Submitted: April 16, 2019
from United States District Court for the Eastern District of
Missouri - St. Louis
SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.
Graham was arrested on September 3, 2014. He sued under 42
U.S.C. § 1983 for alleged Fourth and Fourteenth
Amendment violations committed in connection with that
arrest. The district court dismissed all claims except for
Graham's claim that Detective Gregory Klipsch used
excessive force in effectuating the arrest. Klipsch then
sought summary judgment on the basis of qualified immunity,
which the district court denied. Klipsch now appeals that
order. We dismiss for lack of jurisdiction.
purposes of this appeal, "we accept as true the facts
that the district court found were adequately supported, as
well as the facts that the district court likely assumed, to
the extent they are not 'blatantly contradicted by the
record.'" Burnikel v. Fong, 886 F.3d 706,
709 (8th Cir. 2018) (quoting Thompson v. Murray, 800
F.3d 979, 983 (8th Cir. 2015)). Accordingly, we draw the
following background facts from the district court's
summary judgment opinion.
night in question, Klipsch and another officer were driving
in an unmarked car when they saw Graham walking alone in the
middle of a deserted street in a high crime area. Graham
repeatedly looked over his shoulder, monitoring the
officers' location, and pulled at his waistband. Klipsch
believed, based on his experience, that Graham was attempting
to conceal a weapon. Graham walked up to the front door of a
house. The officers called out to him, identifying themselves
as police officers, and asked him if he lived there. Graham
gave inconsistent answers before running away from the house,
throwing a pistol to the ground as he ran. The officers ran
after him and ordered him to stop. Klipsch told Graham that
if Graham did not stop running, then Klipsch would tase him.
Graham kept running, and Klipsch tased him. Graham fell to
the ground, incapacitated. He lost consciousness. At some
point, Klipsch tased him a second time. When Graham awoke he
was on the ground and four or five officers were asking him
district court determined that the first time Klipsch tased
Graham, Klipsch did not use unconstitutionally excessive
force. However, it concluded that "there is a genuine
issue of material fact as to whether Klipsch used excessive
force in violation of [Graham's] constitutional rights by
tasing him when he was on the ground after he was
incapacitated" and it denied Klipsch summary judgment on
the basis of qualified immunity. Klipsch appeals.
order denying qualified immunity can be immediately
appealable despite the fact that it is interlocutory."
Riggs v. Gibbs, 923 F.3d 518, 522 (8th Cir. 2019)
(quoting Mallak v. City of Baxter, 823 F.3d 441, 445
(8th Cir. 2016)). "Our jurisdiction to consider an
appeal of an order denying summary judgment on the basis of
qualified immunity is limited to the purely legal issue of
whether the facts alleged support a claim of violation of
clearly established law." Id. at 522-23
(quoting Berry v. Doss, 900 F.3d 1017, 1021 (8th
Cir. 2018)). Thus, "[i]f defendants are simply arguing
that the plaintiff offered insufficient evidence to create a
material issue of fact for trial, we lack jurisdiction."
Id. at 523 (cleaned up).
Klipsch's arguments all rest on his contention that the
district court erred in its determination that a genuine
dispute of material fact exists as to whether Graham was
incapacitated when he tased Graham a second time, we lack
jurisdiction over this appeal. See Franklin v.
Young, 790 F.3d 865, 867 (8th Cir. 2015). Klipsch argues
the district court erred because it "gave no
consideration to Klipsch's undisputed testimony that
although Graham had been 'incapacitated' by his first
taser burst, Graham was trying to get back up and continue to
run until Klipsch tased him a second time." In doing so,
Klipsch challenges the district court's determination
that, viewing the facts in the light most favorable to
Graham, Graham was incapacitated when Klipsch tased him a
second time. But this determination is not blatantly
contradicted by the record, and analyzing the record to
resolve the parties' dispute over the circumstances in
which Graham was tased a second time is beyond our limited
review. See Berry, 900 F.3d at 1021-22.
we dismiss for ...