     Case: 12-50092     Document: 00512025228         Page: 1     Date Filed: 10/18/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 18, 2012
                                     No. 12-50092
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DANIEL THOMAS, Individually and as Representative of the
Estate of Daniel Christopher Thomas; GLORIA THOMAS, Individually
and as Representative of the Estate of Daniel Christopher Thomas;
MARY KELLEY, as Next Friend of Kristen Danyaile Thomas,

                                                  Plaintiffs-Appellees

v.

ROBERT MARTINEZ, Individually and in His Official Capacity;
LARRY NORMAN, Individually and in His Official Capacity,

                                                  Defendants-Appellants


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:08-CV-891


Before DAVIS, JONES and DENNIS, Circuit Judges.
PER CURIAM:*
        San Antonio police officers Robert Martinez and Larry Norman (“Officers”)
appeal the district court’s denial of their motion for summary judgment on the
ground of qualified immunity in a shooting incident that killed an unarmed,
drunken suspect. The district court denied qualified immunity at this stage


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 12-50092   Document: 00512025228      Page: 2   Date Filed: 10/18/2012

                                  No. 12-50092

because the testimony of an alleged eyewitness, Mr. Cardenas, directly
contradicted the officers’ testimony concerning the demeanor of the suspect and
the officers' words and actions. The parties are well aware that this court may
not make credibility determinations in the course of deciding a qualified
immunity appeal; that we must accept all facts in the light most favorable to the
non-movant; and that we have appellate jurisdiction only if a qualified immunity
defense turns on questions of law. Flores v. City of Palacios, 381 F.3d 391, 393
(5th Cir. 2004).
      The district court found a genuine issue of material fact in the contrasting
statements of the officers and Cardenas. This is undoubtedly correct. The
officers’ only response is to assert that Cardenas’s testimony was so incredible
as to be unworthy of belief. The authority they rely on, Scott v. Harris, 550 U.S.
372, 380-81, 127 S. Ct. 1769 (2007), is distinguishable, because the undisputable
evidence there was a videotape record of the car chase, whereas here, the
evidence consists of conflicting testimony from the participants in the event and
the eyewitness.
      Because this interlocutory appeal does not turn on a question of law, the
appeal must be DISMISSED.




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