UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 97-10194
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ERIK WILLIAMS,
Plaintiff-Appellee,
VERSUS
CITY OF DALLAS, ET AL., STANLEY MCDANIEL,
Defendants-Appellants.
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Appeal from the United States District Court
For the Northern District of Texas
(3:96-CV-1523-T)
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September 4, 1998
Before KING and DAVIS, Circuit Judges, and VANCE,* District Judge.
PER CURIAM:**
Erik Williams filed suit under 42 U.S.C. § 1983, claiming that
Dallas Police Officer Stanley McDaniel deprived him of his
constitutional rights by using excessive force to apprehend him.
Following a tip that persons in a white van were burglarizing cars
in a nearby neighborhood, Officer McDaniel spotted the van and
attempted to stop it. The van took off, avoiding the stop, and
Officer McDaniel chased it. During the chase, Officer McDaniel
*
District Judge of the Eastern District of Louisiana, sitting
by designation.
**
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this opinion should not be published and is not precedent except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. R. 47.5.4.
observed gunfire coming from the van. The van eventually stopped,
and the passengers fled on foot. Officer McDaniel stopped his
police vehicle next to the van, and exited his car. After
observing Williams and another passenger across the street, Officer
McDaniel fired at Williams and shot him in the leg.
In this appeal, Officer McDaniel claims that the district
court erred in its denial of summary judgment on the basis of
qualified immunity. The district court concluded that summary
judgment was inappropriate due to the existence of genuine issues
of material fact.
We have jurisdiction to review the district court’s
interlocutory order denying summary judgment on the basis of
qualified immunity with respect to whether the genuine issues of
fact identified by the district court are material. Colston v.
Barnhart, ____ F.3d ____ (5th Cir. 1998)(denial of reh’g en banc).
Although the district court did not specify the issues it
considered material, our review of the summary judgment evidence
reveals the existence of at least one issue of material fact. See
id. at ____ (“where the district court does not identify those
factual issues as to which it believes genuine disputes remain, an
appellate court is permitted to go behind the district court’s
determination and conduct an analysis of the summary judgment
record to determine what issues of fact the district court probably
considered genuine”). Williams claims that after Officer McDaniel
yelled “stop, freeze,” Williams turned and faced the officer with
his hands in the air, and yelled “don’t shoot.” Officer McDaniel
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does not discuss the circumstances immediately prior to the shot in
his affidavit, but generally explains his shooting as a reaction to
all of the circumstances leading up to the shot. His affidavit
stated: “I fired my gun because of the previous shots fired at me
and because I thought that the person or persons were still armed
and shooting at me.” Because this issue of fact is material, we
have no jurisdiction to review the district court’s denial of
summary judgment. We therefore dismiss the appeal.
DISMISSED.
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