### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50990 Summary Calendar

KIRK H. SMITH, Plaintiff - Appellee
v. STEVEN SMITH, Police Officer, Badge #1459, Individually and in his official capacity as a Police Officer with the City of El Paso Police Department; JOEL HOYER, Sergeant, Badge #1573, Individually and in his official capacity as a Police Officer with the City of El Paso Police Department; FRANCISCO P. NUNEZ, JR., Sergeant, Badge #1584, Individually and in his official capacity as a Police Officer with the City of El Paso Police Department; CRUZ MORALES, Police Officer, Badge #2457, Individually and in his official capacity as a Police Officer with the City of El Paso Police Department; MICHAEL CORTEZ, Police Officer, Badge #2244, Individually and in his official capacity as a Police Officer with the City of El Paso Police Department, Defendants - Appellants

Appeal from the United States District Court for the Western District of Texas, El Paso

USDC No. 3:08-CV-147

Before KING, JOLLY, and GRAVES, Circuit Judges. PER CURIAM: * U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D May24 , 20 12 Lyle W . Cayce Clerk

Pur sua nt to 5 T H C IR . R. 47. 5, thecourthas d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. Case: 11-50990 Document: 00511866038 Page: 1 Date Filed: 05/24/2012No. 11-50990

Police officers appeal the denial of their motion for summary judgment, on the grounds of qualified immunity. Bec a u s e t h i s appeal turns on a factual dispute we DISMISS for lack of jurisdiction. I. On May 2, 2006, the El Paso Police Department deployed police officers to Kirk Smith’s home after learning that Smith had menaced a piz za delivery
person. When officers knocked on Smith’s door, he appeared at a front window to the home with a flashlight and a gun. One of the officers acted as if he were going to shoot Smith until other officers moved into the potential line of f i r e. The officers yelled through the door, instructing Smith to put the gun away and

come outside. Smith put his gun away, but refused to exit his home f o r some time. Smith eventually exited his ho m e c a r ryi n g a can in one hand. As he walked out of his home, he stooped down to pick something up off of the ground, at which point the o f f i c e r s s hot him with bean bag guns. Smith sustained injuries for which he received treatment at a hospital. On April 30, 2008, Smith filed the instant action under 42 U.S.C. § 19 83 in the United States District Court for the Western District of Texas. His complaint asserts that the officers vi o l a t e d his Fourth Amendment right to be free from unreasonable search and seizure and excessive force. T h e o f ficers moved for su m m a ry judgment, arguing that they were entitled to qualified immunity. The district court, citing numerous discrepancies in the p a rties’ respective factual accounts of the incident, denied the motion. The officers appeal.

R. 47.5 .4. 2 Case: 11-50990 Document: 00511866038 Page: 2 Date Filed: 05/24/2012No. 11-50990 II. A. Qualified immunity shields governm e n t officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory

or constitut i onal rights of which a reasonable person would have known.” Harlow v. Fitz

ge ra ld , 457 U.S. 800, 818 (1982). On interlocutory appeals of orders denying qualified immunity, we have jurisdiction to decide only whether the facts assumed by the district court evince reasonableness on the part of the government officials, not whether those facts are supported in t he summary judgment record. Brown v. Strain , 663 F.3d 245, 249-50 (5th Cir. 2 011). Cognizan t of this limitation on our jurisdiction, the officers go to great lengths to justify why this appeal concerns the legal significance of the disputed facts, and not whether those f a c t s a r e s upported in the record. We are unconvinced. The thrust of the officers’ argument on appeal is that firing bean bags at Smith was reasonable because the officers reasonably believed at the time that Smith was holding a gun, not a can. See Graham v. Connor , 490 U.S. 386, 396 (1989). As the officers concede, however, the reasonableness of that belief depends on how clearly Smith displayed his hands and how cooperative Smith was with the officers’ instructions as Smith was exiting his home. The district court determined that these facts—the clarity with which Smith displayed his hand s a n d the extent of his cooperation with the officers’s instructions—were

3 Case: 11-50990 Document: 00511866038 Page: 3 Date Filed: 05/24/2012No. 11-50990

disputed. We lack jurisdiction to review that critical determ i n a tion. Brown ,

1 663 F.3d at 249-50. B. The appellant officers also argue that appellants Joel Hoyer and Steven Smith cannot be liable because they did not participate in the bean bag shooting and were not in the immediate vi c i ni t y where the shooting occurred. This argument, which is absent from the officers’ motion for summary judgment, is raised for the first time on appeal. Accor di n gly , w e will not consider it. See Lofton v. McNeil Consumer & Specialty Pharm. , 672 F.3d 372, 380-81 (5th Cir. 2012). III. For the foregoing reasons, we lack jurisdiction ove r t h i s interlocutory appeal. DISMISSED.

The dis tri ct court’s ord er st ates tha t Vi c t o r Vela, wh o is no longer a par ty to this 1 act ion, coul d se e that Sm ith held “a can in one hand and noth ing in the othe r. ” In othe r wo rd s, th e r e i s r e cor d evide nce that Sm ith’ s hands we re clea rly dis playe d. The cour t’s ord er als o st ates t hat the rec ord is uncle ar on “w heth er Plaint iff wa s in fac t res ist ant to law enf orc em ent, ” me aning ther e is so me sugges tio n in the rec ord that Sm ith coo per ated wi th the off icer s’in st ruc tio ns. 4 Case: 11-50990 Document: 00511866038 Page: 4 Date Filed: 05/24/2012