                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                        UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT                        July 25, 2005

                              _______________________               Charles R. Fulbruge III
                                                                            Clerk
                                    No. 04-50100
                              _______________________


                        ALLEN JAMES NEW; TRUMAINE NEW,

                                                         Plaintiffs-Appellees,

                                       versus

                            CITY OF SAN ANTONIO; ET AL,

                                                                    Defendants,

                            PHILIP WANG, Individually,

                                                         Defendant-Appellant.



                 Appeal from the United States District Court
                       For the Western District of Texas
                                SA-00-CV-1481-RF


Before JONES, WIENER, and CLEMENT, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

                 Allen New and his son Trumaine (hereinafter the “News”)

sued       San    Antonio    Police   Officer   Philip    Wang,   among      other

defendants, under 42 U.S.C. § 1983 and state law for his alleged

use of excessive force during an arrest.           A jury found in favor of

Officer Wang on all counts and issues including his defense of

qualified immunity.           Following the entry of judgment for Officer



       *
            Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Wang, the News moved for and were granted a new trial on the

grounds that the admission of evidence related to Allen New’s

cocaine possession was erroneous and tainted the jury’s verdict.

Officer Wang contends on appeal that his having to stand trial

again amounts to the improper denial of his immunity.

            We must dismiss this appeal.   The district court’s grant

of a new trial is an interlocutory order, not a final judgment as

prescribed by 28 U.S.C. § 1291, and Wang’s immunity does not in

this instance afford an exception to the final judgment rule.

                            I.   BACKGROUND

            The material facts underlying this § 1983 suit were hotly

disputed.    On March 7, 1999, Allen New and his son Trumaine went

fishing with David Castano at Pecan Valley Park in San Antonio.

Because Trumaine was thirsty, Castano drove Allen (sitting in the

front passenger side of the Honda Civic) and Trumaine (sitting in

the back seat) to a nearby convenience store.       As they left the

convenience store, Castano became disturbed that Officer Wang was

traveling immediately behind them. Castano asserted that he turned

into a random driveway, 570 Morning View Drive, which Officer Wang

identified as a known crack house.     When Officer Wang thought he

saw Castano making a quick drug transaction, Wang stopped and

questioned the suspects. Castano’s name, run through the computer,

turned up on two outstanding warrants.




                                   2
            As Officer Wang was attempting to handcuff Castano, he

noticed Allen New digging in his back pants pocket.             Officer Wang

ordered Allen New to place his hands on the dashboard.            Initially,

Allen New complied with the request, but, as soon as Officer Wang’s

attention was refocused on handcuffing Castano, Allen began digging

in his back pocket again.        Officer Wang commanded Allen a second

and third time to place his hands on the dashboard, but Allen

disregarded him. Convinced that Allen’s actions placed him at risk

of death or serious bodily injury, Wang jumped into the front seat

of   the   vehicle   and   forcefully     attempted   to     restrain   Allen.

Trumaine then joined in the struggle between Officer Wang and his

father.     Responding to Wang’s emergency call, a fellow police

officer arrived to assist in subduing the News.                 Allen New is

approximately five feet, ten inches tall, and was visibly impaired

and had heart problems.       His son Trumaine was then thirteen years

old and five feet, two inches tall at the time of the arrest.

            Allen    and   Trumaine   characterize     the    events    as   an

unprovoked beating that left Allen with a swollen eye and broken

nose and Trumaine with compacted teeth.             Officer Wang, for his

part, searched the vehicle after the melee and found a rock of

crack cocaine in the seat where Allen New had been digging in his

back pocket.1



      1
            Charges against Allen New for possession of a controlled substance,
assaulting a police officer, and resisting arrest were all dismissed without
prosecution.

                                      3
               The News sued Officer Wang individually and in his

official capacity under 42 U.S.C. § 1983 and pendent state law for

violating their right to be free from the use of excessive force.

After discovery, Officer Wang moved unsuccessfully for summary

judgment   on        qualified   immunity;    genuinely      disputed    issues       of

material fact rendered summary disposition inappropriate.

               At trial, the district court admitted evidence of Allen

New’s alleged possession of the crack cocaine, its admission

preceded by a lengthy limiting instruction as to the weight the

jury could afford the evidence.               The court understood that the

nugget    of    crack     cocaine     powerfully    supported       Officer     Wang’s

contention that Allen New was reaching for something in his back

pocket — albeit not a weapon of any sort — even as the same

evidence separately prejudiced Allen, not only by casting doubt on

his veracity but by injecting an extraneous derogatory issue.                        The

jury returned         a   unanimous    verdict     that   Officer    Wang     had    not

violated       the    News’   constitutional        rights    to    be   free       from

unreasonable search and seizure and from excessive force, and the

jury found facts that entitled Wang to qualified immunity on all

counts.

               Nevertheless, following the entry of judgment on the

verdict, the district court granted the News’ motion for new trial

based on proceedings so “corrupted by the manner in which the Court

handled the admission of the cocaine possession as to taint the

jury’s verdict.”          The district court further commented:

                                          4
       The manner of the admission, and not necessarily the
       admission itself, is grounds for a new trial because the
       evidence was not properly addressed before trial and the
       limiting instruction offered to the jury was given in
       haste with little clarity and precision. As admitted and
       instructed, the evidence’s prejudice far outweighed its
       probative value.    The evidence of drug possession is
       potentially relevant to the issues properly before the
       jury, including probable cause and the Officer’s
       subjective perception of the events.

             Officer Wang has appealed.        He argues that the district

court should not have disturbed the jury’s verdict because the

limiting instruction was not erroneous.

                           II.    JURISDICTION

             Before reaching the merits, this court must consider

whether we have appellate jurisdiction.             Kelly v. Moore, 376 F.3d

481, 483 (5th Cir. 2004).          An order granting a new trial is

generally not appealable because such an order is interlocutory and

not a final judgment under 28 U.S.C. § 1291.              Id.

             As an exception to the prohibition on interlocutory

appeals, this court has jurisdiction to review denials of qualified

immunity asserted by government officers where the trial court’s

determination turns on a matter of law.             See Mitchell v. Forsyth,

472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16 (1985); Feagley v.

Waddill, 868 F.2d 1437, 1439 (5th Cir.1989). Officer Wang contends

that   the   district   court’s   grant   of    a   new   trial   negates   the

qualified immunity to which the jury found him entitled.                    This

effective denial of qualified immunity should, he asserts, provide

a jurisdictional foundation for his challenge to the new trial


                                     5
order. Officer Wang relies on a motions panel decision, Stevens v.

Corbell, 798 F.2d 120 (5th Cir. 1986) (“Corbell I”), as support for

the proposition that appellate jurisdiction over this interlocutory

appeal exists here.

            Although   Corbell    I   tends   to   support   Officer   Wang’s

invocation of jurisdiction in this case, it does not control.               In

Corbell I, the jury found that unreasonable force had not been used

by the defendant state policemen in subduing the plaintiff. The

district court ordered a new trial on the ground that it had erred

in instructing the jury on the issue of intent.                This court’s

motions panel held that the district court’s grant of a new trial

implicated the issue of the officers’ entitlement to qualified

immunity.    Id.2

            The subsequent oral argument panel declined to reconsider

the jurisdictional determination made earlier by the motions panel.

See Stevens v. Corbell, 832 F.2d 884, 887 (5th Cir.1987) (“Corbell

II”).     Nevertheless, Corbell II ultimately affirmed the district

court’s order granting Stevens a new trial because, as a matter of

law, the district court had erroneously instructed the jury on the

issue of the officer’s intent.        Id. at 891.




      2
            Corbell I was a provisional jurisdictional determination made by a
motions panel which is not binding on the oral argument panel to which the case
is submitted or on a later panel of this court. Northshore Development, Inc. v.
Lee, 835 F.2d 580, 583 (5th Cir. 1988); Fischer v. United States, 759 F.2d 461,
463 (5th Cir. 1985); E.E.O.C. v. Neches Butane Prods. Co., 704 F.2d 144 (5th
Cir. 1983).

                                      6
          Appealability in Corbell I turns on the court’s holding

that, as in Mitchell, the intertwining of jury instructions and

qualified immunity with the grant of a new trial could be reviewed

as a matter of law.    Corbell II emphasized that the court was

reviewing only the legal sufficiency of the instructions.   In this

case, by contrast, the new trial grant depended on the court’s

evidentiary ruling, a matter that can at most be reviewed for abuse

of discretion by this court.    A discretionary call is not a pure

matter of law. Consequently, Wang’s appeal does not fit within the

Mitchell paradigm permitting us to review interlocutory legal

issues where qualified immunity is at stake. On this narrow basis,

the appeal must be DISMISSED.




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