Sheila Conatser v. North Las Vegas Police Department , 445 F. App'x 932 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 02 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
SHEILA CONATSER, individually and as No. 09-17712
Special Administrator of the Estate of
Phillip Roger Conaster; ALLAN DC No. 2:06 cv-1236 PMP LRL
CONASTER,
Plaintiffs - Appellees, MEMORANDUM *
v.
NORTH LAS VEGAS POLICE
DEPARTMENT; EDMOND FINIZIE,
Lieutenant; SMITH; PETER SMIRGA,
Officer; CITY OF NORTH LAS VEGAS,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted July 18, 2011
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
District Judge. **
Defendants-appellants Peter Smirga and Edmond Finizie, police officers of
the City of North Las Vegas Police Department, shot and killed Phillip Conatser
outside of his mother’s home after responding to a report from his mother that
Conatser was violent, suicidal, and wanted the police to kill him. Conatser’s
parents sued under 42 U.S.C. § 1983 for, inter alia, violations of their son’s Fourth
Amendment right not to be subjected to excessive force. Defendants now appeal
the district court’s denial of their motions for summary judgment on qualified
immunity grounds. We dismiss the appeal for lack of jurisdiction, because it turns
on fact-related issues.
Viewing the facts in the light most favorable to plaintiffs, the district court
assumed for summary judgment purposes that Conatser “appeared calm, did not
attack the officers, and did not pose a threat to the officers at any time.” The court
explained that “Phillip would have been a threat if he charged the officers with the
knife, however, [his neighbors] Verona and Cortez testif[ied] Phillip did not attack
the officers at any time.” These facts led the district court to reject defendants’
qualified immunity defense: “[I]f Phillip did not charge the officers as averred by
**
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
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the neighbors, a reasonable officer would have known that shooting Phillip just
because he was holding a knife was a violation of clearly established law.”
On this appeal, defendants argue that the district court erred because the
evidence cannot support the inference that Conatser never attacked them. They
contend that the neighbors’ “assertion that Phillip Conatser never threatened the
officers is contradicted by independent evidence,” and that the district court
therefore “erred in accepting [the neighbors’] version of events.” We lack
jurisdiction to decide this issue. Summary judgment orders denying a qualified
immunity defense are immediately appealable only if they present “abstract issues
of law,” not “fact-related dispute[s] about the pretrial record.” Johnson v. Jones,
515 U.S. 304, 307, 317 (1995) (emphasis in original). We have jurisdiction to
review such summary judgment orders to the extent they decide that “a given set of
facts violates clearly established law,” but not to the extent they decide that “an
issue of fact is ‘genuine.’” Id. at 319; see Maropulos v. Cnty. of L.A., 560 F.3d 974,
975 (9th Cir. 2009) (per curiam) (“[A]n order denying qualified immunity on the
ground that a genuine issue of material fact exists is not a final, immediately
appealable order.”); Collins v. Jordan, 110 F.3d 1363, 1370 (9th Cir. 1997).
Scott v. Harris, 550 U.S. 372 (2007), and Wilkinson v. Torres, 610 F.3d 546(9th Cir. 2010), relied on by defendants, do not affect the analysis. Although both
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cases reached fact-related issues on interlocutory appeal of the denial of qualified
immunity at the summary judgment stage, neither case addressed the jurisdictional
defect that such issues potentially raise under Johnson. Indeed, Scott did not
mention jurisdiction at all. Thus, neither Scott nor Wilkinson expands our
jurisdiction. See Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1448
(2011) (“When a potential jurisdictional defect is neither noted nor discussed in a
federal decision, the decision does not stand for the proposition that no defect
existed.”); cf. Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011) (reaffirming Johnson
without mentioning Scott or acknowledging any exceptions to Johnson) (“[I]nstant
appeal is not available . . . when the district court determines that factual issues
genuinely in dispute preclude summary adjudication.”).
Because we lack appellate jurisdiction, this appeal is DISMISSED.
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