In Estate of Anderson v. Marsh, published January 15, 2021, a divided 9th Circuit Court of Appeals dismissed, for lack of jurisdiction, an interlocutory appeal from a district court order denying a motion for summary judgment based on qualified immunity. After a high-speed chase, an officer approached a vehicle that had crashed into a fence. The officer contended that the driver moved his hands from the steering wheel and gear shift to a point below the driver, and the officer, fearing the driver was reaching for a weapon, shot him. The plaintiff passed away during the pendency of the case. The district court found evidence from surrounding circumstances that was contrary to the officer's version; and ruled that if the driver did not lower his hands, the officer's use of deadly force would violate clearly-established law. The officer appealed on the ground that the evidence was insufficient to raise a genuine issue of fact.
The panel majority held that it lacked jurisdiction to entertain the appeal. While acknowledging the Supreme Court's law on the subject was not always clear, the majority held that appellate courts have jurisdiction to hear interlocutory appeals from denials of qualified immunity only when the appellant raises the issue of whether undisputed facts show a violation of clearly-established law--an issue of law. The court has no jurisdiction to entertain an appeal of the issue whether the evidence is sufficient to raise a genuine issue of fact--except in the limited instance where the plaintiff has provided no evidence except bare allegations.
The dissenting judge opined that the law was unclear on when a court has interlocutory jurisdiction over denial of qualified immunity.
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