IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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:*

United States Court of Appeals

Fifth Circuit

F I L E D

May 24, 2012

Lyle W. Cayce

Clerk

 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.

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No. 11-50990

Police officers appeal the denial of their motion for summary judgment, on

the grounds of qualified immunity. Because this 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 pizza 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 fire. 

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 for some

time.

Smith eventually exited his home carrying 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 officers shot 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. § 1983 

in the United States District Court for the Western District of Texas. His

complaint asserts that the officers violated his Fourth Amendment right to be

free from unreasonable search and seizure and excessive force. The officers

moved for summary judgment, arguing that they were entitled to qualified

immunity. The district court, citing numerous discrepancies in the parties’

respective factual accounts of the incident, denied the motion. The officers

appeal.

R. 47.5.4.

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II.

A.

Qualified immunity shields government officials “from liability for civil

damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” 

Harlow v. Fitzgerald, 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 the summary

judgment record. Brown v. Strain, 663 F.3d 245, 249-50 (5th Cir. 2011). 

Cognizant 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 facts are supported 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

hands and the extent of his cooperation with the officers’s instructions—were

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disputed. We lack jurisdiction to review that critical determination. Brown,

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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 vicinity where the shooting occurred. This

argument, which is absent from the officers’ motion for summary judgment, is

raised for the first time on appeal. Accordingly, we 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 over this interlocutory

appeal.

DISMISSED.

The district court’s order states that Victor Vela, who is no longer a party to this 1

action, could see that Smith held “a can in one hand and nothing in the other.” In other words,

there is record evidence that Smith’s hands were clearly displayed. The court’s order also

states that the record is unclear on “whether Plaintiff was in fact resistant to law

enforcement,” meaning there is some suggestion in the record that Smith cooperated with the

officers’ instructions. 

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