FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF WAYNE STEVEN 

ANDERSON,

Plaintiff-Appellee,

v.

JOHN MARSH, California Highway 

Patrol Officer,

Defendant-Appellant.

No. 19-15068

D.C. No.

1:14-cv-01599-

TLN-SAB

OPINION

Appeal from the United States District Court

for the Eastern District of California

Troy L. Nunley, District Judge, Presiding

Argued and Submitted January 8, 2020

San Francisco, California

Filed January 15, 2021

Before: William A. Fletcher and Michelle T. Friedland, 

Circuit Judges, and Timothy Hillman,* District Judge.

Opinion by Judge Friedland;

Dissent by Judge W. Fletcher

* The Honorable Timothy Hillman, United States District Judge for 

the District of Massachusetts, sitting by designation.
2 ESTATE OF ANDERSON V. MARSH

SUMMARY**

Civil Rights

The panel dismissed, for lack of jurisdiction, an 

interlocutory appeal from the district court’s order, on 

summary judgment, denying qualified immunity to 

California Highway Patrol Officer John Marsh in an action 

brought pursuant to 42 U.S.C. § 1983 alleging Marsh used 

excessive force when he shot Wayne Anderson.

The panel determined that the crux of Marsh’s appeal 

was that the district court “erred in finding disputed issues of 

material fact” concerning whether Anderson made a sudden 

movement as though he were reaching for a weapon. 

Applying the rule articulated in Foster v. City of Indio, 908 

F.3d 1204 (9th Cir. 2018), Pauluk v. Savage, 836 F.3d 1117 

(9th Cir. 2016), and Advanced Building & Fabrication, Inc. 

v. California Highway Patrol, 918 F.3d 654 (9th Cir. 2019), 

the panel concluded that it lacked jurisdiction over the 

appeal because, in light of his concessions at oral argument, 

Marsh challenged only the district court’s determination that 

there was a genuine factual dispute as to whether Anderson 

appeared to reach for a weapon before Marsh shot him. 

Rather than arguing that, taking the facts in the light most 

favorable to Anderson’s Estate, the law was not clearly 

established that Marsh’s conduct was unconstitutional—

which the panel would have had jurisdiction to consider—

Marsh contested whether there was enough evidence in the 

record for a jury to conclude that a certain fact favorable to 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ESTATE OF ANDERSON V. MARSH 3

the Estate was true, which the panel did not have jurisdiction 

to resolve. Because it could not review on interlocutory 

appeal the question of evidence sufficiency Marsh raised, the 

panel dismissed his appeal for lack of jurisdiction.

Dissenting, Judge W. Fletcher stated that he was 

sympathetic with the panel majority, for the law in this area 

is extraordinarily confused. However, Marsh did not dispute 

that he was at the scene. Indeed, he conceded that he shot 

Anderson. Therefore, under Plumhoff v. Rickard, 572 U.S. 

765 (2014), and other case law, the panel had jurisdiction to 

hear this appeal. Judge Fletcher closed his dissent with a 

plea to the Supreme Court to state clearly, in an appropriate 

case, whether and in what circumstances an interlocutory 

appeal may be taken when the district court, viewing 

disputed evidence in the light most favorable to plaintiff, has 

denied a motion for summary judgment based on qualified 

immunity. 

COUNSEL

Kymberly E. Speer (argued) and Wilfred Fong, Deputy 

Attorneys General; Jeffrey R. Vincent, Supervising Deputy 

Attorney General; Danielle F. O’Bannon, Senior Assistant 

Attorney General; Xavier Becerra, Attorney General of 

California; Office of the Attorney General, Oakland, 

California; for Defendant-Appellant.

Adam Carlson (argued), Casper, Meadows, Schwartz & 

Cook, Walnut Creek, California; Karen L. Snell, San 

Francisco, California; for Plaintiff-Appellee.
4 ESTATE OF ANDERSON V. MARSH

OPINION

FRIEDLAND, Circuit Judge:

The Estate of Wayne Steven Anderson brought this 

action under 42 U.S.C. § 1983 alleging that California 

Highway Patrol Officer John Marsh used excessive force 

against Anderson in violation of the Fourth Amendment. 

Marsh moved for summary judgment based on qualified 

immunity. The district court denied Marsh’s motion, and he 

filed this interlocutory appeal. Because Marsh’s 

interlocutory appeal challenges only the district court’s 

conclusion that there is sufficient evidence to create a 

genuine dispute as to the factual question that will determine 

whether Marsh’s use of force was reasonable, we lack 

jurisdiction to review his arguments. We therefore dismiss 

this appeal.

I.

A.

In the early afternoon of October 27, 2012, while on 

patrol in the Fresno area, California Highway Patrol 

(“CHP”) Officer John Marsh saw a Toyota Camry driving 

westbound on State Route 180 at 70 miles per hour.1 Marsh 

followed the car and radioed dispatch to report that he was 

going to “attempt[] to overtake a high-speed vehicle.” 

Shortly after Marsh began following the Camry, its driver, 

1 Marsh stated at various points that Anderson’s speed was 70, 90, 

and 100 miles per hour. Because this appeal arises from the denial of 

Marsh’s motion for summary judgment, we relate the version of the facts 

most favorable to Anderson’s Estate, the non-moving party, unless 

otherwise indicated. See Foster v. City of Indio, 908 F.3d 1204, 1207 

(9th Cir. 2018).
ESTATE OF ANDERSON V. MARSH 5

later identified as Wayne Steven Anderson, merged onto 

State Route 99 northbound. Marsh testified in his later 

deposition that, at around this point, he activated his patrol 

car’s overhead lights. Anderson took an off-ramp at 

70 miles per hour, drove through a stop sign, and reentered 

Route 99. He then took the next off-ramp, again traveling at 

a speed that Marsh estimated at 70 miles per hour. Anderson 

drove through a T-intersection, lost control of his car while 

attempting to turn, and crashed into a chain-link fence. 

Approximately three minutes had passed between the start 

of Marsh’s pursuit and the crash.

A few seconds after Anderson crashed into the fence, 

Marsh stopped his patrol car right behind the Camry. 

Anderson remained in the Camry. Marsh immediately 

exited his car and drew his service weapon. He heard the 

engine of the Camry revving and saw the car rocking 

forward and backward as if Anderson were attempting to 

dislodge it from the chain-link fence. Marsh testified that he 

ordered Anderson to stop. Marsh then approached the 

driver’s side of the Camry and pointed his weapon at 

Anderson. Marsh saw Anderson’s left hand on the steering 

wheel and his right hand on the gear shift.

According to Marsh’s disputed deposition testimony, he 

ordered Anderson to “[s]top the car” and “[s]how me your 

hands.” Marsh further testified that Anderson suddenly 

stopped rocking the car, took his hands off the steering wheel 

and gear shift, and reached toward the front passenger seat 

or floorboard. Marsh later stated that he feared Anderson 

was reaching for a weapon.

It is undisputed that Marsh then fired two rounds. One 

bullet penetrated the Camry’s closed window, struck 

Anderson, and permanently paralyzed him from the chest 

down. The other bullet hit the Camry’s door frame. Marsh 
6 ESTATE OF ANDERSON V. MARSH

had not warned Anderson that he was going to shoot before 

firing.

Marsh radioed dispatch to report shots fired. One 

segment of the recording of his dispatch is difficult to 

understand but was transcribed by CHP as including the 

phrase “[h]e ran into my car.” Marsh did not mention that 

Anderson may have been armed.

Other officers arrived on the scene within a minute. 

Marsh did not alert anyone about the possible presence of a 

weapon in the Camry, and no weapon was ever recovered. 

One of the responding officers later testified that he believed 

that Marsh said he fired his weapon because he thought 

Anderson “was trying to run him over.” This officer did not 

recall Marsh expressing a fear that Anderson had a weapon.

Although Marsh’s vehicle had a dashboard camera, 

subsequent investigation revealed that it had not recorded the 

incident. A blurry surveillance video (without 

accompanying audio) from a nearby business captured 

Anderson’s crash, the relative positions of Anderson’s and 

Marsh’s vehicles, and Marsh’s approach to the Camry, but 

not the Camry’s interior. Marsh was interviewed by the 

Fresno Police Department later on the day of the shooting. 

The interviewers showed him the surveillance video before 

questioning him about what had occurred.2

2 CHP’s designated person most knowledgeable about its 

investigation into this incident testified that he was not aware of any 

other instance in which a CHP officer involved in a shooting was 

permitted to view a video of the shooting before being interviewed by 

investigators.
ESTATE OF ANDERSON V. MARSH 7

B.

Anderson filed this action against Marsh in the United 

States District Court for the Eastern District of California. 

Anderson died “of causes not directly related” to the 

shooting several months later, before he ever testified about 

the events at issue. His Estate took over the litigation. 

Marsh moved for summary judgment. The Estate thereafter 

stipulated to dismissal of all claims asserted in the Complaint 

except the excessive force claim. As to that remaining claim, 

Marsh asserted the defense of qualified immunity.

The district court denied Marsh’s motion for summary 

judgment. The court identified several aspects of the 

evidentiary record that undercut Marsh’s testimony that 

Anderson made a sudden, threatening movement toward the 

passenger side of his car. The court’s observations included 

that no weapon was recovered from Anderson’s car; that 

“Marsh did not report a possible weapon to other officers 

who arrived on the scene”; and that when Marsh reported the 

shooting to dispatch, he said something transcribed as “[h]e 

ran into my car,” without mentioning that Anderson may 

have been armed. As the court summarized, on the Estate’s 

version of the facts in the record, “Anderson was sitting, 

unarmed, in the driver seat of his car, which was stuck on a 

chain link fence [and] had already stopped rocking back and 

forth, and Anderson had one hand on the steering wheel and 

the other [hand] on the gear-shift” at the time he was shot.

The district court thus reasoned that, “[v]iewing all 

disputed facts in the light most favorable to [the Estate], as 

[required] on a motion for summary judgment, a reasonable 

jury could conclude that Anderson did not make a sudden, 

furtive reach for the passenger side of the car.” The court 

held that “if a jury finds that Anderson did not reach for the 

passenger side,” there would have been a “lack of imminent 
8 ESTATE OF ANDERSON V. MARSH

threat to Officer Marsh or others,” so the jury could find 

“Officer Marsh’s use of deadly force . . . was excessive.” 

The court further held, quoting Wilkinson v. Torres, 610 F.3d 

546, 550 (9th Cir. 2010), that caselaw at the time of the 

incident “clearly established that an officer may not use 

deadly force to apprehend a suspect where the suspect poses 

no immediate threat to the officer or others.” The court 

accordingly held that Marsh was not entitled to qualified 

immunity at the summary judgment stage of the litigation.

Marsh timely filed this interlocutory appeal. The crux of 

Marsh’s appeal is that the district court “erred in finding 

disputed issues of material fact” concerning whether 

Anderson made a “sudden movement as though he were 

reaching for a weapon.” Marsh asserts that there is not 

sufficient evidence for a jury to find for the Estate on this 

question because “[t]here is no evidence directly 

contradicting [his] testimony that Anderson made a furtive 

movement.” Marsh accordingly argues that, for purposes of 

evaluating whether he was entitled to qualified immunity, 

the district court should have accepted as true his account of 

Anderson’s actions. At oral argument, Marsh’s counsel 

conceded that the qualified immunity analysis turns on 

“[w]hether Officer Marsh reasonably perceived that 

[Anderson] was making a threatening movement,” and that 

it was “clearly established” that it would not have been 

lawful for Marsh to shoot “[i]f the jury d[oes] not believe 

that [Anderson’s] hands ever moved.”

II.

A.

The parties dispute whether we have jurisdiction over 

this interlocutory appeal. An order denying a motion for 

summary judgment is usually not an immediately appealable 
ESTATE OF ANDERSON V. MARSH 9

final decision. Plumhoff v. Rickard, 572 U.S. 765, 771 

(2014); see 28 U.S.C. § 1291. “But that general rule does 

not apply when the summary judgment motion is based on a 

claim of qualified immunity,” because “pretrial orders 

denying qualified immunity generally fall within the 

collateral order doctrine.” Plumhoff, 572 U.S. at 771–72. 

Thus, in the qualified immunity context, we typically have 

jurisdiction over interlocutory appeals from the denial of 

summary judgment. Foster v. City of Indio, 908 F.3d 1204, 

1209 (9th Cir. 2018).

“[T]he scope of our review” in this context, however, is 

“circumscribed.” Id. at 1210 (quoting George v. Morris, 

736 F.3d 829, 834 (9th Cir. 2013)). In Johnson v. Jones, 

515 U.S. 304 (1995), the Supreme Court explained that any 

“portion of a district court’s summary judgment order that, 

though entered in a ‘qualified immunity’ case, determines 

only a question of ‘evidence sufficiency,’ i.e., which facts a 

party may, or may not, be able to prove at trial . . . is not 

appealable.” Id. at 313. By contrast, any portion of a 

summary judgment order that turns on “the application of 

‘clearly established’ law to a given (for appellate purposes 

undisputed) set of facts” is immediately appealable. Id.

We have understood Johnson to mean “[a] public official 

may not immediately appeal ‘a fact-related dispute about the 

pretrial record, namely, whether or not the evidence in the 

pretrial record was sufficient to show a genuine issue of fact 

for trial.’” Foster, 908 F.3d at 1210 (quoting Johnson, 

515 U.S. at 307); see also George, 736 F.3d at 835 

(underscoring that we may not review on interlocutory 

appeal “the question whether there is enough evidence in the 

record for a jury to conclude that certain facts are true”). Our 

interlocutory review jurisdiction is limited to resolving a 

defendant’s “purely legal . . . contention that [his or her] 
10 ESTATE OF ANDERSON V. MARSH

conduct ‘did not violate the [Constitution] and, in any event, 

did not violate clearly established law.’” Foster, 908 F.3d at 

1210 (quoting Plumhoff, 572 U.S. at 773); see also George,

736 F.3d at 836 (“[W]e are confined to the question of 

‘whether the defendant[] would be entitled to qualified 

immunity as a matter of law, assuming all factual disputes 

are resolved, and all reasonable inferences are drawn, in 

plaintiff’s favor.” (quoting Karl v. City of Mountlake 

Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012))).3

These cases instruct that whether jurisdiction is lacking 

under our court’s interpretation of Johnson ultimately turns 

on the nature of the defendant’s argument on appeal. If the 

3 Although we may not review on interlocutory appeal claims that a 

plaintiff has presented insufficient evidence, we have held that we may 

review claims that a plaintiff has presented no evidence such that his 

arguments about the illegality of a defendant’s conduct are premised on

“bare allegation[s].” Foster, 908 F.3d at 1217; id. at 1217–18 (holding, 

on interlocutory review, that “the district court erred in finding a genuine 

dispute” of fact as to whether the defendant officer approached the 

plaintiff with his gun drawn because the plaintiff’s “bare allegation

alone, without any evidence in the record, is insufficient to conclude that 

[the officer] did anything more than unholster his gun”); Jeffers v. 

Gomez, 267 F.3d 895, 907 (9th Cir. 2001) (determining that there was 

jurisdiction to review and reverse the district court’s holding that the 

defendants’ motive was in dispute when there was “no evidence of bad 

motive,” even when the record was “viewed in the light most favorable 

to the plaintiff”).

Similarly, we have recognized that the Supreme Court’s decision in 

Scott v. Harris, 550 U.S. 372 (2007), created a narrow additional avenue 

for a defendant to argue that a plaintiff’s version of the facts is “blatantly 

contradicted by the record, so that no reasonable jury could believe it.”

Orn v. City of Tacoma, 949 F.3d 1167, 1171 (9th Cir. 2020) (quoting 

Scott, 550 U.S. at 380). In Scott itself, for example, the Court justified 

its rejection of the plaintiff’s factual allegations by noting that a 

videotape of the events in question “quite clearly contradict[ed] the 

version of the story told by [the plaintiff].” 550 U.S. at 378.
ESTATE OF ANDERSON V. MARSH 11

defendant argues only that the evidence is insufficient to 

raise a genuine issue of material fact, we lack jurisdiction. If 

the defendant’s appeal raises purely legal questions, 

however, such as whether his alleged conduct violated 

clearly established law, we may review those issues. In other 

words, we have jurisdiction to review an issue of law 

determining entitlement to qualified immunity—even if the 

district court’s summary judgment ruling also contains an 

evidence-sufficiency determination—but not to accede to a 

defendant’s request that we review that evidence-sufficiency 

determination on appeal.

Our dissenting colleague describes the Supreme Court’s 

caselaw on the scope of interlocutory appeals in the qualified 

immunity context as having spawned “persistent confusion,” 

and understands the prevailing rule to be different than the 

one we have outlined above. Dissent at 21–22. Specifically, 

the dissent interprets the discussion of Johnson in Plumhoff

as indicating that we always have jurisdiction over an 

interlocutory appeal from the denial of qualified immunity, 

with one narrow exception:

Only when officers provide disputed 

evidence showing that they were not present, 

and were in no way involved in the 

challenged conduct [as the defendant officers 

in Johnson were not], is an appellate court 

without jurisdiction to hear the officers’ 

interlocutory appeal.

Dissent at 31; see Johnson, 515 U.S. at 307–08. In other 

words, the dissent reads Plumhoff as implicitly restricting

Johnson to its facts. See Dissent at 31.

We agree with the dissent that the Supreme Court’s 

explication of the relevant jurisdictional principles has not 
12 ESTATE OF ANDERSON V. MARSH

always been clear, and that Plumhoff contains language that 

supports the dissent’s reading. But there is also language in 

Plumhoff that suggests the Court did not read Johnson so 

narrowly. Plumhoff reiterated that Johnson barred an 

interlocutory appeal from a summary judgment order that 

turned on “a question of ‘evidence sufficiency,’ i.e., which 

facts a party may, or may not, be able to prove at trial.”

Plumhoff, 572 U.S. at 772 (quoting Johnson, 515 U.S. 

at 313). The Court also emphasized the difference between 

“legal issues” and “purely factual issues that the trial court 

might confront if the case were tried,” explaining with 

approval that Johnson had held that “forcing appellate courts 

to entertain [interlocutory] appeals” concerning factual 

determinations of “evidence sufficiency” would “impose an 

undue burden.” Id. at 773.

Those passages have already persuaded our court to 

adopt a different interpretation of the limits on interlocutory 

appellate jurisdiction than the dissent’s. Our post-Plumhoff 

decisions have continued to understand Johnson as setting 

forth a jurisdictional rule about challenges to evidence 

sufficiency, without confining the rule to situations in which 

officers deny having been involved in the challenged 

conduct. For example, we stated in Foster that “‘a portion 

of a district court’s summary judgment order’ in a qualified 

immunity case [that] ‘determines only a question of 

“evidence sufficiency,” i.e., which facts a party may, or may 

not, be able to prove at trial,’” is not immediately appealable. 

908 F.3d at 1210 (quoting Johnson, 515 U.S. at 313). We 

similarly said in Advanced Building & Fabrication, Inc. v. 

California Highway Patrol, 918 F.3d 654 (9th Cir. 2019), 

that “[w]e may not consider ‘a fact-related dispute about the 

pretrial record,’ that is, ‘whether or not the evidence in the 

pretrial record was sufficient to show a genuine issue of fact 

for trial.’” Id. at 657 (quoting Johnson, 515 U.S. at 307); see 
ESTATE OF ANDERSON V. MARSH 13

also, e.g., Pauluk v. Savage, 836 F.3d 1117, 1121 (9th Cir. 

2016) (same).4

To the extent these cases involved arguments on 

interlocutory appeal that boiled down to factual disputes 

about the record, we applied Johnson to hold that we lacked 

jurisdiction over such arguments—even when the factual 

disputes did not concern whether the defendants were 

involved in the allegedly unlawful conduct. For instance, the 

defendant in Foster, Officer Hellawell, conducted an 

investigatory stop of Foster and subsequently shot him. 

908 F.3d at 1207–09. The district court held that Hellawell 

was not entitled to qualified immunity from claims that he 

stopped Foster unlawfully and used excessive force twice 

throughout the encounter. Id. at 1209. As to one of the 

excessive force claims, Hellawell argued on interlocutory 

appeal that Foster’s family “w[ould] not be able to prove at 

trial” that Foster was unarmed and moving away from 

Hellawell at the time of the shooting. Id. at 1213. We 

concluded that we lacked jurisdiction to review this 

argument because “Hellawell challenge[d] the sufficiency of 

the plaintiffs’ evidence.” Id. We reached that conclusion 

even though he did not deny firing the shots. As to the 

unlawful stop claim, however, we held that we had 

jurisdiction to consider Hellawell’s appeal because he 

“raise[d] a purely legal issue: whether, based on undisputed 

facts, [he] violated clearly established law.” Id.

4 We recognize that some of our pre-Plumhoff decisions expressed 

this principle in less than precise language. See, e.g., Johnson v. Bay 

Area Rapid Transit Dist., 724 F.3d 1159, 1179 (9th Cir. 2013) (“To the

extent the district court relied upon disputed facts to deny [the defendant] 

immunity, we lack jurisdiction to review that denial.”).
14 ESTATE OF ANDERSON V. MARSH

Similarly, we ruled in Pauluk that we did not have 

jurisdiction over the portion of an interlocutory appeal 

challenging the factual determinations underlying a district 

court’s denial of qualified immunity. The defendants there 

allegedly exposed an employee to unsafe workplace 

conditions. Pauluk, 836 F.3d at 1119–20. We explained that 

we could not review the defendants’ “arguments that there 

was insufficient evidence to show that [the workplace] was 

unsafe, that the defendants acted with deliberate 

indifference, or that there was a causal relationship between 

the conditions at [the workplace] and [the employee’s] 

death.” Id. at 1121. By contrast, we held that we did “have 

jurisdiction, construing the facts and drawing all inferences 

in favor of Plaintiffs, to decide whether the evidence 

demonstrate[d] a [constitutional] violation by [the 

defendants], and whether such violation was in 

contravention of federal law that was clearly established at 

the time.” Id. (recognizing that these were “purely legal” 

questions); see also Advanced Bldg. & Fabrication, 

918 F.3d at 658 (explaining that we had interlocutory 

appellate jurisdiction because the defendant’s “claim of 

qualified immunity d[id] not turn on the resolution of any 

factual dispute”).5

5 These decisions are also consistent with our pre-Plumhoff caselaw. 

In George, for example, we refused to consider a factual dispute on 

interlocutory appeal even though the defendant officers admitted to 

participating in the shooting at issue. 736 F.3d at 834–36. The officers 

had fatally shot a man holding a gun, and they later testified that they 

fired because he had pointed the gun at them. Id. at 832–33, 833 n.4. 

We held that we lacked jurisdiction to review the officers’ contention 

that the plaintiff “could not ‘prove at trial’ that [the decedent] did not 

turn and point his gun” at the officers, because that argument went “to 

the sufficiency of [the] evidence.” Id. at 834 (quoting Johnson, 515 U.S. 

at 313). But we held that we could review the officers’ separate 
ESTATE OF ANDERSON V. MARSH 15

Foster, Pauluk, and Advanced Building & Fabrication 

have not been overruled by a Supreme Court decision or an 

en banc decision of our court. Nor are their holdings clearly 

irreconcilable with any intervening Supreme Court decision. 

We are therefore bound to apply the jurisdictional rule as 

they stated it. See Miller v. Gammie, 335 F.3d 889, 900 (9th 

Cir. 2003) (en banc).

B.

Applying the rule articulated in Foster, Pauluk, and 

Advanced Building & Fabrication, we conclude that we lack 

jurisdiction over this appeal because—in light of his 

concessions at oral argument—Marsh challenges only the 

district court’s determination that there is a genuine factual 

dispute as to whether Anderson appeared to reach for a 

weapon before Marsh shot him.

In denying Marsh’s summary judgment motion, the 

district court observed, citing Mattos v. Agarano, 661 F.3d 

433, 441 (9th Cir. 2011) (en banc), that “[t]he most 

important factor” in determining if Marsh’s use of force 

violated the Fourth Amendment “is whether [Anderson] 

posed an imminent threat to the safety of the officer or 

others.” The district court then identified several bases on 

which a jury could conclude, on the evidence in the record, 

that Anderson “did not make a sudden, furtive reach for the 

passenger side of [his] car,” and therefore that he did not 

pose an immediate threat to anyone when he was shot. 

Because of this factual dispute, the district court concluded 

argument that their conduct was constitutional even on the plaintiff’s 

version of the facts, because that argument raised a purely legal issue. 

Id. at 837–38.
16 ESTATE OF ANDERSON V. MARSH

that “[a] reasonable jury could find Officer Marsh’s use of 

deadly force . . . was excessive.”

Marsh’s interlocutory appeal contests the district court’s 

determination that there is a genuine factual dispute as to 

whether Anderson made a sudden movement. Marsh insists 

that “purported discrepancies in [the] evidence” were not 

“sufficient” to cast doubt on his account of the events, and 

that “contemporaneous evidence . . . corroborates [his] 

testimony” that Anderson made a furtive movement. Marsh 

urges us to conduct the qualified immunity analysis taking 

as true that Anderson made a “sudden movement as though 

he were reaching for a weapon,” and accordingly relies on 

caselaw holding “that use of deadly force was justified 

[where] a suspect . . . appeared to reach for, or brandish, a 

weapon.” In other words, rather than “advanc[ing] an 

argument as to why the law is not clearly established that

takes the facts in the light most favorable to [the Estate],” 

which we would have jurisdiction to consider, Marsh 

contests “whether there is enough evidence in the record for 

a jury to conclude that certain facts [favorable to the Estate] 

are true,” which we do not have jurisdiction to resolve. 

George, 736 F.3d at 835, 837.6 Indeed, Marsh conceded at 

6 Despite Marsh’s contention that the “Estate’s ‘fabrication’ theory 

is not supported by evidence, and thus is only speculation,” we do not 

understand him to be raising a “bare allegation” claim, over which we 

would have jurisdiction. See supra note 3. Rather, Marsh arrives at this 

conclusion by disputing the inferences that can be drawn from the 

evidence that the district court held supported the Estate’s version of 

events, such as the fact that no gun was found in the car and testimony 

that Marsh did not mention on the scene that he believed Anderson had 

a gun. Thus, Marsh’s appeal raises the precise type of evidencesufficiency challenge over which we lack jurisdiction. See Johnson, 

515 U.S. at 314 (explaining that interlocutory appellate jurisdiction is 

lacking when “a defendant simply wants to appeal a district court’s 

determination that the evidence is sufficient to permit a particular finding 
ESTATE OF ANDERSON V. MARSH 17

oral argument that he would have no claim to qualified 

immunity if the Estate’s version of events were found to be 

true.

Because we may not review on interlocutory appeal the 

question of evidence sufficiency Marsh raises, we must 

dismiss his appeal for lack of jurisdiction. See Foster, 

908 F.3d at 1210.

III.

For the foregoing reasons, we dismiss this interlocutory 

appeal for lack of jurisdiction.

DISMISSED.

W. FLETCHER, Circuit Judge, dissenting:

Johnson strikes again.

Officer John Marsh brought an interlocutory appeal after 

the district court, viewing disputed evidence in the light most 

favorable to the plaintiff, denied his motion for summary 

judgment based on qualified immunity. The district court 

determined, based on plaintiff's version of the disputed 

evidence, that there was sufficient evidence to defeat 

Marsh’s motion and go to trial. Relying on Johnson v. Jones, 

515 U.S. 304 (1995), and its progeny, the panel majority 

of fact”); cf. George, 736 F.3d at 834 (holding that this court lacked 

jurisdiction over one of the defendants’ arguments on appeal because 

“[a]lthough couched in the language of materiality, their argument 

actually goes to the sufficiency of [the plaintiff’s] evidence”).
18 ESTATE OF ANDERSON V. MARSH

holds that we do not have appellate jurisdiction. I 

respectfully dissent.

I am sympathetic with the panel majority, for the law in 

this area is extraordinarily confused.

The story begins with Mitchell v. Forsyth, 472 U.S. 511 

(1985), when the Supreme Court held that an order denying 

a public official’s motion for summary judgment based on 

qualified immunity is immediately appealable despite the 

interlocutory character of the order. Id. at 524–30. The 

standard for granting or denying a motion for summary 

judgment by the district court was not affected by Mitchell, 

but there was uncertainty about the circumstances in which 

an interlocutory appeal could be heard. Ten years after 

Mitchell, noting that “Courts of Appeals hold different views 

about the immediate appealability of . . . ‘evidence 

insufficiency’ claims made by public official defendants 

who assert qualified immunity defenses,” the Court granted 

certiorari in Johnson. 515 U.S. at 308–9.

The Court’s opinion in Johnson is puzzling. The 

plaintiff in Johnson sued five police officers for use of 

excessive force. Id. at 307. Three of the officers moved for 

summary judgment, arguing that there was no evidence that 

they had beaten plaintiff or had even been present when 

other officers had done so. Id. The district court denied 

qualified immunity to the three officers, finding that there 

was a genuine dispute of material fact as to whether they had 

been present. It held that “there was ‘sufficient 

circumstantial evidence supporting [plaintiff’s] theory of the 

case,’” id. at 308, and set the case for trial against all five 

officers. The three officers appealed the court’s 

interlocutory order denying summary judgment, contending 

that “the record contained ‘not a scintilla of evidence . . . that 

one or more’ of them had ‘ever struck, punched or kicked 
ESTATE OF ANDERSON V. MARSH 19

the plaintiff, or ever observed anyone doing so.’” Id. The 

Seventh Circuit held that it lacked appellate jurisdiction on 

interlocutory review over questions of “evidence 

insufficiency.” Id. The Supreme Court affirmed.

Because Mitchell did not change the summary judgment 

standard in qualified immunity cases, the district court views 

disputed evidence in such cases in the light most favorable 

to the plaintiff, just as it does in other summary judgment 

cases. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 

(1970). The most obvious way to implement Mitchell would 

have been to allow an interlocutory appeal to determine the 

correctness of the district court’s denial of defendant’s 

motion, whether the court (1) used defendant’s version of 

disputed evidence, (2) used plaintiff’s version of disputed 

evidence, viewing the evidence in the light most favorable 

to the plaintiff, or (3) used undisputed evidence. See 

Mitchell, 472 U.S. at 527 (addressing the first two 

alternatives). If an appellate court were to have jurisdiction 

on the second alternative ground, it would be able to address 

precisely the question decided by district courts in most 

qualified immunity cases. Yet as I read Johnson, the Court 

did not allow appellate jurisdiction on that ground. It 

allowed jurisdiction only on the first and third grounds. That 

is, it allowed jurisdiction only in cases where the district 

court relied on evidence the defendant did not dispute.

In denying appellate jurisdiction in Johnson—where the 

district court had viewed the evidence in the light most 

favorable to the plaintiff and had denied defendant’s motion 

for summary judgment—the Court wrote:

The order in question resolved a fact-related 

dispute about the pretrial record, namely, 

whether or not the evidence in the pretrial 

record was sufficient to show a genuine issue 
20 ESTATE OF ANDERSON V. MARSH

of fact for trial. We hold that the defendants 

cannot immediately appeal this kind of factrelated district court determination.

Id. at 307 (emphasis is original). The “fact-related dispute” 

in Johnson was whether the circumstantial evidence, which 

the officers disputed, was sufficient to deny summary 

judgment to the defendant officers.

The Court elaborated:

We . . . consider the appealability of a portion 

of a district court’s summary judgment order 

that, though entered in a “qualified 

immunity” case, determines only a question 

of “evidence sufficiency,” i.e., which facts a 

party may, or may not, be able to prove at 

trial. This kind of order, we conclude, is not 

appealable. That is, the District Court’s 

determination that the summary judgment 

record in this case raised a genuine issue of 

fact concerning petitioners’ involvement in 

the alleged beating of respondent was not a 

“final decision” within the meaning of the 

relevant statute.

Id. at 313. The “genuine issue of fact” was whether the 

defendant officers were “involve[d] in the alleged beating” 

of the plaintiff. Based on the evidence he would present to 

the factfinder at trial, the plaintiff “may, or may not, be able 

to prove” that fact.

Under my reading of Johnson, a court of appeals has 

jurisdiction only when a district court denies a defendant’s 

motion for summary judgment based on evidence that the 

defendant does not dispute. A court of appeals does not have 
ESTATE OF ANDERSON V. MARSH 21

jurisdiction when a district court denies a defendant’s motion 

for summary judgment based on evidence it assumes to be 

true but that a defendant disputes. By far the majority of 

denials of summary judgment motions are entered in such 

cases. That is, the vast majority of cases are those in which 

the district court determines a question of “evidentiary 

sufficiency,” assuming plaintiff’s evidence to be true and 

determining whether that evidence is sufficient to defeat 

defendant’s motion.

The purpose of qualified immunity is to protect officers 

from having to go to trial. Qualified immunity is “an 

immunity from suit rather than a mere defense to liability.” 

Mitchell, 472 U.S. at 526 (emphasis in original). Johnson 

frustrates the purpose of qualified immunity in cases where 

the district court, relying on plaintiff’s view of the evidence, 

mistakenly holds as a matter of law that an officer is not 

entitled to qualified immunity. The Court in Johnson 

explicitly recognized the limited protection provided by its 

holding:

We recognize that . . . [our holding] threatens 

to undercut the very policy (protecting public 

officials from lawsuits) that (the Mitchell 

Court held) militates in favor of immediate 

appeals. Nonetheless, the countervailing 

considerations that we have mentioned 

(precedent, fidelity to statute, and underlying 

policies) are too strong to permit the 

extension of Mitchell to encompass appeals 

from orders of the sort before us.

Id. at 317–18 (parentheticals in original).

Johnson has created persistent confusion as courts of 

appeals, including our own, have struggled to reconcile its 
22 ESTATE OF ANDERSON V. MARSH

apparent holding with the purpose of qualified immunity. I 

cite only a few out-of-circuit cases; I could cite many more. 

See, e.g., Diaz v. Martinez, 112 F.3d 1, 3 (1st Cir. 1997) 

(“The dividing line that separates an immediately appealable 

order from a nonappealable one in these purlieus is not 

always easy to visualize.”); Camilo-Robles v. Hoyos, 

151 F.3d 1, 8 (1st Cir. 1998) (“Cases are clear enough at the 

extremes. . . . [But d]etermining the existence vel non of 

appellate jurisdiction in cases closer to the equator is more 

difficult. . . . If this were not complex enough, the district 

judge is not legally obliged to explain the basis on which a 

denial of summary judgment rests.”); Walton v. Powell, 

821 F.3d 1204, 1209 (10th Cir. 2016) (“[W]e have struggled 

ourselves to fix the exact parameters of the Johnson

innovation.”); Barry v. O’Grady, 895 F.3d 440, 446 (6th 

Cir. 2018) (“Each of our too-many-to-count additional 

glosses on Johnson is needlessly complicated. . . .” (Sutton, 

J., dissenting)).

The confusion in our sister circuits is matched in our own 

circuit. In some cases, we have exercised appellate 

jurisdiction where genuine issues of material fact existed and 

the district court viewed the evidence in the light most 

favorable to the plaintiff. See, e.g., Orn v. City of Tacoma, 

949 F.3d 1167, 1171 (9th Cir. 2020) (affirming the district 

court’s denial of summary judgment) (“In an interlocutory 

appeal challenging the denial of qualified immunity, we 

must construe the facts in the light most favorable to the 

plaintiff.”); Tuuamalemalo v. Green, 946 F.3d 471, 476 (9th 

Cir. 2019) (affirming the district court’s denial of summary 

judgment) (“We have jurisdiction . . . to review the decision 

of the district court, viewing the facts in the light most 

favorable to Tuuamalemalo, the nonmoving party.”); 

Nicholson v. City of Los Angeles, 935 F.3d 685, 690 (9th Cir. 

2019) (reversing the district court’s denial of summary 
ESTATE OF ANDERSON V. MARSH 23

judgment) (“We have jurisdiction . . . to review the denial of 

qualified immunity at the summary judgment stage. . . .

[W]e are confined to the question of ‘whether the 

defendant[s] would be entitled to qualified immunity as a 

matter of law, assuming all factual disputes are resolved, and 

all reasonable inferences are drawn, in plaintiff’s favor.’”); 

Horton by Horton v. City of Santa Maria, 915 F.3d 592, 601 

(9th Cir. 2019) (reversing the district court’s denial of 

summary judgment) (“Based on these facts, which are taken 

in the light most favorable to [plaintiff], a reasonable officer 

would not have known that failing to attend to [him] 

immediately would be unlawful under the law at the time of 

the incident.”).

In other cases, including the case now before us, we have 

denied appellate jurisdiction. See, e.g., Johnson v. Bay Area 

Rapid Transit Dist., 724 F.3d 1159, 1179 (9th Cir. 2013) 

(“To the extent the district court relied upon disputed facts 

to deny [defendant] immunity, we lack jurisdiction to review 

that denial.”); Maropulos v. Cnty. of Los Angeles, 560 F.3d 

974, 975 (9th Cir. 2009) (“[H]is appeal raises issues having 

to do with sufficiency of the evidence over which we lack 

jurisdiction. . . . Accordingly, we dismiss.”); Thomas v. 

Gomez, 143 F.3d 1246, 1249 (9th Cir. 1998) (“[T]he 

resolution of this issue involves disputed issues of material 

fact that need to be resolved by a jury. Accordingly, we 

dismiss this appeal for lack of jurisdiction[.]”); Ram v. 

Rubin, 118 F.3d 1306, 1308 (9th Cir. 1997) (“To the extent 

that [defendant] Silva’s appeal requires the determination of 

a fact-related dispute, namely whether the evidence in the 

pretrial record is sufficient to show a genuine issue of fact 

for trial, we lack jurisdiction.”); Collins v. Jordan, 110 F.3d 

1363, 1374 (9th Cir. 1996) (“Reviewing the record to 

determine whether there is sufficient evidence to support 

[the district court’s] determination that there is a factual 
24 ESTATE OF ANDERSON V. MARSH

dispute . . . would require us to do what we lack jurisdiction 

to do under Johnson.”).

In some cases, we have tried to have it both ways. See, 

e.g., Foster v. City of Indio, 908 F.3d 1204, 1207, 1213, 1217 

(9th Cir. 2018) (“[W]e view the facts in the light most 

favorable to the nonmoving party,” “lack jurisdiction to 

consider [defendant’s] argument that we should reverse the 

district court’s determination that there was a genuine issue 

of material fact . . . relating to [defendant’s] fatal shooting of 

[the victim],” and determine “the district court erred in 

finding a genuine dispute as to whether [defendant] 

approached [the victim] with his gun drawn.”); George v. 

Morris, 736 F.3d 829, 836 (9th Cir. 2013) (“[W]e are 

confined to the question of ‘whether the defendant[s] would 

be entitled to qualified immunity as a matter of law, 

assuming all factual disputes are resolved, and all reasonable 

inferences are drawn, in plaintiff’s favor.’”). We wrote in 

Pauluk v. Savage, 836 F.3d 1117, 1121 (9th Cir. 2016):

Because we do not have jurisdiction over a 

district court’s determination that there are 

genuine issues of material fact, we cannot 

review [defendants’] arguments that there 

was insufficient evidence to show [a 

violation of clearly established law]. But we 

do have jurisdiction, construing the facts and 

drawing all inferences in favor of Plaintiffs, 

to decide whether the evidence demonstrates 

a violation by [defendants], and whether such 

violation was in contravention of federal law 

that was clearly established at the time.

I wrote the opinion in Pauluk and now confess error. I 

tried to find daylight between deciding (a) defendant’s 
ESTATE OF ANDERSON V. MARSH 25

motion for summary judgment based on “evidentiary 

insufficiency” (resulting in no jurisdiction), and (b) deciding 

that same motion after viewing disputed evidence in the light 

most favorable to plaintiff (resulting in jurisdiction). But, as 

I read Johnson, there is no daylight between (a) and (b). 

They are different ways of saying the same thing. 

“Evidentiary sufficiency” is what a court determines when it 

views disputed evidence in the light most favorable to the 

non-moving party and then decides a summary judgment 

motion based on the evidence so viewed.

The Supreme Court has largely ignored Johnson. In the 

post-Johnson era, the Court initially heard interlocutory 

appeals without mentioning Johnson. The Court decided 

appeals on the merits, without addressing jurisdiction, in 

three cases in which two district courts and one court of 

appeals had denied officers’ motions for summary judgment 

based on qualified immunity after having made 

determinations of “evidentiary sufficiency.”

In Saucier v. Katz, 533 U.S. 194 (2001), plaintiff Katz 

sued Saucier, a military police officer, under Bivens v. Six 

Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), 

alleging excessive use of force. Saucier moved for summary 

judgment based on qualified immunity. The district court 

denied summary judgment, holding that there was “a dispute 

on a material fact . . . concerning whether excessive force 

was used.” 533 U.S. at 199. Saucier brought an 

interlocutory appeal, which the Ninth Circuit heard and 

decided. On certiorari, the Supreme Court recited the 

standard for summary judgment where there are disputed 

facts: “A court required to rule upon the qualified immunity 

issue must consider . . . this threshold question: Taken in the 

light most favorable to the party asserting the injury, do the 

facts alleged show the officer’s conduct violated a 
26 ESTATE OF ANDERSON V. MARSH

constitutional right?” Id. at 201. The Court then decided 

Saucier’s interlocutory appeal, reversing the denial of 

summary judgment, without questioning its own appellate 

jurisdiction or that of the Ninth Circuit.

In Brosseau v. Haugen, 543 U.S. 194 (2004), plaintiff 

Haugen sued Brosseau, a police officer, under 42 U.S.C. 

§ 1983, alleging excessive use of force. The district court 

granted summary judgment to Brosseau based on qualified 

immunity. The Ninth Circuit, viewing disputed evidence in 

the light most favorable to plaintiff Haugen, held that the 

evidence, so viewed, was sufficient to support a verdict for 

plaintiff. The court reversed and remanded for trial. 

Without questioning its own appellate jurisdiction, the Court 

reversed, writing: “The material facts, construed in a light 

most favorable to Haugen, are as follows.” Id. at 195. Later 

in its opinion, the Court recited the language from Saucier: 

“Taken in the light most favorable to the party asserting the 

injury[.]” Id. at 197.

In Scott v. Harris, 550 U.S. 372 (2007), the plaintiff sued 

Scott, a police officer, under 42 U.S.C. § 1983, alleging 

excessive use of force. Scott moved unsuccessfully for 

summary judgment based on qualified immunity. The Court 

noted that “[t]he District Court denied the motion, finding 

that there are material issues of fact on which the issue of 

qualified immunity turns which present sufficient 

disagreement to require submission to a jury.” Id. at 376 

(internal quotation marks omitted). Scott brought an 

interlocutory appeal. The Eleventh Circuit “[took 

plaintiff’s] view of the facts as given” and affirmed. Id.

In the Supreme Court, the parties in Scott argued 

vigorously for and against appellate jurisdiction, based on 

conflicting interpretations of Johnson. Resp’t’s Br., 2007 

WL 118977, at *1–3; Pet’r’s Reply Br., 2007 WL 760511, 
ESTATE OF ANDERSON V. MARSH 27

at *1–5. The American Civil Liberties Union (“ACLU”) 

filed an amicus brief devoted solely to arguing, based on 

Johnson, that there was no interlocutory appellate 

jurisdiction. The ACLU wrote:

Here, the district court’s denial of Petitioner 

Scott’s summary judgment motion expressly

determined that the pretrial record set forth a 

genuine issue of fact for trial. . . . As in 

Johnson v. Jones, therefore, the district court 

order in this case identified a fact-related 

dispute about the pre-trial record. Its holding 

that the evidence in the pre-trial record was 

sufficient to show a genuine issue of fact for 

trial is, thus, not appealable.

ACLU Amicus Br., 2007 WL 139201, at *6.

The Supreme Court did not acknowledge the parties’ 

dispute about the availability of appellate jurisdiction under 

Johnson. It simply decided the merits, holding that the 

officer was entitled to qualified immunity. The Court wrote:

The first step in assessing the 

constitutionality of Scott’s actions is to 

determine the relevant facts. As this case was 

decided on summary judgment, there have 

not yet been factual findings by a judge or 

jury, and respondent’s version of events 

(unsurprisingly) differs substantially from 

Scott’s version. When things are in such a 

posture, courts are required to view the facts 

and draw reasonable inferences “in the light 

most favorable to the party opposing the 

[summary judgment] motion.” In qualified 

immunity cases, this usually means adopting 
28 ESTATE OF ANDERSON V. MARSH

(as the Court of Appeals did here) the 

plaintiff’s version of the facts.

Scott, 550 U.S. at 378 (emphasis added; alterations in 

original and citations omitted).

In none of these three cases, including Scott, did the 

Court cite, or in any way acknowledge, its holding in 

Johnson that there is no appellate jurisdiction in a case in 

which the district court decides a “fact-related dispute,” 

determines a question of “evidentiary sufficiency,” and 

denies summary judgment based on the plaintiff’s version of 

disputed evidence.

In Plumhoff v. Rickard, 572 U.S. 765 (2014), the Court 

finally acknowledged the tension between Johnson and its 

post-Johnson practice. Plaintiff was the daughter of the 

driver of a fleeing car who had been shot and killed by police 

officers. She brought suit under 42 U.S.C. § 1983, alleging 

excessive use of force. The district court denied the officers’ 

motion for summary judgment based on qualified immunity. 

A motions panel of the Sixth Circuit initially dismissed the 

officers’ appeal under Johnson on the ground that it lacked 

jurisdiction. On rehearing, the motions panel vacated its 

dismissal and referred the jurisdictional issue to a merits 

panel. Id. at 770. The merits panel interpreted Scott as 

having created an “exception” to Johnson, allowing an 

interlocutory appeal “to challenge blatantly and 

demonstrably false factual determinations.” Id. at 771 

(internal quotation marks omitted). The merits panel heard 

the appeal and affirmed the district court’s denial of 

summary judgment.

As in Scott, the parties argued vigorously in the Supreme 

Court for and against interlocutory appellate jurisdiction. 

Resp’t’s Br., 2014 WL 411285, at *4–5; Pet’r’s Reply Br., 
ESTATE OF ANDERSON V. MARSH 29

2014 WL 689547, at *1–3. Ohio and twenty-one other states 

filed an amicus brief devoted almost entirely to Johnson. 

They wrote in their brief:

The Court should resolve this jurisdictional 

issue because the circuit courts have 

erratically applied Johnson. And their 

confusion about Johnson’s domain has only 

increased after Scott v. Harris, 550 U.S. 372 

(2007), which rejected a district court’s 

version of the disputed facts in the process of 

finding a police officer entitled to qualified 

immunity.

States’ Amicus Br., 2014 WL 69402, at *2.

Even though there were disputed questions of material 

fact in Plumhoff, the Court heard the appeal on the merits, 

holding that the officers were entitled to qualified immunity. 

The Court accepted plaintiff’s version of disputed facts, 

viewed in the light most favorable to the plaintiff. It wrote:

Because this case arises from the denial of the 

officers’ motion for summary judgment, we 

view the facts in the light most favorable to 

the nonmoving party, the daughter of the 

driver who attempted to flee.

Id. at 768. It wrote further:

The District Court order here is not materially 

distinguishable from the District Court order 

in Scott v. Harris, and in that case we 

expressed no doubts about the jurisdiction of 

the Court of Appeals under § 1291. 

Accordingly, here, as in Scott, we hold that 
30 ESTATE OF ANDERSON V. MARSH

the Court of Appeals properly exercised 

jurisdiction, and we therefore turn to the 

merits.

Id. 773. 

In exercising appellate jurisdiction, the Court in 

Plumhoff did not acknowledge what it had written in 

Johnson about “evidentiary sufficiency,” and it did not 

dismiss the appeal. Instead, it distinguished Johnson on an 

unrelated and irrelevant ground. It wrote, “The District 

Court order in this case is nothing like the order in Johnson.” 

Plumhoff, 572 U.S. at 773. Johnson was different, according 

to the Court in Plumhoff, because the three police officers in 

Johnson contended that they had not been present at the 

beating and had been in no way involved. By contrast, the 

Court wrote in Plumhoff, “Petitioners do not claim that other 

officers were responsible for shooting Rickard; rather, they 

contend that their conduct did not violate the Fourth 

Amendment and, in any event, did not violate clearly 

established law.” Id. Just as in Saucier, Haugen, and Scott, 

the Court in Plumhoff never acknowledged Johnson’s 

holding that there is no appellate jurisdiction when a court, 

relying on plaintiff’s disputed evidence, determines a 

question of “evidentiary sufficiency.”

In the four post-Johnson cases just cited, the Supreme 

Court heard appeals in cases where the courts below (three 

district courts and one court of appeals) denied summary 

judgment based on plaintiff’s version of disputed evidence. 

All four cases are inconsistent with Johnson’s holding that 

there is no appellate jurisdiction where a court determines 

“evidentiary insufficiency” based on plaintiff’s version of 

disputed evidence.
ESTATE OF ANDERSON V. MARSH 31

After Plumhoff, in a case where the district court has 

denied a motion for summary judgment based on qualified 

immunity, the rule now appears to be the following: When 

a district court relies on plaintiff’s version of disputed 

evidence in denying the motion for summary judgment, a 

court of appeals may generally exercise interlocutory 

appellate jurisdiction. Only when officers provide disputed 

evidence showing that they were not present, and were in no 

way involved in the challenged conduct, is an appellate court 

without jurisdiction to hear the officers’ interlocutory 

appeal. It is distinctly counterintuitive that this should be the 

remnant of Johnson that survives. Officers who present 

evidence that they were not even at the scene are among the 

officers who most deserve the protection of interlocutory 

appeals. But I have difficulty reading the combination of 

Johnson, Saucier, Haugen, Scott, and Plumhoff any other 

way.

Post-Plumhoff decisions by the Court are consistent with 

this view. In Mullenix v. Luna, 577 U.S. 7 (2015), state 

trooper Mullenix, standing on an overpass, shot into a 

fleeing car on the highway below, killing the driver. The 

estate of the driver and others sued Mullenix, alleging 

excessive force. Viewing disputed evidence in the light most 

favorable to plaintiffs, the district court denied Mullenix’s 

motion for summary judgment based on qualified immunity. 

The Fifth Circuit affirmed. In a per curiam opinion, the 

Supreme Court reversed, writing, “Although Mullenix 

disputes [certain evidence], we view the facts in the light 

most favorable to respondents, who oppose Mullenix’s 

motion for summary judgment.” Id. at 9 n.*.

In White v. Pauly, 137 S. Ct. 548 (2017), a police officer 

shot and killed Samuel Pauly who was standing at an open 

window holding a handgun. Police officers surrounding the 
32 ESTATE OF ANDERSON V. MARSH

house may have acted in a manner that caused Pauly and his 

brother to form a reasonable belief that the officers were 

private individuals threatening their safety. Pauly’s estate 

and the surviving brother sued the officers, including the 

shooter, alleging excessive force. Viewing the facts in the 

light most favorable to plaintiffs, the district court denied a 

motion for summary judgment based on qualified immunity. 

The Tenth Circuit affirmed. In a per curiam opinion, the 

Supreme Court reversed, writing, “The District Court denied 

the officers’ motions for summary judgment, and the facts 

are viewed in the light most favorable to the Paulys.” Id. 

at 550 (citing Mullenix, 577 U.S. at 9 n.*).

In neither Mullenix nor Pauly did the Supreme Court 

refer to Johnson. The Court referred to Plumhoff in both 

cases, but only with respect to its holding on the merits. 

Mullenix, 557 U.S. at 14–15; Pauly, 137 S. Ct. at 552. In 

neither case did the Court express any doubt about the 

appellate jurisdiction of the Fifth and Tenth Circuits. And in 

neither case did any of the defendant officers dispute that 

they were present at the scene.

The case now before us does not belong in the narrow 

category of cases still apparently governed by Johnson. The 

panel majority accurately recounts the factual dispute. 

Viewing the disputed evidence in the light most favorable to 

plaintiff, the district court denied qualified immunity to 

Officer Marsh. Marsh does not dispute that he was at the 

scene. Indeed, he concedes that he shot Anderson. 

Therefore, under Plumhoff (as well as Mullenix and Pauly) 

we have jurisdiction to hear this appeal.

I close with a plea to the Supreme Court. As is evident 

from this case and countless others, the Court’s Johnson 

jurisprudence has confused courts of appeals for twenty-five 

years. Plumhoff is the only case in which the Supreme Court 
ESTATE OF ANDERSON V. MARSH 33

has even acknowledged the confusion. Unfortunately, 

Plumhoff and post-Plumhoff cases have only perpetuated it. 

I respectfully ask the Supreme Court to tell us clearly, in an 

appropriate case, whether and in what circumstances an 

interlocutory appeal may be taken when the district court, 

viewing disputed evidence in the light most favorable to 

plaintiff, has denied a motion for summary judgment based 

on qualified immunity.