* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10353

RANDALL LING

Plaintiff–Appellee

v.

DEMARCUS L BANDA, in his official and individual capacities; WILLIAM L

MOTT, in his official and individual capacities

Defendants–Appellants

Appeals from the United States District Court 

for the Northern District of Texas

USDC No. 3:05-CV-1754

Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:*

Officers Demarcus L. Banda and William L. Mott (“Appellants”) seek a

reversal of the district court’s denial of their summary judgment motions for

qualified and official immunity. Because we find that Appellants’ arguments in

this interlocutory appeal effectively constitute challenges to the factual

sufficiency of the evidence and do not present legal issues, we dismiss for want

of jurisdiction.

United States Court of Appeals

Fifth Circuit

F I L E D

January 30, 2008

Charles R. Fulbruge III

Clerk
No. 07-10353

1

It is undisputed that Shaw delivered this blow before Banda and Mott arrived on the

scene.

2

I. BACKGROUND

On the night of September 6, 2003, Glen L. Shaw, an officer with the

Garland Police Department, observed Randall Ling speeding on his motorcycle

and signaled for him to pull over. Ling instead led Shaw on a seven-minute

high-speed pursuit. Officers Mott and Banda were dispatched to assist and

joined the pursuit.

Eventually, Ling ended the chase by pulling over to the side of the road

and turning off his motorcycle. Despite the fact that Ling thereupon raised his

hands to surrender, Shaw tackled Ling to the ground and physically attacked

him. Shaw allegedly grabbed Ling’s helmet and struck Ling repeatedly in the

face through the opening on the front of the helmet. One of the blows caused a

wound above Ling’s left eye that eventually sent Ling to the hospital and

required six stitches.1

Shortly after Shaw tackled Ling, Banda and Mott arrived on the scene to

assist Shaw. When Banda arrived, he sat on Ling’s lower back while Ling was

face down. Banda yelled several times for Ling to give him his hands. Ling

asserts that he did not resist arrest in any way during this time period and was

simply laying helpless on his stomach with his hands trapped beneath him.

According to Ling, he did not know that Banda and Mott were trying to get his

hands until “the very, very, very end,” and that he stated “I can't. I can't” in

response to Banda’s requests for his hands. Despite his submission, Ling alleges

that he felt other areas of his body being punched and kicked while Shaw was

assaulting his head and upper body. According to Ling, although he did not see

Banda or Mott physically strike him, given “the relative positions of Shaw, Ling,

Banda and Mott, only Mott or Banda could have administered these blows.”
No. 07-10353

2 The § 1983 claims against Banda and Mott consisted of: (1) an excessive force claim;

(2) a failure to intervene claim for Banda’s and Mott’s failure to intervene and stop Shaw’s

attack; and (3) a failure to disclose claim for Banda’s and Mott’s alleged attempt to “cover-up”

the incident by lying about seeing Shaw strike Ling.

3

After approximately thirty seconds,the officers handcuffed Ling and placed him

under arrest. 

On September 19, 2003, Ling filed an internal affairs complaint against

Shaw, Banda, and Mott, which resulted in the suspension of Shaw for fifteen

days without pay. On November 18, 2003, the Texas Rangers began an

investigation of the incident. Following that investigation, Shaw was charged

with assault, pleaded guilty, and was fired. Banda and Mott were also fired

after they made inconsistent statements during the internal investigation. Mott,

however, was later reinstated after appealing his termination. 

Ling thereafter brought suit against Shaw, Banda, Mott, the City of

Garland, and the Chief of Police Mitch Bates, asserting causes of action for

violation of constitutional rights, § 1983 claims against the individual

Defendants, and state law claims of assault, battery, intentional infliction of

emotional distress, and negligence. Pursuant to motions to dismiss, the district

court dismissed several of Ling’s causes of action; thus, with respect to Banda

and Mott, only Ling’s § 1983 claims and his state law claims for intentional

infliction of emotional distress and negligence remained.2 Banda and Mott

thereafter filed motions for summary judgment on these remaining claims,

asserting that qualified immunity barred Ling’s § 1983 claims and the state

doctrine of official immunity barred Ling’s state law claims. The district court

denied Banda’s and Mott’s motions for summary judgment on all claims except

Ling’s § 1983 claim for failure to disclose. Banda and Mott now appeal. 

II. DISCUSSION

Although a district court’s denial of a defendant’s motion for summary

judgment “is ordinarily not immediately appealable, . . . the denial of a motion
No. 07-10353

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for summary judgment based upon qualified immunity is a collateral order

capable of immediate review.” Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.

2004) (en banc). Our jurisdiction on appeal, however, is “significantly limited”

and “extends to such appeals only ‘to the extent that [the denial of summary

judgment] turns on an issue of law.’” Id. (quoting Mitchell v. Forsyth, 472 U.S.

511, 530 (1985)) (alteration in original). Thus, on appeal, this Court has

jurisdiction to review “the purely legal question whether a given course of

conduct would be objectively unreasonable in light of clearly established law.”

Id. at 347. However, “[w]here the district court has denied summary judgment

on the ground that material issues of fact exist as to the plaintiff’s claims, this

court lacks jurisdiction to review the court’s determination that a genuine fact

issue exists.” Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). In other

words, “we cannot challenge the district court’s assessments regarding the

sufficiency of the evidence–that is, the question whether there is enough

evidence in the record for a jury to conclude that certain facts are true.” Kinney,

367 F.3d at 347. Thus, where a defendant appeals the denial of its motion for

summary judgment on the basis of qualified immunity, “the public official must

be prepared to concede the best view of the facts to the plaintiff and discuss only

the legal issues raised by the appeal.” Gonzales v. Dallas County, 249 F.3d 406,

411 (5th Cir. 2001).

Although Appellants purport to assert legal issues in this appeal,

Appellants’ arguments are in essence challenges to the factual sufficiency of the

evidence, and we,therefore, lack jurisdiction to consider this appeal. Appellants

do not “concede the best view of the facts to the plaintiff and discuss only the

legal issues raised by the appeal.” Id. Instead, Appellants essentially assert

that their conduct was objectively reasonable under their version of the facts.

Appellants do not concede that Ling was helpless and not resisting arrest, nor

do they concede that the alleged force used by them against Ling consisted of
No. 07-10353

3 For this reason, even if Appellants had accepted Ling’s version of the facts as true on

appeal, legal arguments regarding the objective reasonableness of Banda’s and Mott’s conduct

would have certainly failed.

4 Appellants do raise, for the first time on appeal, the legal argument that they are

entitled to official immunity on Ling’s claim that their alleged “cover-up” of the incident

constituted intentional infliction of emotional distress. Banda and Mott assert that such a

“cover-up” cannot constitute intentional infliction of emotional distress under Texas law.

Although such an argument would ordinarily be reviewable, see Cantu, 77 F.3d at 810, neither

5

kicks and punches to the lower portion of Ling’s body. Rather, Appellants’

claims rely on their assertions that Ling “was refusing to surrender his hands”

and the force they used against Ling was “little more than kneeing a suspect in

the back to get him to the ground to effect arrest.” If Ling was in fact helpless

and obviously not resisting arrest–as Ling asserts–Ling could not have

constituted any real or perceived threat that would have justified Banda’s and

Mott’s alleged kicks and punches to Ling’s lower body or their failure to

intervene and stop Shaw’s attack. This is clearly true even though Ling failed

to produce his hands from underneath him in response to Banda’s repeated

orders.3 Thus, Appellants’ arguments that their actions were objectively

reasonable depend on the version of the facts the jury ultimately believes.

Accordingly, as the district court found, there is a material fact issue, which

precludes our jurisdiction. 

Appellants’ appeal of the district court’s denial of summary judgment on

the basis of official immunity fails for the same reason. Texas’ law of official

immunity “is substantially the same as federal immunity law,” Cantu v. Rocha,

77 F.3d 795, 808 (5th Cir. 1996), and “[t]his court has held that orders denying

official immunity under Texas law are immediately appealable to the same

extent as denials of qualified immunity under federal law.” Kinney, 367 F.3d at

346 n.7. Because Appellants’ arguments regarding official immunity are the

same as its arguments regarding qualified immunity, we lack jurisdiction to

consider Appellants’ claims of official immunity.4
No. 07-10353

Banda nor Mott presented this argument to the district court as a basis for official immunity,

and, thus, this argument is waived. Lemaire v. La. Dept. of Transp. & Dev., 480 F.3d 383, 387

(5th Cir. 2007) (“[A]rguments not raised before the district court are waived and cannot be

raised for the first time on appeal.”).

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III. CONCLUSION

For the foregoing reasons, this appeal is DISMISSED FOR WANT OF

JURISDICTION.