                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1043n.06

                                             No. 11-2221

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                          FILED
DEON LARON GENTRY,                                         )                          Oct 01, 2012
                                                           )                   DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                                 )
                                                           )
v.                                                         )   ON APPEAL FROM THE UNITED
                                                           )   STATES DISTRICT COURT FOR
COUNTY OF WAYNE; DANIEL J. CARMONA;                        )   THE   EASTERN DISTRICT OF
WARREN EVANS; ROBERT FICANO;                               )   MICHIGAN
DANIEL PHANNES; HAROLD CUERTON;                            )
LAWRENCE MEYER; DONALD WATTS;                              )
MICHELLE GARLAND; RICHARD WOLF;                            )
LARRY DAVIS; COMMANDER BOOTH;                              )
PALMER COLEMAN, JR.; RICHARD PERKINS;                      )
J. GRYSKO; DONALD COX,                                     )
                                                           )
       Defendants-Appellants.                              )



       Before: MERRITT, McKEAGUE, AND STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. In this action filed pursuant to 42 U.S.C. § 1983, Deon

Laron Gentry alleges that police officer Daniel J. Carmona used excessive force in attempting to

apprehend him during police response to a domestic violence call. Deputy Carmona appeals the

district court’s denial of his motion for summary judgment on qualified immunity grounds. Because

the officer relies on disputed facts, we DISMISS the appeal for lack of jurisdiction.

                                        I. BACKGROUND

       The thorough recitation of the facts in the district court’s order is adopted for purposes of this

appeal. The order notes that the “crux” of this case is the struggle in the stairwell immediately
preceding the shooting of Gentry by Deputy Carmona. Carmona recounts those events as follows:

Gentry fell on top of Deputy Merrow; Merrow shouted that Gentry was trying to take his weapon;

Deputy Carmona visually confirmed that Gentry was attempting to do so; and he fired a shot in

response. In contrast, Gentry alleged that he and Deputy Merrow fell down beside each other, with

the deputy slightly on top of him; that Deputy Merrow did not yell to his fellow officers that Gentry

was attempting to take his weapon; and that, as Gentry placed both palms flat on the ground and

attempted to push himself up to standing, he was shot in the back without further warning. Although

Deputy Carmona argued that this dispute was not “genuine” because Gentry’s testimony conflicted

with consistent testimony from four police officers, the district court observed that this was an

implicit, and inappropriate, request to assess witness credibility on a motion for summary judgment.

Finding that the determination of whether Deputy Carmona’s actions were reasonable hinged on

disputed facts, the district court denied the motion for summary judgment. This appeal followed.

                                        II. DISCUSSION

A. Jurisdiction

       While the denial of qualified immunity “is an appealable final decision pursuant to 28 U.S.C.

§ 1291,” Austin v. Redford Twp. Police Dep’t, 690 F.3d 490, 495 (6th Cir. 2012), this is true only

“to the extent that it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

Should the legal arguments presented by the defendant “rely entirely on [his or her] own disputed

version of the facts, the appeal boils down to issues of fact and credibility determinations that we

cannot make.” Thompson v. Grida, 656 F.3d 365, 367 (6th Cir. 2011) (citing Berryman v. Rieger,

150 F.3d 561, 564 (6th Cir. 1998)).




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B. Factual Disputes on Appeal

       Deputy Carmona presents his issues on appeal as pure questions of law. He argues that the

district court incorrectly analyzed the objective reasonableness of his actions by placing too much

emphasis on whether Gentry was reaching for or had obtained control over Deputy Merrow’s gun.

Carmona contends that proper consideration of the record as a whole renders Gentry’s claims

immaterial.

       Excessive or deadly force claims are analyzed under the Fourth Amendment’s

“reasonableness” standard, Schreiber v. Moe, 596 F.3d 323, 331-32 (6th Cir. 2010), that is, whether

the totality of the circumstances justified the use of force. See Tennessee v. Garner, 471 U.S. 1, 8-9

(1985). However, the question of “whether the use of deadly force at a particular moment is

reasonable depends primarily on objective assessment of the danger a suspect poses at that

moment.” Bouggess v. Mattingly, 482 F.3d 886, 889 (6th Cir. 2007) (emphasis added). Accordingly,

the district court’s primary focus on the “crux” of the case—the moments immediately preceding the

alleged use of excessive or deadly force—was appropriate.

       Moreover, it is clear that Deputy Carmona’s position is entirely dependent on a version of

material and disputed facts construed in the light most favorable to him. He asserts that the shooting

was a reasonable reaction to Deputy Merrow’s exclamation that Gentry was reaching for or had

grabbed his weapon.1 The facts surrounding this issue are material to determining whether the

deadly force employed by Deputy Carmona was reasonable. They are also unquestionably in dispute




       1
       In fact, the cases Deputy Carmona relies upon in support of his arguments “are only
analogous if this Court accepts [his] version of the facts.” Thompson, 656 F.3d at 367.

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and, at this stage, must be viewed in the light most favorable to Gentry for purposes of appeal. See

Thompson, 656 F.3d at 367.

       Deputy Carmona also argues that his case fits within a narrow subset of cases in which the

record contains objective evidence confirming an officer’s version of the facts and refuting the

plaintiff’s conflicting version. See, e.g., Scott v. Harris, 550 U.S. 372, 380-81 (2007) (holding that

conflicting versions of a car chase between plaintiff and police did not create a genuine issue of

material fact because plaintiff’s version was “blatantly contradicted” by videotape evidence).

Circumstances such as the videotape in Scott are not present here. Nor are we presented with a case

in which the only account of the events comes from officer testimony. See, e.g., Chappell v. City

of Cleveland, 585 F.3d 901, 910-11 (6th Cir. 2009) (reversing district court’s denial of qualified

immunity where officers were the only witnesses to shooting and their testimony was

uncontradicted). This record contains testimony of Gentry, the deputies, and third parties. Simply

because Gentry’s testimony conflicts with that of several police officers does not undercut the

existence of genuine and material issues of fact. See Jones v. Yancy, 420 F. App’x 554, 557 (6th Cir.

2011) (concluding that genuine issue of material fact existed based on plaintiff’s and officers’

conflicting versions of events surrounding alleged use of excessive force). Resolution of differing

factual accounts and credibility determinations are entrusted to the finder of fact.

                                       III. CONCLUSION

       Rather than presenting a purely legal question, Deputy Carmona seeks qualified immunity

based on disputed facts viewed in the light most favorable to him. Because disputes of material fact

remain, we are without jurisdiction and DISMISS the appeal.




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