Colston v. Barnhart

BENAVIDES, Circuit Judge, with whom POLITZ, Chief Judge, and ROBERT M. PARKER and STEWART, Circuit Judges,

join dissenting from the denial of rehearing en bane:

The central issue in this qualified immunity case is the important question of the proper scope of a court of appeals’ review of the summary judgment record in a case where a district court has failed to identify the genuine issues of material fact precluding summary judgment. The Colston majority asserts that a court of. appeals may review de novo a district court’s determination that the plaintiffs evidence creates a genuine factual dispute in order to preserve a public official’s right to an immediate appeal on the question of qualified immunity. After substituting its genuineness analysis for that of the district court, the majority concludes that Barnhart is entitled to qualified immunity because his effectively uncontested subjective account of *298the events preceding the shooting indicates that he acted with objective legal reasonableness when he shot Colston twice in the back.

In contrast, I believe that the majority’s de novo review of the sufficiency of Colston’s evidence conflicts with the Supreme Court’s decision in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), and the collateral order doctrine. The majority, moreover, could have respected the limits on this court’s jurisdiction over interlocutory appeals and protected Barnhart’s right to an immediate appeal by deciding the question of qualified immunity on the basis of the version of the facts contained in Colston’s response to Barnhart’s motion for summary judgment or by remanding the case to the district court for a complete statement of the genuine issues of material fact precluding summary judgment. Had the majority adopted either of these alternatives to an independent review of the summary judgment record, it would not have reversed the district court. I, therefore, respectfully dissent from the denial of rehearing en banc.

I.

In its explanation of the basis for the court’s jurisdiction over Barnhart’s interlocutory appeal, the Colston majority correctly interprets the Supreme Court’s'decisions in Jones and Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 138 L.Ed.2d 773 (1996), to permit this court to exercise jurisdiction over an interlocutory appeal contending that the factual disputes identified by a district court in its order denying a defendant’s motion for summary judgment on the basis of qualified immunity are immaterial to a determination of whether a plaintiffs constitutional rights were violated or whether a defendant’s conduct was objectively reasonable in light of clearly established law.1 In other words, we may consider on interlocutory appeal a defendant’s claim that when the facts, both disputed and undisputed, are viewed in the light most favorable to the plaintiff, they demonstrate that the defendant is entitled to qualified immunity. See Hart v. O’Brien, 127 F.3d 424, 455 (5th Cir.1997) (Benavides, J., dissenting). The majority also rightly recognizes that a court of appeals must adopt the district court’s articulation of the genuinely disputed facts when determining whether these disputes are material to a finding of qualified immunity.2 Finally, the majority properly concludes that when a district court has “not identified] those factual issues as to which it believes genuine disputes remain” and a defendant is claiming on interlocutory appeal that the factual disputes in the case are immaterial to a finding of qualified immunity, Jones and Behrens authorize us to review the summary judgment record in order to identify “what issues of fact the district court probably considered genuine”.when deT nying the defendant’s motion for summary judgment so that we may in turn determine if those disputes are material. This much is clear from the Supreme Court’s statement that under these circumstances, a court of appeals “ ‘may have to undertake a cumber*299some review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed’ ” to be sufficiently supported when it denied summary judgment. Behrens, 516 U.S. at 313, 116 S.Ct. at 842 (quoting Jones, 515 U.S. at 319, 115 S.Ct. at 2159).

. II.

The Colston majority and I part company, however, when it describes the manner in which we are to review the summary judgment record when identifying the factual disputes likely viewed as genuine by the district court. According to the majority, Behrens permits a court of appeals to “go behind” a district court’s determination that genuine issues of material fact preclude summary judgment when we are evaluating whether the unstated facts that the court “likely assumed” are material to a finding of qualified immunity. Although the Colston majority is careful not to explain what it means to “go behind” a district court’s determination and “conduct an analysis of the summary judgment record,” its opinion illustrates that a court of appeals may disregard its obligation to reconstruct the version of the facts that best explains the district court’s decision to deny the defendant’s motion for summary judgment when going behind that determination. In fact, the majority’s decision to “adopt Barnhart’s version of the facts” demonstrates that going behind a district court’s determination entails conducting a de novo review of the district court’s finding that the plaintiffs evidence was sufficient to create a genuine issue of material fact. The majority’s conception of the scope of our review of the summary judgment record in a case like Colston, however, cannot be reconciled with the Supreme Court’s decision in Jones or the collateral order doctrine.

The summary judgment record in Colston indicates that Barnhart and Colston provided plausible and conflicting accounts of the ten- or and significance of the events captured on film by the camera mounted in Barnhart’s patrol car. According to Barnhart, for example, Colston’s effort to stand up in the face of a command to get on the ground was an aggressive and threatening act. Colston, on the other hand, draws attention to the fact that he was a young black man ordered to the ground by a white police officer in connection with a traffic stop that occurred at night on an empty highway. Colston explains that he lifted his leg in preparation to flee because he was noticeably frightened by the officers and what he perceived to be their impending use of force.

The parties also offer conflicting accounts of the most critical point in the encounter: The moment when Barnhart fired two shots into Colston’s back. Barnhart contends that it was not feasible for him to warn Colston before firing these shots because he “had to immediately decide whether to shoot.” Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir.1997). According to Barnhart’s motion for summary judgment, he decided to shoot because he was “dazed and disoriented” and he “perceived [Colston] to be in the process of attacking him” or “hovering above” him.

The videotape, however, clearly shows that Colston was not in the process of attacking either officer at the time he was shot twice in the back. Instead, as being shot in the back indicates, Colston was running away. Col-ston contends that his observable demeanor indicated that he was in fact fleeing at this point because he had been visibly frightened, had not placed himself in a position to strike the officers after knocking them down, and had not attempted to disarm or strike the officers while they were lying “dazed,” “limp,” and “motionless” on the ground: See Id. at 99. As for Barnhart’s- suggestion that his dazed and disoriented state contributed to his misperception that Colston was moving toward him, the record indicates that he was nonetheless able to see Colston clearly enough to get “a good target acquisition” before firing. Further, as Judge DeMoss stated in his dissent from the panel opinion, Barnhart’s account of the extent of his incapacity may be more hyperbole than fact. See id. at 103 (DeMoss, J., dissenting). Thus, to justify Barnhart’s decision to shoot Colston without warning on the basis of his possibly unreasonable assumption that Colston was advancing upon him, the majority puts forth an explanation of the shooting that Barnhart did not even raise in his motion for summary *300judgment: That when Barnhart fired the final two shots, Colston was running toward the “patrol car, where Barnhart’s shotgun was located” and was, presumably, accessible. Id. Of course, Barnhart did not raise this justification for the shooting because it completely contradicts his admission in his motion for summary judgment that he shot Colston because he perceived Colston to be moving toward him.

Even if Barnhart did in fact perceive Col-ston to be heading for the patrol car, there is no evidence that Colston knew of the shotgun. In fact, we do not know whether the shotgun was loaded or how readily Colston could have retrieved it from the police cruiser. Moreover, the shotgun could not have been visible to Colston from the front of the patrol car because it was dark and the car lights were shining in his eyes. Further, Colston had proceeded only “two steps ... toward Barnhart’s patrol car” when he was shot. Id. Under these circumstances, Col-ston suggests that Barnhart, even if he was in fact concerned about Colston’s access to the shotgun, had ample time to issue a warning before firing the last two shots.

Notwithstanding these conflicting versions of the events preceding shooting, the majority states that it adopted Barnhart’s “version of the facts” because they “mirrored the version of the facts that we determined the district court likely assumed” when denying Barnhart’s motion for summary judgment. Why the district court would have adopted a version of the events not argued by Barn-hart, only to deny his motion for summary judgment, is unclear. More importantly, there can be no question that when the district court denied Barnhart’s motion for summary judgment because “genuine issues offset [exist] as to ‘what information Trooper Barnhart possessed immediately prior to and at the moment he fired the three shots at [Colston],’” it necessarily found that Col-ston’s version of the encounter conflicted with Barnhart’s and that Colston’s account was sufficiently supported by the summary judgment evidence. Thus, by ignoring Col-ston’s account of the encounter and replacing it with the version of the events preceding the shooting that is most favorable to Barn-hart’s qualified immunity claim, the majority, contrary to the Supreme Court’s instruction in Jones, in fact rejected the version of the “facts the district court, in the light most favorable to the nonmoving party, likely assumed” when denying Barnhart’s motion for summary judgment. 515 U.S. at 319, 115 S.Ct. at 2159.

Moreover, the process by which the majority inexplicably concluded that the district court adopted Barnhart’s version of the facts when denying his motion for summary judgment also cannot be squared with the Supreme Court’s decision in Jones or the collateral order doctrine. In Jones, the Court unequivocally held that “a defendant, entitled to invoke a qualified-immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial” because the collateral order doctrine precludes jurisdiction over an interlocutory appeal raising a question, such as “evidence sufficiency,” that is not “significantly different from the fact-related legal issues that likely underlie [a] plaintiffs claim on the merits.” Id., 515 U.S. at 314, 318-20, 115 S.Ct. at 2157, 2159. Nonetheless, in order to adopt the version of the events preceding the shooting that the majority believes Barnhart should have identified as the factual basis for his materiality challenge, it had to go beyond the version of events contained in Barnhart’s motion for summary judgment, substitute its own genuineness analysis for that of the district court, and conclude that Colston produced insufficient evidence calling into question the objective reasonableness of Barnhart’s decision to shoot him twice in the back. A district court’s failure to identify the genuinely disputed facts, however, does not transform the question of evidence sufficiency into an issue that is separable from the merits of a plaintiffs claim and that is within this court’s jurisdiction on interlocutory appeal.

According to the majority, this conflict between its de novo review of the sufficiency of Colston’s evidence and the Court’s decision in Jones and collateral order doctrine is authorized by the Supreme Court’s decision in Behrens. The Behrens opinion, however, *301does not purport to create an exception to the collateral order doctrine’s separability requirement. Likewise, as the Colston majority recognizes, the opinion in Behrens does not expressly state that a court of appeals may review a district court’s genuineness determination and substitute its view of the summary judgment evidence for that of the district court in a case where the district court has “not identif[ied] the particular charged conduct that it deemed adequately supported for the purposes of summary judgment.” Instead, the Court in Behrens simply reiterated its position in Jones that under these circumstances, a court of appeals “ ‘may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed.’” Behrens,516 U.S. at 313, 116 S.Ct. at 842 (quoting Jones, 515 U.S. at 319, 115 S.Ct. at 2159). The majority’s interpretation of Beh-rens, therefore, is ultimately predicated on its view that a court of appeals may review de novo a district court’s genuineness determination on interlocutory appeal because there is no better way “to ensure that the defendant’s right to an immediate appeal on the issue of materiality is not defeated solely on account of the district court’s failure to articulate its reasons for denying summary judgment.”

Like the majority’s independent review of the sufficiency of Colston’s evidence, this policy argument also conflicts with the Supreme Court’s decision in Jones. In that case, the petitioner claimed that a court of appeals should be permitted to review the sufficiency of a plaintiff’s evidence on interlocutory appeal because “the need to protect officials against the burdens of further pretrial proceedings and trial justifies a relaxation of the separability requirement.” Jones, 515 U.S. at 315,115 S.Ct. at 2157 (quotations omitted). The Supreme Court, however, rejected this claim. Emphasizing jurisdiction over expedience, of. Steel Co. v. Citizens for a Better Bnv’t, — U.S.-,-, 118 S.Ct. 1003, 1011-16, 140 L.Ed.2d 210 (1998) (holding that a court of appeals may not assume that a plaintiff has standing in order to reach the merits of that plaintiffs claim), the Court stated that allowing a court of appeals to review the sufficiency of a plaintiffs evidence on interlocutory appeal “would more than relax the [collateral order doctrine’s] separability requirement — it would in many eases simply abandon it.” Jones, 515 U.S. at 315, 115 S.Ct. at 2157. Thus, the majority’s policy rationale for its interpretation of Behrens sharpens, rather than alleviates, the conflict between its de novo review of the district court’s genuineness determination and the Supreme Court’s holding in Jones.

III.

The majority’s policy rationale for its de novo review of the sufficiency of Colston’s evidence also reflects an incorrect understanding of the proper balance between the policies underlying qualified immunity and the limits on our jurisdiction over interlocutory appeals. Contrary to the majority’s suggestion, a de novo review of a district court’s genuineness determination was not necessary to ensure Barnhart’s right to an immediate appeal on the question of qualified immunity. Instead, the majority could have overcome the district court’s incomplete order denying summary judgment and fully protected Barnhart’s right to an interlocutory appeal by adopting of the version of events contained in Colston’s response to Barnhart’s motion for summary judgment or remanding the ease to the district court for a complete statement of the genuine issues of material fact. Each of these alternatives to the handling of this appeal, moreover, would have been entirely consistent with the collateral order doctrine and the language and analysis in Jones and Behrens. The majority, therefore, did not have to interpret Behrens as conflicting with the collateral order doctrine and the Court’s unanimous decision in Jones in order to properly dispose of this appeal.

To exercise its jurisdiction over an interlocutory appeal from an incomplete order denying summary judgment in a manner that is consistent with Jones and the collateral order doctrine, a court of appeals should “determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed” when denying a defendant’s motion for summary *302judgment by first comparing that defendant’s motion for summary judgment and the plaintiffs response in order to identify the disputed issues of fact.3 By assuming that the plaintiffs version of these factual disputes is sufficiently supported by the summary judgment evidence, a court of appeals best complies with its obligation under Jones to adopt the version of the facts, “in the light most favorable to the nonmoving party,” that the district court most “likely assumed” when it denied the defendant’s motion for summary judgment. Jones, 515 U.S. at 319, 115 S.Ct. at 2159. Moreover, by utilizing the plaintiffs version of the facts when determining whether the factual disputes between the parties are material to a finding of qualified immunity, a court of appeals preserves the collateral order doctrine’s separability requirement and the defendant’s right to an interlocutory appeal on the issue of qualified immunity.4

• Had the majority in Colston properly restricted its review of the summary judgment record, it would have determined that the factual dispute as to whether Colston was running away or whether he posed an immediate threat of death or serious bodily harm to the officers at the time he was shot twice in the back was material to a finding that Barnhart was entitled to qualified immunity.5 Once the version of the events preceding the shooting contained in Colston’s response to Barnhart’s motion for summary judgment is assumed to be sufficiently supported by the evidence, it is clear that the district court correctly determined that Barnhart was not entitled to summary judgment based on the objective reasonableness of his actions. Under Colston’s characterization of the shooting, a reasonable police officer in Barnhart’s position at the time of the shooting would not have shot Colston twice in the back without warning because that officer would have perceived that Colston was running away. Moreover, even if the majority correctly credits Barnhart with the unclaimed subjective intent of shooting Colston because he perceived Colston to be running toward the patrol car, a reasonable officer would not have shot Colston in the back until Colston had taken additional action indicating an intent to gain access to the shotgun in the police cruiser in the face of á warning to move away from the car. The factual disputes between Colston and Barnhart, therefore, are material to a finding of qualified immunity and the Colston majority should have affirmed the district court’s denial of Barnhart’s motion for summary judgment. Cf. Dickerson, 101 F.3d at 1164 (dismissing a defendant’s interlocutory appeal for lack of jurisdiction after determining that the factual disputes between the parties were material to a finding that the defendant was entitled to qualified immunity on the plaintiffs exces*303sive force claim); Clash v. Beatty, 77 F.3d 1045, 1049 (7th Cir.1996) (dismissing a defendant’s interlocutory appeal for lack of jurisdiction when the record was insufficiently developed for the court of appeals to determine whether the disputes between the parties were material to a finding that the defendant was entitled to qualified immunity on the plaintiffs excessive force claim).6

In the alternative, even though a cumbersome review of the record is not necessary to identify the version of the facts supporting the district court’s decision to deny Barn-hart’s motion for summary judgment, the majority should have remanded this case to the district court for a sufficiently specific statement of the genuine issues of material fact precluding summary judgment.7 In fact, this approach might have struck an even better balance between the goals of qualified immunity and the limits on our jurisdiction over interlocutory appeals than a limited review of the parties’ competing summary judgment filings.8 A proper remand in this case would have protected Barnhart from any additional “burdens of litigation,” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985), by staying the proceedings in the district court, if necessary, until that court had sufficiently identified the genuine issues of material fact precluding summary judgment and this court had reached a decision on the merits of Barn-hart’s subsequent interlocutory appeal. In addition, this disposition would have precluded any potential relaxation of the separability requirement.

Indeed, even if the majority correctly interprets Behrens to create an exception to *304-310Jones and the collateral order doctrine that authorizes a court of appeals to conduct a de novo review of the sufficiency of a plaintiffs evidence simply because a district court has failed to identify the genuine issues of material fact precluding summary judgment,9 this case should have been remanded.10 There is simply no reason to relax or abandon the collateral order doctrine’s separability requirement when a remand will not deprive a defendant of the benefits of raising a qualified immunity defense.

IV.

I respectfully dissent from the denial of rehearing en bane. The question of the proper scope of our review of the summary judgment record in an interlocutory appeal from an incomplete order denying summary judgment is one of considerable importance. Any answer we give must carefully balance the limited nature of our jurisdiction over interlocutory appeals with the policies underlying qualified immunity. For this reason alone, the majority’s decision in Colston deserves the attention of the full court. More importantly, the balance the majority has struck between these competing concerns conflicts unnecessarily with the Supreme Court’s decision in Jones. Thus, the court should have taken this case en banc and either affirmed the district court’s denial of summary judgment or remanded this case.

. See Behrens, 516 U.S. at 312-14, 116 S.Ct. at 842 ("Johnson permits [a defendant] to claim on appeal that [the factual disputes identified by the district court are immaterial because] all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow standard of ‘objective legal reasonableness."’); Jones, 515 U.S. at 319, 115 S.Ct. at 2159 (holding that a court of appeals may review on interlocutory appeal a district court's determination "that a given set of facts violates clearly established law”); Collins v. Jordan, 110 F.3d 1363, 1370 (9th Cir.1997) ("An appellate court still has jurisdiction to consider a defendant's assertion that the dispute of fact is not material. Such a claim is of a different character from a claim that the [district] court's findings are not supported by the record. The claim of lack of materiality is solely one of law, and therefore is reviewable on an interlocutory basis.”) (citations omitted); Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir.1996) (noting that a court of appeals may "exercise interlocutory jurisdiction” over an appeal from a denial of summary judgment in a qualified immunhy case when "the factual disputes” identified by the district court are "immaterial”).

. See Behrens, 516 U.S. at 313, 116 S.Ct. at 842 (noting that a court of appeals considers "the conduct which the District Court deemed sufficiently supported for purposes of summary judgment” when deciding materiality); Jones, 515 U.S. at 319, 115 S.Ct. at 2159 ("When faced with the argument that the district court mistakenly identified clearly established law, the court of appeals can simply take, as given, the facts that the district court assumed when it denied summary judgment.”).

.As the Supreme Court has suggested, our review of the summary judgment record may become "cumbersome" if a defendant’s motion for summary judgment and the plaintiff's response do not sufficiently highlight the factual disputes in a case. See Jones, 515 U.S. at 319, 115 S.Ct. at 2159. In that event, a court of appeals may be forced to examine the parties' exhibits, the complaint, and the answer in order to identify the plaintiff's version of the factual disputes that it will assume to be genuine for the purposes of its materiality analysis. Of course, this "detailed evidence-based review of the record,” id., increases the risk that the collateral order doctrine's separability requirement will be relaxed, if not abandoned, in an effort to hasten the resolution of a qualified immunity case. A remand to the district court for a complete statement of the genuine issues of material fact precluding summary judgment, however, would eliminate this risk of relaxing or abandoning the separability requirement in such a case without sacrificing a public official's right to an immediate appeal. See infra.

. Cf. Jones, 515 U.S. at 319, 115 S.Ct. at 2159 (noting that a court of appeals avoids entangling itself in the merits of a plaintiff's case and caus- ■ ing a corresponding relaxation of the separability requirement by "simply takfing], as given, the facts that the district court assumed when it denied summary judgment”); Hammond v. Kunard, 148 F.3d 692, 695 (7th Cir.1998) ("[In] a motion to dismiss, we assume that all of the facts of the complaint are true, rendering the applicability of qualified ... immunity a purely legal question over which we have jurisdiction.”).

. Of course, had the majority adopted these principles, it would not have reviewed the sufficiency of Colston’s evidence or inexplicably concluded that the district court likely assumed the version of the facts most favorable to Barnhart when denying his motion for summary judgment.

. This is not to say that Barnhart may not ultimately prevail on his claim that he acted with objective legal reasonableness under the circumstances. Colston’s version of the encounter, however, indicates that the determination of whether Barnhart acted with objective legal reasonableness belongs to a jury. When confronted with the testimony of both Barnhart and Colston, a jury may ultimately conclude that a reasonable officer, when standing in Barnhart's shoes, would have also shot Colston twice in the back without warning. Cf. Snyder v. Trepagnier, 142 F.3d 791, 799-801 (5th Cir.1998) (affirming a jury verdict that awarded the defendant qualified immunity for his decision to shoot the plaintiff in the back after the district court had properly denied summary judgment on qualified immunity grounds because there was a genuine dispute of material fact as to whether the plaintiff had a gun or the defendant reasonably believed that he did).

. Cf. Crutcher v. Kentucky, 883 F.2d 502, 503 (6th Cir.1989) ("The district Court's denial of Owens' motion stated only that genuine issues of material fact remained for resolution at trial.... We vacate the District Court's ruling on the qualified immunity issue and remand this case to the District Court so that it can state its reasons for concluding that there was no genuine dispute about any fact material to whether Owens violated clearly established constitutional rights.''); Poe v. Haydon, 853 F.2d 418, 426-27 (6th Cir.1988) ("Although this court could conduct its own examination of the record and determine if there is a genuine dispute about any fact material to whether appellants violated any clearly established constitutional or statutory rights, we decline to do so.”); Whitt v. Smith, 832 F.2d 451, 453-54 (7th Cir.1987) ("No particular factual issues were identified in the district court's order ... and [w]e will not attempt the factual analysis to determine whether qualified immunity is applicable at this stage of the proceedings. We therefore ... remand the case to the district court.”); Green v. Carlson, 826 F.2d 647, 652 (7th Cir.1987) (“The appellants contend that ... ■ this court should conduct its own examination of the record and decide ... whether the appellants violated any clearly established constitutional or statutory rights. However, in light of the complexity of this case, and the district court's finding that numerous [but unstated] disputed issues of fact remain, we decline to reach the merits of the defendants’ qualified immunity claim. Instead, we remand the case for [additional] finding[s].")

.A remand in this case would also promote judicial economy. As the Supreme Court has noted, "considerations of deláy, comparative expertise of trial and appellate courts, and wise use of judicial resources, argue in favor of limiting interlocutory appeals of 'qualified immunity’ matters to cases presenting more abstract issues of law.” Jones, 515 U.S. at 317, 115 S.Ct. at 2158. Every effort we make to identify a plaintiff's version of the disputed issues of fact, however, makes the qualified immunity determination less of a pure question of law. That a remand would entail additional district court action, moreover, does not undercut its usefulness in furthering judicial economy. Instead, it reflects the district court's comparative advantage in identifying the version of the facts precluding a grant of summary judgment. Further, a rule requiring remands of interlocutory appeals from insufficiently specific orders denying summary judgment would promote judicial economy by encouraging district courts to identify completely the genuine issues of material fact precluding summary judgment.

. In Jones, the Supreme Court stated that "a rule that occasionally requires a detailed evidence-based review of the record is still, from a practical point of view, more manageable that the rule that petitioners urge us to adopt,” i.e., allowing a court of appeals to review the sufficiency of the plaintiff's evidence on interlocutory appeal. 515 U.S. at 319, 115 S.Ct at 2159. The Court then noted that the "petitioners’ approach would make that task not the exception, but the rule.” Id. When read in isolation, this language might suggest that the Court has crafted a narrow exception to the collateral order doctrine's separability requirement. To adopt this reading of Jones, however, would conflict with the Court's earlier statement in Jones that the policies justifying an interlocutory appeal on the purely legal question of qualified immunity do not authorize an abandonment of the separability requirement to permit an interlocutory appeal on the question of evidence sufficiency. Thus, this language from Jones is best understood as reflecting the Supreme Court's. recognition that a "cumbersome” review of the record increases the risk that a court of appeals will review the sufficiency of a plaintiff’s evidence.

. In the alternative, the majority should have affirmed the district court because Colston's evidence was sufficient to create a genuine issue of material fact as to whether Barnhart should have perceived that Colston was running away at the time he was shot twice in the back.