972 F.3d 170
2d Cir.2020Background
- On July 4, 2014, police were dispersing a house party in Syracuse; Mario Franco approached a friend’s parked car near the scene.
- Franco and a passenger (Elijah) both testified they did not hear any police dispersal order; officers say loudspeaker announcements were made and that Franco ignored commands.
- Officers Gunsalus and Kelly confronted, fought with, and arrested Franco; Franco alleges excessive force, failure to intervene, false arrest, malicious prosecution, due‑process and illegal seizure claims; the City was sued under Monell.
- Franco was acquitted in state court; in the §1983 suit the district court granted most summary judgment motions but denied summary judgment as to failure to intervene (Kelly), false arrest and malicious prosecution (Gunsalus and Kelly), and denied qualified immunity based on genuine factual disputes about whether a dispersal order was given.
- Officers appealed interlocutorily from the denial of qualified immunity. The Second Circuit concluded it lacked appellate jurisdiction because the denial rested on unresolved factual disputes that must be decided at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an interlocutory appeal lies from denial of qualified immunity when the denial rests on genuine factual disputes | Franco: disputed facts (he and Elijah did not hear an order) create a jury issue so denial is not immediately appealable | Officers: denial is a final appealable decision turning on law (qualified immunity) and should be reviewable | Court: Dismissed for lack of appellate jurisdiction because denial depended on disputed facts (not a purely legal ruling) |
| Whether district court erred as a matter of law finding a genuine dispute about whether a dispersal order was given | Franco: testimony that he and Elijah did not hear any order creates a genuine issue of material fact | Officers: record shows announcements were made; Franco only says he didn’t hear them, not that none were given | Court: No legal error — credibility/factual dispute appropriate for jury; denial stands |
| Whether an appellate court may review a district court’s determination that the plaintiff’s evidence is sufficient to create a triable fact issue (evidence‑sufficiency question) | Franco: sufficiency findings that create factual disputes are not appealable | Officers: contest sufficiency and seek review | Court: Johnson v. Jones bars interlocutory review of pure evidence‑sufficiency rulings; appellate jurisdiction lacking here |
| Whether defendants could obtain review by accepting plaintiff’s version of facts or by showing arguable probable cause despite no order | Franco: accepting plaintiff’s factual account would not support qualified immunity | Officers: can accept plaintiff’s facts for appeal or argue arguable probable cause based on officers’ perceptions | Court: Officers did not accept plaintiff’s facts for purposes of appeal nor sufficiently argue arguable probable cause; thus no basis to exercise jurisdiction |
Key Cases Cited
- Mitchell v. Forsyth, 472 U.S. 511 (denial of qualified immunity that turns on an issue of law is immediately appealable)
- Johnson v. Jones, 515 U.S. 304 (district court rulings limited to evidence‑sufficiency are not appealable)
- Reyes v. Fischer, 934 F.3d 97 (2d Cir.: dismissal for lack of jurisdiction where factual disputes prevent review of qualified immunity)
- Tooly v. Schwaller, 919 F.3d 165 (2d Cir.: appellate jurisdiction may be exercised if defendants accept plaintiff’s version of facts for appeal)
- Muschette on Behalf of A.M. v. Gionfriddo, 910 F.3d 65 (2d Cir.: focus on whether officer reasonably could believe orders were given where plaintiffs did not dispute that orders were made)
- Taylor v. Rogich, 781 F.3d 647 (2d Cir.: reiterating Johnson rule that evidence‑sufficiency denials of qualified immunity are not appealable)
- Brown v. Halpin, 885 F.3d 111 (2d Cir.: lack of jurisdiction where qualified immunity depends on unresolved factual disputes)
- Garcia v. Does, 779 F.3d 84 (2d Cir.: describing "arguable probable cause"/qualified immunity standard)