                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                        UNITED STATES CO URT O F APPEALS
                                                                         August 1, 2007
                                    TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                          Clerk of Court

 V A N ESSA A RN O LD ,

           Plaintiff-Appellee,

 and

 LO REN ZO CA STILLO ,                                    No. 06-4080
                                                  (D.C. No. 2:04-CV-564-DAK)
           Plaintiff,                                       (D. Utah)
 v.

 SKIP CURTIS, a U tah County
 Sheriff’s Deputy,

           Defendant-Appellant.



                                 OR DER AND JUDGM ENT *


Before HA RTZ, M cKA Y, and GORSUCH, Circuit Judges.


       Because qualified immunity is designed to protect law enforcement officers

doing their job within the bounds of law by providing them an immunity from suit

– not just having to stand trial – w e seek to resolve the issue at the earliest

possible stage. In some cases, however, we are unable to do so. This is one such




       *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
case. The parties in this interlocutory appeal present dueling and radically

divergent accounts of a skirmish between them, and which factual story one

credits will very likely determine the appropriate legal disposition of their

dispute. Under these circumstances, where unresolved and material factual

disputes control the legal analysis, we are unable to resolve the question of

qualified immunity at the summary judgment stage and thus dismiss this

interlocutory appeal in favor of further proceedings in the district court.

                                           ***

       M s. Arnold’s Narrative. According to Vanessa Arnold and Lorenzo

Castillo, 1 they learned the hard way not to talk during a movie. Together they

ventured to a Sunday afternoon matinee showing of the movie Troy in a Provo,

Utah theater, sitting in the last row of the theater where they chatted during the

previews. See Aplt. App. at 136, 291-95. Before the movie started, an off-duty

Utah sheriff’s deputy, Harold “Skip” Curtis, seated nearby in plain clothes w ith

his wife, confronted M s. Arnold and M r. Castillo. See id. at 295-96.

Specifically, M r. Curtis told M s. Arnold to “shut up” three times; called her a

“bitch”; and made a racial slur about M s. Arnold’s Hispanic background. See id.

at 137-39, 296-98. M s. Arnold and M r. Castillo did not respond to M r. Curtis.




       1
           M r. Castillo is no longer a party to this appeal, as he and M r. Curtis have
settled.

                                           -2-
See id. at 138-39. They remained generally silent throughout the movie. See id.

at 139-44.

      After the movie ended, M r. Castillo stood, approached M r. Curtis, and

asked him to apologize to M s. Arnold. See id. at 144-48, 196-97, 311. M r. Curtis

responded by asking M r. Castillo if he “want[ed] to play.” Aplt. App. at 164,

168, 197. M r. Curtis also declared that he was a police officer, told M r. Castillo

that he was under arrest, and grabbed M r. Castillo by the shoulder. See id. at

148-49, 162-64, 197, 311-15. M s. Arnold then began pleading with M r. Curtis in

Spanish to let go of M r. Castillo. See id. at 164-65, 172, 315-19.

      At this point, M r. Curtis grabbed M s. Arnold with both of his hands and

then lifted, turned, and threw her down the stairs. See id. at 172-77, 316, 319-20,

322-27. She landed on her back and head. See id. at 177, 320. W hile M s. Arnold

cried for help as she lay sprawled on the stairs, M r. Curtis detained M r. Castillo,

prevented him from assisting her, and escorted him from the theater into a

hallw ay. See id. at 177-79, 320-22, 327-28; see also generally id. at 543-46

(affidavit of witness Betty Dohse). There M r. Curtis flashed his badge to a

theater employee and demanded M r. Castillo’s identification. See Aplt. App. at

178-79. Calling M r. Castillo “stupid,” M r. Curtis escorted him to the door of the

parking garage. Id. at 180. After calling into police dispatch, M r. Curtis

informed M r. Castillo that he had an outstanding warrant related to a car accident.




                                          -3-
See id. at 180, 183. Instead of continuing his detention of M r. Castillo, however,

M r. C urtis released him. See id. at 180-81.

      M eanwhile, back in the theater, a couple assisted M s. Arnold off the stairs

and into a restroom, where M s. Arnold experienced pain in her neck, the back of

her head, her right eye, her lower back, and her arm. See id. at 328-337.

Paramedics arrived, placed M s. Arnold on a stretcher, and took her to the

hospital. See id. at 182-83, 192-93, 337. M s. Arnold continues to complain of,

among other things, a painful lump on the back of her head; headaches for which

she takes prescribed medications; lasting vision problems; and fainting spells.

See id. at 377-97.

      M r. Curtis’s Narrative. M r. Curtis presents a much different story, in

which M r. Castillo – not he – provoked the incident that afternoon in the Provo

theater. After listening to M s. A rnold and M r. Castillo talk through the preview s

and minutes into the feature film, M r. Curtis turned around from his second-to-

last-row seat and politely asked the last-row-sitting pair to refrain from talking

during the movie. See Aplt. App. at 33-37. According to M r. Curtis, M s. Arnold

and M r. Castillo continued to talk, so he stood up, walked over a couple seats,

faced M r. Castillo, reminded him that he already asked them “nice[ly]” to stop

talking, and told him that, unless M r. Castillo w ould like to buy M r. and M rs.

Curtis’s movie tickets, the pair must stop talking. See id. at 36-37.




                                          -4-
      M r. Curtis testified that M r. Castillo and M s. Arnold continued to talk

throughout the entire movie, including on a cell phone. See id. at 39, 41-42.

After sitting through most or all of the end-of-the-movie credits, M r. Castillo

approached M r. Curtis, several times demanded his apology, and told M r. Curtis

that he could not leave until the matter w as settled; M r. Castillo’s clenched his

fists, and M r. Curtis understood him to threaten a fight. See id. at 38-41, 43. In

an “attempt[] to de-escalate the situation,” M r. Curtis informed M r. Castillo that

he was a police officer and displayed his badge. See id. at 41.

      At this point, M r. Curtis testified that M s. Arnold “screamed no, no, no”

and “reached over and grabbed [his] arm, [his] hand, [and his] wrist.” Id. at 43,

47. M s. Arnold continued to “attack” M r. Curtis by grabbing his right arm and

wrist as he escorted M r. Castillo toward the end of the row. See Aplt. App. at 43-

47. A screaming M s. Arnold grabbed M r. Curtis by his waist, pressed his left arm

to his side, and rested her hand atop of his concealed gun. See id. at 50-52. M r.

Curtis told M r. Castillo to call off M s. Arnold, both of whom initially complied.

See id. But, as M r. Curtis proceeded to escort M r. Castillo dow n the stairs, M s.

Arnold again grabbed M r. Curtis around the waist. See id. at 52-53. M r. Curtis

again told M r. Castillo to call her off, and again M s. Arnold eventually complied.

See id. at 58. M s. Arnold then ran between M r. Curtis and M r. Castillo –

knocking M r. Curtis’s hand off of M r. Castillo’s arm – and stood in front of the

tw o as they walked down the stairs. See id. at 59-60. For the third time, M r.

                                          -5-
Curtis instructed M r. Castillo to call her off, and yet again she complied. See

Aplt. App. at 60-61.

      As M s. Arnold w alked backward down the stairs while M r. Curtis and M r.

Castillo continued down, M r. Curtis “very well could have bumped into her or

pushed her.” Id. M s. Arnold fell backward down the stairs, where M r. Curtis saw

her “laying face up down the stairs in front of” them. Id. at 61. M r. Curtis

testified that he in no manner picked up M s. Arnold or tossed her down the stairs.

To the contrary, one witness, Cheri Lockhart, testified that M r. Castillo took a

sw ing at M r. Curtis, M s. Arnold “hysterically” attacked M r. Curtis, M r. Curtis

grabbed M s. Arnold in self defense, and M s. Arnold fell down stairs. See id. at

427-28, 433-36.

      M r. Curtis testified that he escorted M r. Castillo to the theater’s parking

garage, where M r. Curtis asked M r. Castillo for identification. See id. at 70. M r.

Castillo stated it w as in his back pocket, and M r. Curtis retrieved it. See id.

After calling the police dispatch, M r. Curtis learned that M r. Castillo had an

outstanding warrant and a suspended license. See Aplt. App. at 71. Based upon

his experience with Salt Lake City’s practice with respect to the enforcement of

warrants in similar situations, along with his concern for his wife who had

departed the area, M r. Curtis released M r. Castillo. See id. at 71-76; see

generally id. at 92-100.




                                          -6-
      District Court Proceedings. M s. Arnold brought this suit under 42 U.S.C.

§ 1983 alleging that M r. Curtis violated her Fourth Amendment rights by

employing excessive force when he – unprovoked – intentionally grabbed her,

lifted her, turned her, and tossed her down the stairs. M r. Curtis responded by

filing a motion for summary judgment invoking the defense of qualified

immunity. The district court denied M r. Curtis’s motion, holding that, if a jury

credits the testimony and evidence adduced by M s. Arnold, M r. Curtis violated

M s. Arnold’s clearly established rights. M r. Curtis thereafter filed this

interlocutory appeal.

                                          ***

      W hile w e generally adhere to the rule that only final district court orders

and judgments are appealable under 28 U.S.C. § 1291, the Supreme Court in

Cohen v. Beneficial Industrial Loan Corporation recognized that there are a

“small class” of cases in which we should give that statute a “practical rather than

technical construction,” exercising appellate jurisdiction over interlocutory

appeals that are “too important” and “too independent” to wait until it is “too late

effectively to review the . . . order [so that] the rights conferred by the statute, if

it is applicable, will have been lost, probably irreparably” – but only “so long as

the matter [does not] remain[] open, unfinished or inconclusive.” 337 U.S. 541,

546-47 (1949).




                                           -7-
      Qualified immunity often fits well into this mold. Because it is an

immunity from suit rather than a mere defense to liability, its utility is greatly

diminished if a case is mistakenly permitted to proceed to trial. See Scott v.

Harris, 127 S. Ct. 1769, 1774 n.2 (2007); M itchell v. Forsyth, 472 U.S. 511, 526

(1985). Indeed, the Supreme Court has repeatedly emphasized the importance of

resolving immunity questions “at the earliest possible stage in litigation.” Scott,

127 S. Ct. at 1774 n.2 (citing M itchell, 472 U.S. at 527); see also Boles v. Neet,

486 F.3d 1177, 1179 n.1 (10th Cir. 2007) (quoting Tonkovich v. Kan. Bd. of

Regents, 159 F.3d 504, 515 (10th Cir. 1998)). Once the defendant asserts the

qualified-immunity defense, the plaintiff bears the “heavy two-part burden” of

demonstrating: (1) the defendant’s violation of a constitutional right; and (2) the

“infringed right at issue was clearly established at the time of the allegedly

unlawful activity such that a reasonable law enforcement officer would have

known that his or her challenged conduct was illegal.” M artinez v. Carr, 479

F.3d 1292, 1294-95 (10th Cir. 2007); see also Hannula v. City of Lakewood, 907

F.2d 129, 131 (10th Cir. 1990), abrogated on other grounds by Dixon v. Richer,

922 F.2d 1456, 1461 (10th Cir. 1991); Callahan v. M illard County, --- F.3d ---,

2007 W L 2028971, *2 (10th Cir. 2007).

      Still, orders denying qualified immunity before trial are appealable on an

interlocutory basis only to the extent they implicate issues of law. See Shrum v.

City of Coweta, Okla., 449 F.3d 1132, 1137 (10th Cir. 2006) (citing Behrens v.

                                          -8-
Pelletier, 516 U.S. 299, 313 (1996)); accord Perez v. Ellington, 421 F.3d 1128,

1131 (10th Cir. 2005) (citing M itchell, 472 U.S. at 528). These issues generally

include whether, under the plaintiff’s version of the facts, the defendant violated

the plaintiff’s constitutional rights and, if so, whether the law at the time of the

transactions in question clearly established the right so as to put the defendant on

notice of the perils of his or her actions. See, e.g., M artinez, 479 F.3d at 1294-95

(citing, inter alia, M itchell, 472 U.S. at 527-28); Foote v. Spiegel, 118 F.3d 1416,

1422 (10th Cir. 1997); Allen v. M uskogee, Okla., 119 F.3d 837, 841 (10th Cir.

1997). But defendant governmental officials cannot appeal the pretrial denial of

qualified immunity to the extent that the district court order decides nothing more

than that the facts, as asserted by the plaintiff, are sufficiently supported by the

evidence to survive summary judgment. See Foote, 118 F.3d at 1422-23 (citing

Johnson v. Jones, 515 U.S. 304, 312-14 (1995)). W hether inside or outside the

qualified immunity context, it is not our province to act as fact finders on

summary judgment. This combination of rules thus seeks to mediate “the conflict

between our simultaneous desires to hold public officials to standards of lawful

behavior, to protect public officials who have behaved reasonably against the

many burdens required to establish reasonableness through the full trial process,

and to maintain the values served by the final judgment rule.” W right & M iller,

15A Fed. Prac. & Proc. Juris. 2d § 3914.10.




                                          -9-
      In the appeal at hand, the legal questions are settled and largely undisputed.

At the time of the encounter, there is no question that the Fourth Amendment

right to be free from excessive force clearly embraced the right of an innocent

citizen to attend a movie without being seized by a self-identified law

enforcement officer and thrown down a staircase. 2 W e do not understand M r.

Curtis as asking us to conclude otherwise. Likewise, there can be no serious

question that, if the jury credits the facts she has developed in this record, M s.

Arnold states a claim for relief under this clearly established law.

      Instead, the only real question posed by M r. Curtis is whether his version of

the facts is more credible than M s. Arnold’s. W e readily acknowledge that M r.

      2
         See, e.g., Walker v. City of Orem, 451 F.3d 1139, 1159-60 (10th Cir.
2006) (holding, under totality of circumstances, that officers violated clearly
established law by employing excessive force in shooting man standing over
twenty feet aw ay who possessed a knife, “previously eluded police, nearly
running over an officer, and had driven recklessly just prior to the incident”
because officer acted “precipitously,” man “posed a danger only to himself,” and
“[t]he crimes at issue (theft of the vehicle, eluding the officers) were not
particularly severe”); Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179,
1185, 1193 (10th Cir. 2001) (internal citation omitted) (holding officer acted
unreasonably – and thus, with excessive force – when, unprovoked yet without
causing any physical harm, pointed firearm at individuals within home during
execution of search w arrant; “[w ]here a person has submitted to the officers’
show of force without resistance, and where an officer has no reasonable cause to
believe that person poses a danger to the officer or to others, it may be excessive
and unreasonable to continue to aim a loaded firearm directly at that person, in
contrast to simply holding the w eapon in a fashion ready for immediate use”);
Dixon v. Richer, 922 F.2d 1456, 1464 (10th Cir. 1991) (holding as clearly
established violation of Fourth Amendment’s protection against excessive force
police officers’ beating male driver – and subsequently female passenger, after
she pled for officers to stop beating man – following couple’s departure from
restaurant w here brother caused property damage).

                                         - 10 -
Curtis vigorously disputed this characterization of his appeal at oral argument.

But at every turn in his brief and argument to us, he rests his appeal on a highly

contested version of the events in question. For example, M r. Curtis:

      1.     outlines the facts as if it were settled that M s. Arnold and M r.
             Castillo, as opposed to he, provoked the confrontation in the theater;

      2.     omits reference to M s. Arnold’s allegation that, unprovoked, he told
             her and M r. Castillo to “shut up” three times, called M s. Arnold a
             “bitch,” and made a racial slur;

      3.     fails to reference M s. Arnold and M r. Castillo’s pertinent testimony
             and instead selectively cites to other w itness testimony – indeed, M r.
             Curtis does not mention that he asked M r. Castillo if he “want[ed] to
             play” when M r. Castillo asked M r. Curtis to apologize to M s.
             Arnold;

      4.     fails to acknowledge testimony from M s. Arnold and her witnesses,
             that he – unprovoked – grabbed, picked up, turned, and tossed M s.
             Arnold dow n the theater stairs, instead reciting the facts as if M s.
             Arnold accidentally fell down the stairs during her aggressive actions
             toward him during the commotion; and

      5.     disputes the contention that he prevented M r. Castillo from assisting
             the injured M s. Arnold, instead testifying that the uninjured M s.
             Arnold walked out of the auditorium.

See Aplt. Op. Br. at 5-12. Perhaps most detrimentally to his effort to invoke our

jurisdiction, M r. Curtis then employs only his own, materially disputed version of

the facts as the basis of his legal argument that he acted reasonably, and therefore

lawfully, discounting entirely M s. Arnold’s record evidence to the contrary. See

id. at 12-52 (outlining reasonableness of M r. Curtis’s actions under his version of

facts as opposed to M s. Arnold and M r. Curtis’s version of facts); see also



                                        - 11 -
generally Aplt. Reply Br. (disputing M s. Arnold and M r. Castillo’s factual

assertions; again analyzing M r. Curtis’s reasonableness under his version of

facts).

          To be sure, a jury is free to credit M r. Curtis and his witnesses over M s.

Arnold and hers. But when a qualified immunity claimant rests his or her

interlocutory appeal on a dispute over material facts, rather than law, we are

without jurisdiction to hear it. Accordingly, this interlocutory appeal is

dismissed.

                                            ENTERED FOR THE COURT



                                            Neil M . Gorsuch
                                            Circuit Judge




                                             - 12 -
