                                                                F I L E D
                                                          United States Court of Appeals
                                                                  Tenth Circuit
             UNITED STATES COURT OF APPEALS                       APR 1 2002

                                TENTH CIRCUIT               PATRICK FISHER
                                                                      Clerk



LORI KREPS SPENCER, individually and as
guardian and conservator of Ryan Lance Kreps;
NOBLE EUGENE KREPS; and ELVA JANET
KREPS, personal representative of the Estate of
Lance Robin Kreps,

      Plaintiffs - Appellees,                         No. 01-1102
                                                  (D.C. No. 99-M-337)
v.                                                   (D. Colorado)

COUNTY OF CONEJOS; CONEJOS COUNTY
BOARD OF COUNTY COMMISSIONERS;
CONEJOS COUNTY SHERIFF’S
DEPARTMENT; ISAAC GALLEGOS, Conejos
County Sheriff; RICARDO MARTINEZ; and
MICHAEL LEBLANC,

      Defendants,

and

CHRIS MONROE,

     Defendant - Appellant.
_________________________

LORI KREPS SPENCER, individually and as
guardian and conservator of Ryan Lance Kreps;
NOBLE EUGENE KREPS; and ELVA JANET
KREPS, personal representative of the Estate of
Lance Robin Kreps,

      Plaintiffs - Appellees,
 v.                                                          No. 01-1103
                                                         (D.C. No. 99-M-337)
 COUNTY OF CONEJOS; CONEJOS COUNTY                          (D. Colorado)
 BOARD OF COUNTY COMMISSIONERS;
 CONEJOS COUNTY SHERIFF’S
 DEPARTMENT; ISAAC GALLEGOS, Conejos
 County Sheriff; and CHRIS MONROE,

           Defendants,

 and

 RICARDO MARTINEZ and MICHAEL
 LEBLANC,

           Defendants - Appellants.




                          ORDER AND JUDGMENT *


Before SEYMOUR, KELLY and WINDER, ** District Judge.



       Plaintiffs brought this 42 U.S.C. § 1983 action alleging that violations of

the Fourth Amendment led to the shooting death of decedent Lance Krebs.

Defendants Chris Monroe, Ricardo Martinez, and Michael LeBlanc moved for


       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         The Honorable David K. Winder, United States District Court for the
District of Utah, sitting by designation.

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summary judgment, claiming qualified immunity. The district court denied the

motion, holding that plaintiffs had presented sufficient evidence to create factual

disputes precluding summary judgment on the basis of qualified immunity.

Defendants appeal. Because we lack jurisdiction, we dismiss the appeal.

      As the Supreme Court has recently reiterated,

      Qualified immunity is “an entitlement not to stand trial or face the other
      burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The
      privilege is “an immunity from suit rather than a mere defense to liability;
      and like an absolute immunity, it is effectively lost if a case is erroneously
      permitted to go to trial.” Ibid. As a result, “we repeatedly have stressed
      the importance of resolving immunity questions at the earliest possible
      stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per
      curiam).

Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001) (emphasis in original). For these

reasons, the Court has held that “a district court’s denial of a claim of qualified

immunity, to the extent that it turns on an issue of law, is an appealable ‘final

decision’ within the meaning of 28 U.S.C. § 1291, notwithstanding the absence of

a final judgment.” Mitchell, 472 U.S. at 530 (emphasis added). The Court has

made it clear, however, that where issues of fact preclude a legal determination

that a defendant is entitled to qualified immunity from suit, an order denying

qualified immunity is not final and appealable. See Behrens v. Pelletier, 516

U.S. 299, 312-13 (1996); Johnson v. Jones, 515 U.S. 304, 312-14 (1995); see also

Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997); Sevier v. City of

Lawrence, 60 F.3d 695, 700 (10th Cir. 1995).

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      In the case before us, plaintiffs filed a civil rights action alleging, among

other things, that the fatal shooting of the decedent, arising out of an attempt by

sheriff’s deputies to arrest him at his father’s home for suspected domestic

violence, violated the Fourth Amendment. One of the deputies fired the fatal

shot, another fired but missed, and a third did not fire at all but was allegedly in

charge with respect to the decision to arrest decedent with guns drawn. The three

deputies filed motions for summary judgment, claiming they are entitled to

qualified immunity. The district court, at a hearing on the motion, denied

summary judgment. The court made findings at the hearing but did not set forth

its findings in a written order.

      Relying on Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253 (10th Cir.

1998), defendants argue that the district court failed to make sufficient specific

findings, thereby giving this court jurisdiction to review the district court’s

determination that there are fact issues precluding summary judgment on

defendants’ claim of qualified immunity. Plaintiffs contend the district court’s

findings, as laid out at the hearing, are sufficiently detailed and support the

court’s conclusion that fact issues preclude summary judgment. Therefore,

plaintiffs assert, we lack jurisdiction over defendants’ interlocutory appeal.

      As we have noted, this court does not have interlocutory jurisdiction to

review the district court’s determination that genuine issues of fact preclude


                                          -4-
summary judgment on a claim of qualified immunity. Id. at 1259. In Behrens and

Johnson, the Court recognized the difficulties presented when a district court does

not fully identify the particular conduct of defendants that it deemed adequately

supported by evidence to defeat a pre-trial determination of qualified immunity.

In such a case, an appellate court must undertake a review of the record “to

determine what facts the district court, in light most favorable to the nonmoving

party, likely assumed.” Behrens, 516 U.S. at 313 (quoting Johnson, 515 U.S. at

319). Our independent review of the record makes clear there are multiple

questions of fact regarding defendants’ conduct in the death of decedent that

preclude our review of this matter.

      Because there are disputed issues of fact precluding judgment in

defendants’ favor, we have no jurisdiction over this appeal. Accordingly, we

DISMISS for lack of jurisdiction defendants’ appeal of the district court’s order.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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