F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 16 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GEORGE L. GRAYSON,
Plaintiff-Appellee,
v. No. 98-5188
(D.C. No. 97-CV-769-C)
PHILLIP E. SNOW; ROBERT S. (N.D. Okla.)
JACKSON; JOHN D. CAROLLA,
Defendants-Appellants.
ORDER AND JUDGMENT *
Before BALDOCK , HENRY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendants, City of Tulsa police officers, appeal the district court’s denial
of their motion for summary judgment in this civil rights action, brought pursuant
to 28 U.S.C. § 1983, arguing that even under plaintiff’s version of the facts they
are entitled to qualified immunity. Because the district court denied summary
judgment based on a dispositive factual dispute, and because defendants do not
accept plaintiff’s facts in this appeal, we dismiss the appeal for lack of
jurisdiction.
This civil rights action arose out of a warrantless arrest. During the
evening of August 22, 1996, police received a report that plaintiff had engaged in
improper sexual conduct with several neighborhood children. After interviewing
the children and their parents, defendant police officers arrived at plaintiff’s
home at approximately midnight. When they knocked on the door, plaintiff
answered wearing only his underwear. The officers and plaintiff have different
versions of what transpired next.
The officers presented affidavit testimony that plaintiff stepped out onto the
front porch and was arrested there. See Appellant’s App. at 30. The affidavit
stated further that two of the officers never entered plaintiff’s house at all that
evening, and that the third officer only entered the house after the arrest, in the
company of plaintiff’s wife. See id. In response, plaintiff presented deposition
testimony that he came to the door in his underwear, that he held the storm door
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ajar and answered the officers’ question whether he was George Grayson, that he
then said “Just a second. Let me get some clothes on,” and retreated into the
house, and that the officers followed him into the house and arrested him there.
Id. at 37. Plaintiff’s wife also testified that when she came out of the bedroom
the three officers were in the dining room and plaintiff was in handcuffs. See id.
at 39. In their reply brief, the officers argued they were entitled to qualified
immunity even under plaintiff’s facts. The district court denied the officers’
motion, holding that a genuine issue of material fact regarding the location of the
arrest precluded summary judgment.
We must examine whether we have jurisdiction over this interlocutory
appeal. “Since federal courts are courts of limited jurisdiction, we presume no
jurisdiction exists absent an adequate showing by the party invoking federal
jurisdiction. If jurisdiction is challenged, the burden is on the party claiming
jurisdiction to show it by a preponderance of the evidence.” United States ex rel.
Hafter v. Spectrum Emergency Care, Inc. , 190 F.3d 1156, 1160 (10th Cir. 1999)
(citations omitted).
An order denying qualified immunity is appealable before trial only if it
involves “neat abstract issues of law.” Johnson v. Jones , 515 U.S. 304, 317
(1995) (quotation omitted). When the district court’s denial of qualified
immunity rests on the existence of a genuine issue of fact which will determine
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the availability of the defense, the ruling is not immediately appealable under the
collateral order doctrine. See id. at 310, 313-15 (affirming dismissal for lack of
jurisdiction officers’ appeal from denial of qualified immunity based on a factual
dispute whether they engaged in beating, noting lack of separability from merits);
Foote v. Spiegel , 118 F.3d 1416, 1422 (10th Cir. 1997) (“[G]overnment officials
cannot appeal pretrial denial of qualified immunity to the extent the district
court’s order decides nothing more than whether the evidence could support a
finding that particular conduct occurred.”). Such a denial may be appealed as a
question of law, however, if a defendant argues that even under the plaintiff’s
facts there was no violation of clearly established law. See Johnson v. Martin ,
195 F.3d 1208, 1214-15 (10th Cir. 1999).
In this case, the district court denied summary judgment solely on the
ground that plaintiff’s evidence created a factual dispute on the dispositive issue
of where the arrest occurred. Although it is a close question, we conclude the
court’s ruling is not immediately appealable. See, e.g. , Myers v. Oklahoma
County Bd. of County Comm’rs , 80 F.3d 421, 425 (10th Cir. 1996) (holding
district court’s denial of qualified immunity was not immediately appealable when
it rested solely on the existence of a factual dispute regarding the reasonableness
of defendants’ use of force).
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The location of the arrest is pivotal to defendants’ entitlement to qualified
immunity, as it is well established that a warrantless arrest inside a suspect’s
home is unconstitutional unless it is justified by exigent circumstances or consent.
See New York v. Harris , 495 U.S. 14, 15-17 (1990) (holding it “evident” that
Fourth Amendment was violated when officers knocked on suspect’s door,
displayed their guns and badges when he answered, entered the apartment, and
arrested suspect); Payton v. New York , 445 U.S. 573, 583, 590 (1980) (holding
absent exigent circumstances or consent, police may not cross the threshold of a
suspect’s house without a warrant to make a routine felony arrest). Because the
decision appealed was simply a determination that “the evidence could support a
finding that [an arrest within the home] occurred, the question decided is not truly
separable, and hence there is no final decision.” Behrens v. Pelletier , 516 U.S.
299, 313 (1996) (quotations omitted).
Further, although defendants profess to accept plaintiff’s facts as true, their
argument that they did not violate clearly established law actually relies on a
different version of events. That is, despite plaintiff’s evidence that all three
officers entered his house without justification or consent and then arrested him
once inside, the officers argue that the arrest occurred at the entryway to the
house, and that none of them entered the house prior to the arrest. See
Appellant’s Opening Br. at 4-5. As defendants have not accepted plaintiff’s
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version of the facts as true, the availability of qualified immunity is not a question
of law that can be appealed immediately.
The appeal is DISMISSED for lack of jurisdiction.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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Grayson v. Snow
Combined Opinion