                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           AUG 02 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

SHEILA CONATSER, individually and as             No. 09-17712
Special Administrator of the Estate of
Phillip Roger Conaster; ALLAN                    DC No. 2:06 cv-1236 PMP LRL
CONASTER,

              Plaintiffs - Appellees,            MEMORANDUM *

  v.

NORTH LAS VEGAS POLICE
DEPARTMENT; EDMOND FINIZIE,
Lieutenant; SMITH; PETER SMIRGA,
Officer; CITY OF NORTH LAS VEGAS,

              Defendants - Appellants.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                        Argued and Submitted July 18, 2011
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before:      TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
             District Judge. **

      Defendants-appellants Peter Smirga and Edmond Finizie, police officers of

the City of North Las Vegas Police Department, shot and killed Phillip Conatser

outside of his mother’s home after responding to a report from his mother that

Conatser was violent, suicidal, and wanted the police to kill him. Conatser’s

parents sued under 42 U.S.C. § 1983 for, inter alia, violations of their son’s Fourth

Amendment right not to be subjected to excessive force. Defendants now appeal

the district court’s denial of their motions for summary judgment on qualified

immunity grounds. We dismiss the appeal for lack of jurisdiction, because it turns

on fact-related issues.

      Viewing the facts in the light most favorable to plaintiffs, the district court

assumed for summary judgment purposes that Conatser “appeared calm, did not

attack the officers, and did not pose a threat to the officers at any time.” The court

explained that “Phillip would have been a threat if he charged the officers with the

knife, however, [his neighbors] Verona and Cortez testif[ied] Phillip did not attack

the officers at any time.” These facts led the district court to reject defendants’

qualified immunity defense: “[I]f Phillip did not charge the officers as averred by


      **
            The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.

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the neighbors, a reasonable officer would have known that shooting Phillip just

because he was holding a knife was a violation of clearly established law.”

      On this appeal, defendants argue that the district court erred because the

evidence cannot support the inference that Conatser never attacked them. They

contend that the neighbors’ “assertion that Phillip Conatser never threatened the

officers is contradicted by independent evidence,” and that the district court

therefore “erred in accepting [the neighbors’] version of events.” We lack

jurisdiction to decide this issue. Summary judgment orders denying a qualified

immunity defense are immediately appealable only if they present “abstract issues

of law,” not “fact-related dispute[s] about the pretrial record.” Johnson v. Jones,

515 U.S. 304, 307, 317 (1995) (emphasis in original). We have jurisdiction to

review such summary judgment orders to the extent they decide that “a given set of

facts violates clearly established law,” but not to the extent they decide that “an

issue of fact is ‘genuine.’” Id. at 319; see Maropulos v. Cnty. of L.A., 560 F.3d 974,

975 (9th Cir. 2009) (per curiam) (“[A]n order denying qualified immunity on the

ground that a genuine issue of material fact exists is not a final, immediately

appealable order.”); Collins v. Jordan, 110 F.3d 1363, 1370 (9th Cir. 1997).

      Scott v. Harris, 550 U.S. 372 (2007), and Wilkinson v. Torres, 610 F.3d 546

(9th Cir. 2010), relied on by defendants, do not affect the analysis. Although both


                                           3
cases reached fact-related issues on interlocutory appeal of the denial of qualified

immunity at the summary judgment stage, neither case addressed the jurisdictional

defect that such issues potentially raise under Johnson. Indeed, Scott did not

mention jurisdiction at all. Thus, neither Scott nor Wilkinson expands our

jurisdiction. See Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1448

(2011) (“When a potential jurisdictional defect is neither noted nor discussed in a

federal decision, the decision does not stand for the proposition that no defect

existed.”); cf. Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011) (reaffirming Johnson

without mentioning Scott or acknowledging any exceptions to Johnson) (“[I]nstant

appeal is not available . . . when the district court determines that factual issues

genuinely in dispute preclude summary adjudication.”).

      Because we lack appellate jurisdiction, this appeal is DISMISSED.




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