Brian BULTEMA, Plaintiff-Appellee, v. BENZIE COUNTY, Mark Ketz, Defendants-Appellants, Thomas C. Anderson, Crystal Mountain Enterprises, Inc., Defendants.
No. 04-1772
United States Court of Appeals, Sixth Circuit
Aug. 17, 2005
Last, denial of the continuance led to identifiable injustice, as it deprived McClendon the chance to investigate into his only defense, which, if proven true, would have been detrimental to his co-defendants.
Considering the factors listed above, we find that continuance would have been proper under the facts of the present case.
Furthermore, the district court erred in its refusal to consider an ex parte pleading. Although rare, ex parte pleadings are necessary at times by both the defense and prosecution. The need to protect the identity of a confidential informant, the potential threat of harm to a witness, the desire to preserve the identity of a witness until counsel has an opportunity to interview him, and the desire to not disclose a defense strategy have all been used in ex parte applications to the court. Cf. United States v. Moussaoui, No. CRIM.01-455-A, 2002 WL 1311724, at *1 (E.D.Va. April 26, 2002).
For the reasons listed above, we find that McClendon suffered prejudice to a degree which requires reversal of his conviction and remand for a new trial.
For the foregoing reasons, the district court‘s refusal to grant the motion to continue is REVERSED and the case is REMANDED for a new trial.
David J. Bedells, David J. Bedells, P.C., Beulah, MI, for Defendants-Appellants.
Before RYAN, MOORE, and COOK, Circuit Judges.
RYAN, Circuit Judge, concurring in part and dissenting in part.
MOORE, Circuit Judge.
In this case, Defendants-Appellants, Benzie County (the “County“) and Sheriff‘s Deputy Mark Ketz (“Ketz“) (collectively, the “Appellants“), appeal the district court‘s denial of their motion for summary judgment. Plaintiff-Appellee Brian Bultema (“Bultema“) brought suit against the Appellants pursuant to
This case arises out of a dispute between Bultema and Thomas C. Anderson (“Anderson“), a security officer working at Crystal Mountain Resort (the “Resort“). Because of a closed-head injury suffered during the incident, Bultema does not recall the events of that evening. Nevertheless, given that we are reviewing the denial of a summary judgment motion, we must view the facts as relayed by the other witnesses as well as draw all reasonable inferences in the light most favorable to Bultema, the nonmoving party.
Bultema‘s family has owned a chalet at the Resort for more than thirty years. At the time of the incident, Sherard Stariha (“Stariha“), a family friend, was living in the chalet and working for the Resort on the ground-maintenance staff. Bultema,
After becoming separated from Stariha, Bultema rode his snowmobile to the snow maintenance building, presumably in search of Stariha. The snow maintenance building houses the Resort‘s maintenance equipment and was always unlocked and occupied. Anderson, a Resort security officer, was in the building awaiting some of his co-workers. Upon seeing Bultema, Anderson approached him and asked who he was and what he was doing in the building, to which Bultema did not respond. Anderson believed Bultema was intoxicated because of his movements and the smell of alcohol emanating from him. Stariha disputes this characterization of Bultema, and noted in his deposition that Bultema was on probation at the time and was tested for alcohol every day at the Benzie County Sheriff‘s Department. Anderson stated that after several more attempts to question Bultema about his presence in the building, Bultema responded “I know who you are. You‘re Tom Anderson. I‘ve been here forever. I don‘t need to go.” Joint Appendix (“J.A.“) at 161 (Anderson Dep. at 51). Anderson explained that at that point, he told Bultema he had to go and attempted to escort him out of the building. According to Anderson, Bultema became very agitated with him and began yelling at him. Anderson then placed his hand on Bultema‘s shoulder and guided him out the door. Anderson has given conflicting statements as to the level of force used to escort Bultema out of the snow maintenance building. Compare J.A. at 162 (Anderson Dep. at 57) (“It was not a push. It was more a pleasantry like when you‘re done talking to somebody, give him a pat on the back, push situation, kind of thanks.“) with J.A. at 221 (Bond Revocation Hr‘g Tr. at 23) (“So, I opened the door for him and pushed him out the door.“). As he walked out the door, Bultema fell down and accused Anderson of pushing him. According to Anderson, Bultema was yelling at him, accusing him of assault. At that point, Bultema got back on the snowmobile and rode away.
Back at the chalet, Stariha was watching television when Bultema arrived and recounted the incident with Anderson to him. Soon afterwards, Bultema went to bed, while Stariha fell asleep on the couch. Meanwhile, back at the snow maintenance building, Anderson called the Benzie County Sheriff‘s Department and asked to speak to a deputy about the incident. Shortly thereafter, Ketz, a Benzie County Sheriff‘s Deputy, arrived at the Resort. Anderson explained the situation to Ketz and stated he wanted to go talk to Bultema to tell him to stay out of the Resort‘s buildings at nighttime. Anderson did not know Bultema personally, but he did know that Bultema was Stariha‘s roommate. Anderson and Ketz then proceeded to the chalet. Ketz stated in his deposition that he did not intend to issue a citation or make an arrest, but rather simply to help Anderson have a conversation with Bultema.
Anderson and Ketz arrived at the chalet between 2:00 and 2:30 in the morning and parked their vehicles out of sight. There were no lights on in the chalet. Anderson and Ketz walked up onto the porch of the chalet and to the door. Stariha, who was asleep on the couch, woke up from the sound of pounding on the front door. The
At this point, Bultema woke up and came out into the foyer and stated “Tom Anderson, what are you doing here? Get off my property.” J.A. at 124 (Stariha Dep. at 23). As Bultema approached the door, Stariha placed himself between Bultema and Anderson, who was still on the other side of the screen door. Anderson explained in his deposition that while he was trying to instruct Bultema to stay out of the buildings at night, Bultema continued to yell at him to leave the chalet. Stariha stated that “Officer Ketz didn‘t say a thing. Well, at this point because Mr. Ketz was still in the position alongside the door, Mr. Bultema had no idea he was even present.” J.A. at 124 (Stariha Dep. at 24). Bultema kept telling Anderson to leave the property and was pushing Stariha, who was still trying to stay between the two men, closer to the screen door. Stariha stated in his deposition that he believes that as Bultema got closer to Anderson, Bultema bumped Stariha into the screen door which opened outward and struck Anderson. J.A. at 125 (Stariha Dep. at 25). By contrast, Anderson and Ketz stated that Bultema opened the door and kicked Anderson in the knee. J.A. at 171 (Anderson Dep. at 90); J.A. at 235 (Ketz Dep. at 42). At that point, Ketz opened the screen door and shouted to Bultema that he was under arrest for assault but did not identify himself as a police officer. Stariha explained in his deposition that “basically [Bultema] didn‘t know the man was a policeman. He had never been identified. He thought Tom Anderson was here with one of his buddies to, you know, cause a little bit of trouble. So Ketz reached out to grab towards [Bultema] and [Bultema] duckered him; [Bultema] hit him.” J.A. at 125 (Stariha Dep. at 26).
As Ketz fell back against the railing of the porch, both Anderson and Bultema reached for their respective sides of the screen door handle. Bultema‘s hand slipped and he fell backwards into the chalet, at which point Anderson entered the chalet and jumped on him. The two crashed into a dining room table, but eventually Anderson was able to get a hold of Bultema and began forcing him back outside. After recovering from the hit to the head, Ketz entered the chalet as well and aided Anderson in forcing Bultema onto the porch. Anderson and Ketz slammed Bultema into the porch railing and attempted to handcuff him. After a protracted struggle, Ketz eventually was able to place handcuffs on Bultema. Stariha stated in his deposition that Bultema had “lost a little bit of his struggle” but continued to squirm even though he was in handcuffs, at which point Ketz sprayed pepper gas in Bultema‘s face. J.A. at 127 (Stariha Dep. at 34). Anderson and Ketz dispute
At this point, Stariha picked up the phone and began calling an attorney. As he was making the call, he heard Bultema continue to yell obscenities at Anderson and Ketz. Stariha stated that “some of the very first words I heard out of Ketz was ‘shut up’ and then I heard a whack and a thud [and] a vibration on the front of the house.” J.A. at 128 (Stariha Dep. at 39). Stariha stated in his deposition that “I turned around and I saw Ketz recoiling. He had a zip glove on and he had just hit Mr. Bultema on the side of the head. Of course Mr. Bultema‘s head hit the side of the house, the metal door frame.” J.A. at 128 (Stariha Dep. at 39). Stariha also stated that following the blow, he saw Bultema “kind of in a fetal position, but still on his knees with his forehead on the ground.” J.A. at 129 (Stariha Dep. at 41). Ketz disputes the fact that he struck Bultema. J.A. at 238 (Ketz Dep. at 55). Bultema was taken away by another sheriff‘s deputy and transferred to the emergency room of Paul Oliver Hospital for treatment. He was later released to the Benzie County Sheriff‘s Department for incarceration. Ultimately, the prosecutor voluntarily dropped all four criminal charges against Bultema.
On January 21, 2003, Bultema brought this suit pursuant to
A. Jurisdiction
Though Ketz raised the issue of qualified immunity in his motion for summary judgment, J.A. at 103 (Defs.’ Mot. to Dismiss or, in the Alternative, Mot. for Summ. J. at 3), the district court did not specifically address the issue in its cursory opinion. The district court simply stated that the deposition testimony was “sufficient to create genuine issues of material fact as to liability.” J.A. at 57 (Dist. Ct. Op. at 3). As the Supreme Court has noted, however, a government official‘s claim of qualified immunity is an assertion of a “right not to stand trial on the plaintiff‘s allegations.” Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). Therefore, by denying Ketz‘s motion for summary judgment, the district court implicitly found that Ketz was not entitled to qualified immunity.
“[A] district court‘s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of
In this case, there are several factual disputes critical in determining liability which preclude Ketz‘s motion for summary judgment. Specifically, there are material factual disputes about what exactly occurred during the incident: whether Bultema ever kicked Anderson or Anderson instead was hit by the screen door, whether Ketz applied the pepper spray to Bultema after he was already handcuffed, and whether Ketz ever hit Bultema in the head. The district court also found that there was a genuine factual dispute about whether Ketz was even acting in his capacity as a sheriff‘s deputy or instead as a private security guard. To the extent that any part of Ketz‘s argument raises these factual issues, we are without jurisdiction to hear his interlocutory appeal.
In his brief to this court, Ketz does not raise these factual issues, however, but instead argues that even under Bultema‘s alleged facts, he is entitled to qualified immunity. See Appellants’ Br. at 19 (noting that “even if Appellee‘s facts are accepted as true, his allegations fail to establish Constitutional violations“). Thus, the sole issue presented before us is a “neat abstract issue of law,” Turner, 119 F.3d at 428, whether the facts as alleged by Bultema in this case demonstrate a violation of a clearly established constitutional right. Accordingly, we have jurisdiction pursuant to
B. Standard of Review
“Because review of a denial of qualified immunity claim is an issue of law, our review is de novo.” Yates v. City of Cleveland, 941 F.2d 444, 446 (6th Cir. 1991). In reviewing a claim for qualified immunity, we employ a three-step inquiry:
First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiff[] show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.
Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (internal quotation omitted). “Qualified immunity must be granted if the plaintiff cannot establish each of these elements.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir. 2005).
C. Constitutional Violation
In his brief, Ketz argues that even accepting the version of the facts most favorable to Bultema, he has failed to demonstrate a constitutional violation. Upon review of the facts as alleged by Bultema, we disagree. We conclude that Ketz‘s actions of using pepper spray on Bultema and hitting him in the head after he was already handcuffed violated Bultema‘s Fourth Amendment right not to be unreasonably seized.
The Supreme Court has held that “all claims that law enforcement officers have used excessive force—deadly or not—in
It is well established in this circuit that the gratuitous use of force on a suspect who has already been subdued and placed in handcuffs is unconstitutional. McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988). More specifically, we have held that use of a chemical spray on a suspect who is already handcuffed and no longer poses a threat to the safety of the officers or others constitutes excessive force. Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir. 2004), cert. denied, 125 S.Ct. 1837 (2005). In Champion, the suspect was handcuffed on the ground, but continued to squirm and kick his feet in the air. Even after the officers attached a hobbling device to his ankles, they continued to use pepper spray on him. We stated that it was constitutionally unreasonable for police officers to continue to spray a suspect, “who had stopped resisting arrest and posed no flight risk,” and who “was immobilized by handcuffs and a hobbling device.” Id.; see also Greene v. Barber, 310 F.3d 889, 898 (6th Cir. 2002) (holding that it may be excessive force to use pepper spray on suspect who was resisting arrest but “not threatening anyone‘s safety or attempting to evade arrest by flight“); Vaughn v. City of Lebanon, 18 Fed.Appx. 252, 265 (6th Cir. 2001) (holding that the use of a chemical spray may be unconstitutional when there is no immediate threat to the safety of the officers or others); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994) (holding that the use of mace on a compliant suspect is constitutionally unreasonable).
Applying these principles to this case, we conclude that under the facts as recounted by Stariha, Ketz‘s use of pepper spray on Bultema after he was handcuffed constitutes excessive force. By all accounts, Bultema was resisting arrest and put up a significant fight against Anderson and Ketz. Stariha stated, however, that after Bultema was slammed against the porch railing, “you could tell that [Bultema] lost a little bit of his struggle, it took something out of him. And that is at the point when they got handcuffs on him.” J.A. at 127 (Stariha Dep. at 34). After Ketz placed the handcuffs on him, Bultema was crouched down, leaning heavily
Bultema‘s second claim of excessive force is based on Stariha‘s statement that Ketz hit Bultema in the head after he had already been handcuffed and sprayed. It is beyond doubt that the act of a police officer hitting a restrained suspect in the head is excessive force. See, e.g., Phelps v. Coy, 286 F.3d 295, 302 (6th Cir. 2002) (holding that a police officer‘s tackling of a handcuffed suspect, hitting him in the face twice, and banging his head on the floor three times, was unconstitutional), cert. denied, 537 U.S. 1104 (2003); McDowell, 863 F.2d at 1307 (holding that a blow from a nightstick to a handcuffed, unresisting suspect was constitutionally unreasonable). In his brief, Ketz does not attempt to argue that this action as described by Stariha was reasonable, but instead claims that Bultema has not presented any evidence that the assault ever took place. Appellants’ Br. at 15. We find this argument wholly unpersuasive.
We have stated that “[i]n deciding upon a motion for summary judgment, we must view the factual evidence and draw all reasonable inferences in favor of the nonmoving party.” Nat‘l Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir. 1997). In this case, Stariha explained in his deposition that he heard Ketz say “‘shut up’ and then I heard a whack and a thud. I heard . . . a vibration on the front of the house. . . . I turned around and I saw Ketz recoiling. He had a zip glove on and he had just hit Mr. Bultema on the side of the head.” J.A. at 128 (Stariha Dep. at 39). Stariha also stated that following the blow, he saw Bultema “kind of in a fetal position, but still on his knees with his forehead on the ground.” J.A. at 129 (Stariha Dep. at 41). In addition to Stariha‘s deposition, Bultema stated in his brief that he suffered “a severe contusion to the left side of his face and a closed head injury,” which rendered Bultema unable to recall the events of that night. Appellee‘s Br. at 9. While Stariha did not actually see Ketz‘s hand make contact with Bultema‘s face, we can draw the reasonable inference from the facts recounted by Stariha that Ketz hit Bultema on the side of his head. By doing so, Ketz violated Bultema‘s constitutional right to be free from an unreasonable seizure.
In sum, we conclude that when the facts and all reasonable inferences are viewed in the light most favorable to Bultema, he has demonstrated a constitutional violation.
D. Qualified Immunity
Ketz next argues in his brief that even if his actions were unconstitutional, he should still be entitled to summary judgment on the ground of qualified immunity because a reasonable officer in his situation would not have known that his use of force was excessive. We find this argument to be wholly unpersuasive and conclude that under the facts alleged by Bultema, Ketz is not entitled to qualified immunity from suit.
Having determined that Ketz‘s actions as described by Stariha were constitutionally unreasonable, we turn to the next
It has long been held in this circuit that the right to be free from the use of excessive force under the Fourth Amendment is clearly established. Adams, 31 F.3d at 387. More specifically, in the context of the police‘s use of chemical spray to subdue a suspect, we held that it was clearly established in 1999 that a police officer‘s use of pepper spray against a suspect after he was handcuffed and hobbled constituted excessive force. Champion, 380 F.3d at 903. With regard to Ketz‘s alleged blow to Bultema‘s head, we have also held for more than twenty years that it is clearly established in this circuit that “a totally gratuitous blow” to a suspect who is handcuffed and offering no resistance violates the Fourth Amendment. McDowell, 863 F.2d at 1307. Thus, applying these precedents to this case, we conclude that Ketz‘s actions as described by Stariha violated a clearly established constitutional right.
Furthermore, we hold that Ketz‘s alleged actions were objectively unreasonable in light of this clearly established constitutional right. Ketz argues in his brief that “a reasonable officer in Deputy Ketz‘s position would not necessarily have known that it might be unlawful to use pepper spray or force on a plaintiff who assaulted him and who was actively resisting him.” Appellants’ Br. at 30. Moreover, he argues that a suspect “is not afforded a constitutional right to attack a police officer.” Appellants’ Br. at 30. We find Ketz‘s argument to be unpersuasive and his use of force in the context of the factual situation alleged by Bultema to be objectively unreasonable.
The Supreme Court has recognized that “the right to make an arrest . . . necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396. The Constitution permits a police officer to use even deadly force if the situation so requires. Tennessee v. Garner, 471 U.S. 1, 11 (1985). A police officer‘s use of force against a suspect is justified by the threat posed by the suspect to the safety of the officer or others. Id. By contrast, when a suspect has been already been restrained, the officer‘s constitutional authority to use force is significantly more circumscribed. This constitutional line serves to ensure that a police officer‘s authority to use legitimate force to detain does not cross into physical abuse of an incapacitated suspect. Thus, contrary to Ketz‘s argument, regardless of
In sum, we conclude that when viewing the facts in the light most favorable to Bultema, Ketz is not entitled to qualified immunity, because the constitutional right at issue was clearly established and Ketz‘s actions were objectively unreasonable in light of that right. Accordingly, we affirm the district court‘s denial of summary judgment in favor of Ketz.
E. The County‘s Appeal
Similar to Ketz‘s appeal, the County also argues that the district court erred in denying its motion for summary judgment. We do not have statutory jurisdiction to hear the County‘s interlocutory appeal and we decline to exercise pendent appellate jurisdiction.
In its brief, the County argues that “this Court must find that Benzie County is entitled to qualified immunity. Accordingly, the District Court erred in denying Benzie County‘s motion for summary judgment on this issue.” Appellants’ Br. at 23. In Owen v. City of Independence, 445 U.S. 622, 657 (1980), however, the Supreme Court held that unlike government officials, a municipal entity does not have qualified immunity from suit brought pursuant to
The sole exception to this general rule is where “the issues of [municipal] liability and qualified immunity are so related to
Applying these principles, we decline to exercise pendent appellate jurisdiction to entertain the County‘s appeal. Unlike in Brennan and Tucker in which we held there was no constitutional violation, we conclude in this case that under the facts as stated by Stariha, a constitutional violation occurred. Therefore, the County‘s appeal turns solely on whether Bultema has demonstrated that Ketz was acting pursuant to a municipal policy or custom. Thus, the issue in the County‘s appeal is not “indisputably coterminous with, or subsumed in” Ketz‘s qualified immunity inquiry. Brennan, 78 F.3d at 1158 (internal quotation omitted). “Although [Ketz]‘s appeal and the [County]‘s appeal overlap in some respects, the two appeals are not ‘inextricably intertwined’ because resolution of [Ketz]‘s interlocutory appeal of the [excessive force] issue does not necessarily resolve the [County]‘s interlocutory appeal of the municipal policy or custom requirement.” Crockett v. Cumberland College, 316 F.3d 571, 579 (6th Cir. 2003). We could effectively review the County‘s claims about the absence of a policy or custom after the district court has rendered a final judgment in this case. Accordingly, we decline to exercise pendent appellate jurisdiction to consider the County‘s municipal liability defense.
For the foregoing reasons, we AFFIRM the district court‘s denial of summary judgment to Ketz and DISMISS the County‘s interlocutory appeal.
RYAN, Circuit Judge.
While I agree with my colleagues that we lack appellate jurisdiction over Benzie County‘s appeal, I do not agree that we have appellate jurisdiction over Deputy Ketz‘s appeal.
In general, this court has no jurisdiction to entertain an interlocutory appeal from a district court‘s denial of summary judgment because it is not a “final decision[].”
Nevertheless, my colleagues conclude we have jurisdiction over this appeal simply because Ketz now claims in his brief that, even if Bultema‘s version of the facts is accepted as true, Ketz is entitled to qualified immunity. From this, my colleagues reason that “the sole issue presented before us is a ‘neat abstract issue of law.‘” Maj. Op. at ————.
This court has previously declared that “[a] defendant‘s right to appeal the denial of qualified immunity does not turn on the phrasing of the district court‘s order[.]” Christophel v. Kukulinsky, 61 F.3d 479, 485 (6th Cir. 1995). Even when the denial of qualified immunity is premised on the existence of a factual dispute, “[t]he question whether the [plaintiff‘s] uncontested facts demonstrate[] a constitutional violation is a pure question of law—and one from which an immediate appeal can be taken where qualified immunity has been denied.” Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997).
Unlike the defendants in Turner and Christophel, however, Ketz did not, “[f]or purposes of his motion [for summary judgment], . . . accept[] the plaintiff‘s version of the facts as true.” Id. Ketz discussed a number of claims and issues in his three-page motion, of which one sentence was dedicated to qualified immunity. In that sentence, Ketz concluded, without any reasoning whatsoever, that he was entitled to qualified immunity. Ketz did not invite the district court to consider Bultema‘s facts as true so as to argue that he was entitled to judgment as a matter of law. Instead, he invites this court to do so for the first time on appeal, and thus introduces a novel argument that we ordinarily do not consider. See Mich. Bell Tel. Co. v. Strand, 305 F.3d 580, 590 (6th Cir. 2002).
Instead of accepting what the district court said in plain English, my colleagues decide we have jurisdiction because of what the district court might have said, but did not. That creative approach to determining our jurisdiction is not the proper function of this court of review.
Given that Ketz‘s motion did not make any arguments regarding qualified immunity, it is not surprising that the district court‘s order contains no discussion of qualified immunity. This court has previously declined to exercise appellate jurisdiction over a district court‘s interlocutory order which “makes no mention of qualified immunity, and . . . [gives no] clear indication that the district court ever even considered the issue.” Liberto v. Shelby County, 115 Fed. Appx. 794, 795 (6th Cir. 2004) (unpublished disposition). Just like the defendant‘s motion in Liberto, Ketz‘s motion for summary judgment contained “an unsupported, one-sentence request for qualified immunity added for good measure,” and just like the district court‘s order in that case, the district court‘s order here “denied the motion without any discussion whatsoever of qualified immunity.” Id.
I do not agree that the question raised in this appeal presents, as the majority believes, a “neat abstract issue of law.” While Ketz now claims to accept Bultema‘s version of the facts as true, he clearly does not do so, nor does he accept as true the inferences that can reasonably be drawn
The majority‘s observation that Ketz did not raise these material factual disputes regarding his use of excessive force does not cut in favor of our exercising jurisdiction; it rather demonstrates that Ketz has not done what he has claimed to do, namely, accept Bultema‘s version of the facts as true. Ketz has not invited this court to apply legal principles to a given set of facts which are construed in the light most favorable to Bultema. Rather, Ketz obfuscates or overlooks certain material factual disputes in order to argue that he is entitled to summary judgment. If these factual disputes are material as to Ketz‘s liability, and they undoubtedly are, Ketz cannot simply ignore them while simultaneously claiming that he is entitled to summary judgment even under the plaintiff‘s version of the facts. Were it otherwise, every order denying qualified immunity because there is a genuine issue of fact for trial could be transformed into an immediately appealable decision simply if the defendant claims on appeal, albeit falsely, that he accepts the plaintiff‘s facts as true.
In my view, the district court‘s order is nothing more than an interlocutory denial of a motion for summary judgment because the facts necessary to determine liability are in dispute. Accordingly, I would dismiss Ketz‘s appeal for lack of appellate jurisdiction.
KAREN NELSON MOORE
UNITED STATES CIRCUIT JUDGE