOR THE EASTER

N DI STRI CT OF MI CHI GAN

Be fore : MERRI TT, McKEA GUE, AN D STRANCH, Circuit J udg es. JANE B. STRANCH , Circuit J udg e. I n this action filed pursuant to 42 U.S.C. § 1983, Deon
L aron Gentry alleg es that police office r Daniel J

. Carmona used excessive forc e in at t em p t i n g t o
appre hend h im during police response to a domestic violence call. Deputy Carmona appea ls the district court’s denial of his motion for summary judgme nt on qualified immunit y g rounds. Be cause the offic er r elies on disputed fa cts, we DISMISS the appe al for la ck of jurisdiction. I. BACKG ROUND The thoroug h rec itation of the fac ts in the district court’s order is adopted for purposes of this
appea l. The order notes th at t h e “cr ux ” of this case is the strug g le in the stairwell immediatelyprec eding the shooting of Gentry by Deputy Carmona. Carmona rec ounts those events as follows:

Gentry fell on top of De puty

Merr ow; Merr ow shouted that Ge ntry was try ing to take his wea pon; De p u t y Carmona visually confirme d that Gentry was attempting to do so; and he fired a shot in
response . I n contra st, Gentry alleg ed that he and Deputy Merr ow fell down beside eac h other, with the deputy slightly on top of him; that Deputy Merr ow did not y ell to his fellow office rs that Gentry

was at t em p t i n g to take his wea pon; and that, as Gentry place d both palms flat on the g round and attempted to push himself up to standing , he was shot in the back without further war ning. Although Deputy Carmona arg ued that this dispute was not “g enuine” beca use Gentry ’s testimony conflicte d with consistent testimony from four police office rs, the district court observed t h at t h i s was an implicit, and inappropria te, reque st to assess witness cre dibilit y on a motion for summary judgme nt. Finding that the deter

mination of whether Deputy Carmona’ s actions we re re asonable hinge d on disputed fac ts, the district court denied the motion for summary judgme nt. This appeal f ollowed. II. DISCUSS ION A. Jurisdiction Whil e the denial of qualified immunit y “is an appea lable final decision pursuant to 28 U.S.C. § 1291,” Austin v. Redford Twp. Police Dep’ t , 690 F.3d 490, 495 (6th Cir. 2012), t his is true only “to the extent that it turns on an issue of law.” Mitchell v. Forsyth , 4 7 2 U. S

. 5 1 1 , 530 (1985). Should the l eg al arg uments prese nted by the defendant “rely entirely on [hi s or her] own di sputed version of the facts, the appeal boi ls down t o i s s u es of fact and cre dibilit y deter minations that we
cannot make.” Thompson v. Grida , 656 F.3d 365, 367 (6th Cir. 2011) (citing Berrym an v. Rieger , 150 F.3d 561, 564 ( 6th Cir. 1998)).

2B. Fac tual Dispu tes on Appeal

Deputy Carmona prese nts his issues on appea l as pure questions of law. He arg ues that the district court incorr ectly

analy zed the objective r easona bleness of his ac tions by

placing too much emphasis on whether Gentry was rea ching for or had obtained control over Deputy Merr ow’s g un. Carmona contends that proper considera tion of the rec ord as a whole rende rs Gentry ’s claims immaterial.
Ex cessive or deadly forc e claims are analy zed u n d er the Four

th Amendment’s “re asonable ness” standard, Schreibe r v. Moe , 596 F.3d 323, 331-32 (6th Cir. 2010), that is, whether the totality of the circ umstances justified the use of forc e. See Tennessee v. Garner , 471 U.S. 1, 8-9 (1985). However, the question of “whe ther the use of deadly forc e at a particula r moment is

rea sonable depends primarily on objective assessment of t h e d a n g er a suspect poses at that

moment .” Bouggess v. Mattingly , 482 F.3d 886, 889 (6th Cir. 2007) (empha sis added)

. Acc ording ly , the district court’s primary focus on the “cr ux ” of the case —the moments immediately prec eding the alleg ed use of

excessive or de adly

forc e—wa s appropr iate.
Moreove r, i t is clea

r t hat Deputy Carmona’ s position is entirely depende nt on a version of materia l and disputed fac ts construed in the light most favor able to him. He asser ts that the shooting

was a rea so n ab l e rea ction to Deputy Merr ow’s exclamation that Gentry was rea ching for or had
g rabbe d his wea

pon. The fac ts surrounding this issue are materia l to deter mining whether the 1 deadly forc e employ ed by Deputy Carmona was rea sonable. They are also unquestionably in dispute

I n fac t, the case s Deputy Carmona relies upon in support of his arg uments “ar e only 1 analog ous if this Court acce pts [ his] version of the fac ts.” Thompson , 656 F.3d a t 367. 3and, at this stag e, must be viewed in the light most favor able to Gentry for purposes of appea l. See

Thompson , 656 F.3d a t 367. Deputy Carmona also arg ues that his case fits w ithin a narr ow subset of case s in w hich the

rec ord contains objective evidenc e confirming an office r’s version of the fac ts and re fu t i n g the plaintiff’s conflicting version. See, e.g. , Scott v. Harris , 550 U.S. 372, 380-81 (2007) (holding that conflicting versions of a ca r ch ase betwee n plaintiff and police did not cre ate a g enuine issue of materia l fac t beca

use plaintiff’s version was “blatantly contra dicted” by videotape evidenc e). Circumstance s such as the videotape in Scott are not prese nt here

. Nor are we prese nted with a case in which the only acc ount of t he events comes f ro m office r t estimony

. See, e.g. , Chappell v. C ity of Cleveland , 585 F.3d 901, 910-11 (6th Cir. 2009) (re versing district court’s denial o f q u al i fi ed imm u n i t y wher e office rs wer e the only witnesses to shooting and their testimony was
uncontra dicted). This rec ord contains testimony of Gentry , the deputies, and third parties. Simpl y beca use Gentry ’s testimony conflicts with t h at o f s ev era l police office rs does not underc ut the exis tence of g enuine and materia l issues of fac t. See Jones v. Y ancy , 420 F. App’x 554, 557 (6th Cir. 2011) (conc luding that g enuine issue of materia l fac t exis ted based on plaintiff’s and office rs’ conflicting versions of events surrounding alleg ed use of excessive forc e). Resolution of differ ing fac tual acc ounts and cre dibilit y deter minations are e ntrusted to the finder of fa ct. III. CONCLUSION Rather than prese nting a

purely leg al question, Deputy

Carmona se eks qualified immunit y based on disputed fac ts viewed in the light most favor able to him. Be cause disputes of materia l fac t

rema in, we ar e without jurisdiction and DISMISS the appe al.

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