                        REVISED, July 29, 1998

                    UNITED STATES COURT OF APPEALS

                        for the Fifth Circuit

                _____________________________________

                             No. 96-40634
                _____________________________________


                           LORENZO COLSTON,

                                                 Plaintiff-Appellee,
                                 and

                       YOLANDA MICHELLE COLSTON,
                  Individually and as Next Friend of
          Lauren Colston and Quinton Colston, Minor Children

                                   Intervenors Plaintiff-Appellees,

                                VERSUS

BRYAN BARNHART, Texas Department of Public Safety Officer; et al,
                                                      Defendants,
                         BRYAN BARNHART,

                                                 Defendant-Appellant.

     ______________________________________________________

          Appeal from the United States District Court
                for the Eastern District of Texas
     ______________________________________________________
                          July 14, 1998

               ON APPLICATION FOR REHEARING EN BANC
     (Opinion November 19, 1997, 5th Cir., 1997 ____F.3d___)

Before KING, DAVIS and DeMOSS, Circuit Judges.

DAVIS, Circuit Judge:

     The court having been polled at the request of one of the

members of the court and a majority of the judges who are in

regular active service not having voted in favor (Fed. R. App. P.

and 5th Cir. R. 35), the Application for Rehearing En Banc is

DENIED.     We take this opportunity, however, to expand upon our
previous discussion concerning our exercise of jurisdiction over

this appeal.

     In Johnson v. Jones, 515 U.S. 304 (1995), and Behrens v.

Pelletier, 116 S. Ct. 834 (1996), the Supreme Court recently

addressed the appealability of orders denying summary judgment on

the basis of qualified immunity.         In Johnson, the Court held that

a defendant may not appeal such an order insofar as that order

determines whether or not the summary judgment record sets forth a

“genuine” issue of fact for trial.               515 U.S. at 319-20.         In

Behrens, the respondent argued that an appeal of the district

court’s denial of summary judgment was not available under Johnson

because the district court had concluded that “[m]aterial issues of

fact remain[ed].”      116 S. Ct. at 842 (second alteration added).

The Court was quick to point out, however, that the respondent had

misread Johnson, observing that the denial of summary judgment

often includes a determination that there are controverted issues

of material fact and that “Johnson surely does not mean that every

such denial of summary judgment is nonappealable.”                Id.   Rather,

the Court explained, “Johnson held, simply, that determinations of

evidentiary sufficiency at summary judgment are not immediately

appealable   merely    because    they   arise    in   a   qualified-immunity

case[.]”     Id.    The Court then held that “Johnson permits a

defendant to claim on appeal that all of the conduct which the

district   court   deemed     sufficiently   supported      for   purposes   of

summary    judgment”    was    objectively       reasonable,      and   further

instructed that where the district court has not identified the


                                     2
particular charged conduct that it deemed adequately supported,

“Johnson recognizes that under such circumstances ‘a court of

appeals may have to undertake a cumbersome review of the record to

determine   what   facts    the    district    court,   in   the    light   most

favorable to the nonmoving party, likely assumed.’”                Id. (quoting

Johnson, 515 U.S. at 319).

      We believe that the key to understanding Johnson and Behrens

rests on the recognition that when a district court denies a motion

for summary judgment on the ground that “genuine issues of material

fact remain,” the court has made two distinct legal conclusions.

First, the court has concluded that the issues of fact in question

are   genuine,   i.e.,     the    evidence    is   sufficient   to    permit   a

reasonable factfinder to return a verdict for the nonmoving party.

See Ginsberg 1985 Real Estate Partnership v. Cadle Co., 39 F.3d

528, 531 (5th Cir. 1994) (defining “genuineness”).                 Second, the

court has concluded that the issues of fact are material, i.e.,

resolution of the issues might affect the outcome of the suit under

governing law.     See id. (defining “materiality”).

      Johnson makes clear that an appellate court may not review a

district court’s determination that the issues of fact in question

are genuine. As the Court explained in Behrens, “determinations of

evidentiary sufficiency at summary judgment are not immediately

appealable merely because they happen to arise in a qualified-

immunity case; if what is at issue in the sufficiency determination

is nothing more than whether the evidence could support a finding

that particular conduct occurred, the question decided is not truly


                                       3
‘separable’ from the plaintiff’s claim, and hence there is no

‘final decision’ under Cohen and Mitchell.”1              116 S. Ct. at 842.

Behrens, on the other hand, makes clear that an appellate court is

free to review a district court’s determination that the issues of

fact in question are material.

     By way of illustration, take, for example, a § 1983 case where

the plaintiff alleges that the defendant police officer shot him

and the defendant alleges that he merely beat the plaintiff with

his baton.       The district court denies the defendant’s motion for

summary judgment on the ground that a genuine issue of material

fact exists as to what type of weapon was involved.                The defendant

might    argue    on   appeal   that    the   district   court    erred     in   two

respects.        First,   he    might    argue   that    the     district    court

erroneously concluded that a genuine issue of fact exists, i.e.,

that the plaintiff presented insufficient evidence from which a

reasonable juror could conclude that the defendant shot him rather

than merely hit him with a baton.              Under Johnson, the appellate

court could not consider this argument on interlocutory appeal.

     Second, the defendant might argue that the district court

erroneously concluded that a material issue of fact exists, i.e.,

     1
          In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949), the Court held that orders “which finally determine
claims of right separable from, and collateral to, rights asserted
in [an] action, too important to be denied review and too
independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated,” are
“final decisions” under 28 U.S.C. § 1291. In Mitchell v. Forsyth,
472 U.S. 511, 528 (1985), the Court held that a district court’s
order denying a defendant’s motion for summary judgment on the
basis of qualified immunity, to the extent it turns on an issue of
law, is appealable under Cohen.

                                         4
that regardless of whether he shot the plaintiff or hit him with a

baton his actions did not constitute excessive force.                Under

Behrens, the appellate court could consider this             argument on

interlocutory appeal.

      When the district court denies a motion for summary judgment

and merely states that “genuine issues of material fact remain”

without    identifying   those    issues,      application      of     the

Johnson/Behrens rule becomes significantly more problematic.            On

interlocutory appeal, the defendant will argue that the factual

issues the district court has found in dispute are immaterial.          In

doing so, the defendant will doubtless set forth a factual scenario

that he claims is the scenario supported by the summary judgment

evidence viewed in the light most favorable to the plaintiff.           He

will then proceed to argue that, even under this factual scenario,

he is entitled to qualified immunity. Without a statement from the

district court as to which particular issues of fact it found in

dispute, however, it will be impossible for the appellate court to

determine whether the defendant’s version of the facts viewed in

the light most favorable to the plaintiff mirrors the district

court’s version of the facts viewed in the light most favorable to

the   plaintiff.    If   the   appellate    court   cannot    make    this

determination, then it will be unable to conclude whether the

defendant is properly challenging the materiality of the factual

issues the district court determined to be in dispute or whether

the defendant is in effect improperly challenging the genuineness

of those issues.   Only if the defendant is challenging the former


                                  5
will the appellate court have jurisdiction over the defendant’s

appeal.     Accordingly, the Supreme Court has instructed that under

such circumstances “the court of appeals may have to undertake a

cumbersome    review    of   the   record   to   determine   what   facts   the

district court, in the light most favorable to the nonmoving party,

likely assumed.”       Behrens, 116 S. Ct. at 842.

        In other words, where the district court does not identify

those factual issues as to which it believes genuine disputes

remain, an appellate court is permitted to go behind the district

court’s determination and conduct an analysis of the summary

judgment record to determine what issues of fact the district court

probably considered genuine.         The appellate court is permitted to

do so in order to ensure that the defendant’s right to an immediate

appeal on the issue of materiality is not defeated solely on

account of the district court’s failure to articulate its reasons

for denying summary judgment.

        In this case, the district court in denying summary judgment

did more than state that “genuine issues of material fact remain.”

To wit, the district court stated that it found genuine issues of

fact remained as to “what information Trooper Barnhart possessed

immediately prior to and at the moment he fired the three shots at

[Colston.]”2 Although the court’s statement certainly narrowed the

    2
          The district court also stated that it found that genuine
issues of fact remained as to “whether Officer Barnhart had a
reasonable belief of danger from the fleeing [Colston] which would
justify the use of deadly force in self-defense.” The district
court’s   statement,   however,   merely   recasts  the   ultimate
determination in this case -- whether Barnhart’s behavior was
objectively reasonable under the Fourth Amendment.            That

                                       6
field of facts that it might conceivably have found to be at issue,

it still lacked sufficient specificity to permit us to determine

whether we had jurisdiction over Barnhart’s appeal and whether the

district court may have concluded that there were genuine disputes

as to facts that were actually immaterial.3                  By contrast, if the

district court had made a more specific statement such as “summary

judgment is denied because a genuine issue of fact exists as to

whether   it   would    have    appeared      to    a     reasonable   officer   in

Barnhart’s position that Colston was running in the direction of

the   patrol   car,”     we    would   have        been    able   to   make    these

determinations.    We believe it unwise to attempt to articulate a

test for the degree of specificity with which a district court must

identify genuine issues of fact for these purposes. It must depend

on the district court’s explanation of the nature of the factual

dispute   in   light    of    the   summary    judgment       evidence    in   each

particular case.       In this case the district court’s statement was


determination is a question of law. See United States v. Wilson,
36 F.3d 1298, 1303 (5th Cir. 1993); United States v. Rich, 992 F.2d
502, 505 (5th Cir. 1993).
      3
          For instance, the district court might have concluded
that there was a genuine issue of fact as to whether it would have
appeared to a reasonable officer in Barnhart’s position that
Colston had seriously injured the other officer on the scene, thus
justifying the use of deadly force. See Tennessee v. Garner, 471
U.S. 1, 11 (1985) (use of deadly force to prevent escape
justifiable where officer has probable cause to believe suspect has
committed crime involving the infliction of serious physical harm).
If the undisputed facts showed that Colston was threatening
Barnhart with serious bodily harm, thus justifying the use of
deadly force, then it would be immaterial whether it would have
appeared to a reasonable officer in Barnhart’s position that
Colston had seriously injured the other officer on the scene. See
id. (use of deadly force to prevent escape justifiable where
suspect threatens officer with serious physical harm).

                                       7
not sufficiently specific. This lack of specificity required us to

undertake a review of the record to determine whether we had

jurisdiction over Barnhart’s appeal.     As our majority opinion

reflects, we conducted this review, and because we determined that

Barnhart’s version of the facts mirrored the version of the facts

that we determined the district court likely assumed, we concluded

that Barnhart was properly challenging the materiality of the

factual issues the district court believed in dispute and that we

therefore possessed jurisdiction over his appeal.   On the merits,

we concluded that Barnhart was entitled to qualified immunity.



ENDRECORD




                                8
DeMOSS, Circuit Judge, dissenting from order on application for

rehearing en banc.




     While the majority is correct in stating that “a majority of

the judges who are in regular active service [have not] voted in

favor” of rehearing en banc, Order on Reh’g, supra, at 1, it is

more accurate and informative to state that the Court divided

equally, eight to eight, on the motion for rehearing en banc.   That

tie vote is reflective of the difficulty which the judges of this

Court have in reading and interpreting the decisions of the Supreme

Court in Johnson v. Jones, 515 U.S. 304, 115 S. Ct. 2151 (1995),

and Behrens v. Pelletier, 516 U.S. 299, 116 S. Ct. 834 (1996), as

they speak to the core question involved in this appeal: do we have

appellate jurisdiction to review the district court’s denial of

summary judgment sought on the grounds of qualified immunity?

     This case presents serious issues concerning our appellate

jurisdiction in cases involving the denial of summary judgment on

the grounds of qualified immunity.   I express the following views

in the hopes that they may help to attract the Supreme Court’s

attention to the increasingly complex panorama of doctrine and

dissent that has evolved as the courts of appeals have struggled to

reconcile the holdings of Johnson and Behrens.

     In light of the tie vote on whether to reconsider this case en

banc, the panel opinion published at 130 F.3d 96 still stands as

the opinion of this Court.   I write now to expand on the dissent


                                9
which I filed in the panel opinion, just as the majority expands on

its original majority opinion.            In Part I, I elaborate on the

reasons which I first mentioned in my panel dissent as to why this

Court does not have appellate jurisdiction over this controversy.

In Part II, I respond to the new theory proposed by the majority in

this order on rehearing as to how our Court does have appellate

jurisdiction.      Finally, in Part III, I explain how the majority’s

approach to the problem presented in this case is at odds with the

Supreme Court’s guidance regarding the competing policies behind

the   availability      of   both   a     remedy    for   deprivations       of

constitutional rights under the color of state law and a qualified

immunity for government officials who have violated citizens’

rights in the course of executing their official duties.



                                     I.

A.    Our appellate jurisdiction to review “final decisions,” 28

      U.S.C. § 1291, does not encompass collateral orders to the

      extent   that   they   implicate     the   substantive   merits   of   a

      complaint.



      The original panel opinion reversed the district court’s

considered judgment that fact issues precluded summary judgment on

the merits; and it dismissed the case based on its appellate

determination that Trooper Bryan Barnhart acted in an “objectively

reasonable” fashion when he shot Lorenzo Colston twice in the back.

Appellate jurisdiction to make this judgment was, however, lacking.


                                    -10-
                                     10
A    straightforward   application    of    the   authorities   relevant   to

exercising interlocutory appellate jurisdiction reveals that we may

not review the objective reasonableness of Trooper Barnhart’s

conduct on appeal from the district court’s denial of his motion

for summary judgment.     This is so primarily because applying that

standard for determining whether Colston’s Fourth Amendment rights

were violated, set forth in Graham v. Connor, 490 U.S. 386, 395,

109 S. Ct. 1865, 1871 (1989), is not, as Supreme Court precedent

requires, separable from the merits of the controversy.



1.     The collateral-order doctrine governs the review of qualified-

       immunity appeals from denial of summary judgment.



       Appellate jurisdiction over interlocutory appeals from denials

of summary judgment based on qualified immunity rests on three

essential legal principles, as delineated by the Supreme Court in

Johnson.    See Johnson, 515 U.S. at 309-13, 115 S. Ct. at 2154-56.

First, 28 U.S.C. § 1291, the only possible statutory basis for

appellate jursidiction in this case, provides that we may review

only “final decisions” of a district court.           Second, courts use a

practical application of § 1291 to allow interlocutory review of

certain orders which are considered final only because they are

collateral to the core of the case.         See Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 69 S. Ct. 1221 (1949).           “To come within

the ‘small class’ of . . . Cohen, the order must [1] conclusively

determine the disputed question, [2] resolve an important issue


                                     -11-
                                      11
completely separate from the merits of the action, and [3] be

effectively unreviewable on appeal from a final judgment.”                    Puerto

Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,

144-45, 113 S. Ct. 684, 688 (1993) (quoting Coopers & Lybrand v.

Livesay, 437 U.S. 463, 468, 98 S. Ct. 2454, 2458 (1978) (footnote

omitted))    (internal       quotation    marks    omitted,       alterations     in

original).      Third, as an application of the collateral-order

doctrine, interlocutory appeals from the denial of summary judgment

have been permitted in the qualified-immunity context for the

purpose of resolving the abstract legal question of whether the

lawlessness    of    a     defendant’s   alleged     acts    had    been     clearly

established at the time of their commission.                      See Mitchell v.

Forsyth, 472 U.S. 511, 525, 105 S. Ct. 2806, 2814-15 (1985).



2.    The collateral-order doctrine does not apply in this case

      because the “objective reasonableness” of Trooper Barnhart’s

      conduct is not separable from the merits of the controversy.



      An interlocutory appeal from the denial of summary judgment in

the qualified-immunity context is simply an application of the

collateral-order doctrine.         This much is clear from Johnson, in

which the Supreme Court found no appellate jurisdiction to review

the   district       court’s    fact-based        sufficiency-of-the-evidence

determination that the defendants were not entitled to summary

judgment     based    on    qualified     immunity.         The    Johnson     Court

specifically distinguished its decision from the Court’s earlier


                                        -12-
                                         12
treatment    of   the   clearly-established-law     prong      of   qualified-

immunity analysis in Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct.

2806 (1985).      See Johnson, 515 U.S. at 314, 115 S. Ct. at 2157.

Disputes over the application of the clearly-established-law prong

of the qualified-immunity inquiry are separable from the merits of

a controversy because “‘[a]n appellate court reviewing the denial

of   the   defendant’s   claim   of    immunity   need   not    consider   the

correctness of the plaintiff’s version of the facts.’”              Id. at 313,

115 S. Ct. at 2156 (quoting Mitchell, 472 U.S. at 528, 105 S. Ct.

at 2816) (alteration in original).4

      Trooper Barnhart’s contention here on appeal -- that his

conduct was objectively reasonable and therefore Colston’s suit

should be dismissed -- is not reviewable precisely because it does

not, as the doctrine of collateral orders requires, “resolve an

important issue completely separate from the merits of the action.”

Puerto Rico Aqueduct, 506 U.S. at 144-45, 113 S. Ct. at 688;

Coopers & Lybrand, 437 U.S. at 468, 98 S. Ct. at 2458.                 Johnson

elaborated on the separability inquiry, noting that

            The requirement that the matter be separate from

            the merits of the action itself means that review

      4
          In the present case, there is no dispute over the
distinct and separate legal issue of whether the law had been
clearly established in this case. There is no doubt that Colston’s
constitutional right under the Fourth Amendment to be free from
Trooper Barnhart’s use of unreasonable and excessive force arising
out of this police stop was clearly established long before the
circumstances involved in this case occurred. The panel majority
opinion explicitly recognizes both that this constitutional right
was clearly established and that Colston appropriately alleged a
violation of his constitutional rights in this § 1983 action. See
Colston, 130 F.3d at 99.

                                      -13-
                                       13
             now is less likely to force the appellate court to

             consider approximately the same (or a very similar)

             matter more than once, and also seems less likely

             to    delay   trial      court    proceedings     (for,      if   the

             matter is truly collateral, those proceedings might

             continue while the appeal is pending).



Johnson, 515 U.S. at 311, 115 S. Ct. at 2155 (citing CHARLES ALAN

WRIGHT   ET AL.,   FEDERAL PRACTICE   AND   PROCEDURE § 3911, at 333-34 (2d ed.

1992)) (emphasis in original).

     Though the matter does not require elaborate exposition,

Trooper     Barnhart’s     argument         that   his   conduct    was   objectively

reasonable plainly does not meet this standard.                    Rather than being

a   separate,         distinct,       collateral         issue,     the        objective

reasonableness of Trooper Barnhart’s actions is in fact the precise

issue that would have been presented to the jury if Colston’s suit

had gone to trial.         Should there have been an eventual appeal from

a final judgment on the merits of Colston’s claims, our Court would

have been confronted with the exact same issue.                    And to top it all

off, in this case the true hallmark of a collateral order -- the

continuation of trial proceedings while the appeal progressed                        --

has not occurred.           As is now apparent, it would have been a

complete waste of time for the district court and the court of

appeals to simultaneously adjudicate the objective reasonableness

of shooting Colston twice in the back as he fled the scene.




                                            -14-
                                             14
      The panel majority does not contend, because they could not

possibly     establish,     that     their     review       of    the   objective

reasonableness of Trooper Barnhart’s arrest technique is separable

from the merits of Colston’s complaint.                 That single factor is

completely determinative of the absence of appellate jurisdiction

over Trooper Barnhart’s appeal.



3.    The panel majority’s approach impermissibly engages in case-

      specific factual analysis to determine appealability.



      As a final matter concerning the panel majority’s implicit

determination that the district court’s denial of summary judgment

was   an   appealable     collateral       order,   I   note     that   the   panel

majority’s treatment of this issue is utterly inconsistent with the

yet another principle of the Cohen doctrine.                     Both Johnson and

Behrens     acknowledge     that     courts    “decide      appealability       for

categories of orders rather than rather than individual orders,”

Johnson, 115 S. Ct. at 2157 (citing Digital Equip. Corp. v. Desktop

Direct, Inc., 511 U.S. 863, 863, 114 S. Ct. 1992, 1993 (1994)

(syllabus)), and “‘[a]ppeal rights cannot depend on the facts of a

particular case,’” Behrens, 116 S. Ct. at 841 (quoting Carroll v.

United States, 354 U.S. 394, 405, 77 S. Ct. 1332, 1339 (1957), and

citing Digital Equip., 511 U.S. at 868, 114 S. Ct. at 1996).

“[T]he issue of appealability under § 1291 is to be determined for

the entire category to which a claim belongs, without regard to the

chance     that   the   litigation    at    hand    might   be    speeded,    or   a


                                      -15-
                                       15
‘particular    injustic[e]’    averted     by   a   prompt   appellate   court

decision.”    Digital Equip., 511 U.S. at 868, 114 S. Ct. at 1996

(quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 529, 108 S. Ct.

1945, 1953 (1988)) (alteration in original, internal citation

omitted).

     The    majority’s   approach   to     determining   the   propriety   of

interlocutory appellate jurisdiction violates this principle in

spectacular fashion.     The panel admits that its approach required

it to “undertake a review of the record to determine whether we had

jurisdiction over Trooper Barnhart’s appeal.”                Order on Reh’g,

supra., at 8.    But what did the panel expect to find in the record

other than facts?    “Appeal rights cannot depend on the facts of a

particular case.”    Behrens, 116 S. Ct. at 841 (internal quotation

marks omitted, emphasis supplied).

     The error of the panel opinion’s approach is evident. Neither

Johnson nor Behrens contemplates a “cumbersome review of the

record” for the threshold purpose of determining whether there is

appellate jurisdiction.       It is, rather, only a suggestion for how

to proceed on determining whether the plaintiff alleged a violation

of then-clearly-established law after appellate jurisdiction has

already been determined.

     To conclude, there is one, primary, eminently simple reason

why interlocutory appeal was unavailable to Trooper Barnhart.               In

order for us to proceed under § 1291, there must be a final order.

In the absence of a final judgment, the elements of the collateral-

order doctrine must be satisfied to permit appeal under that


                                    -16-
                                     16
statute.    One of those elements is separability of the appealed

order from the ultimate merits of the controversy, and that element

is simply not present in this case.         Moreover, the panel majority

impermissibly tailors its jurisdictional analysis to the facts of

the case.    The collateral-order doctrine cannot be stretched to

establish appellate jurisdiction in this case, and the appeal

should have been dismissed.



B.   Behrens v. Pelletier does not create an exception to the

     collateral-order doctrine’s separability requirement.



     The above reasoning notwithstanding, the majority relies upon

language    in   Behrens   to   support    its   assumption   of   appellate

jurisdiction.     Seven months after it decided Johnson, the Supreme

Court handed down its decision in Behrens.          After disposing of the

primary issue in the case,5 the Court went on to address two

additional grounds upon which the respondent in that case argued

that interlocutory appeal was not available. The discussion of the

second of these two issues, which involved some elaboration on the

holding in Johnson, is the source of much of the confusion which

now exists in our Court and in other courts of appeals as to the

     5
          The Supreme Court granted certiorari in Behrens to
evaluate the Ninth Circuit’s rule that there can be only one
interlocutory appeal on the issue of qualified immunity. The Court
rejected that rule, holding that the mere fact that the public
official in Behrens had already appealed the trial court’s denial
of his motion to dismiss under FED. R. CIV. P. 12(b)(6) did not
preclude a further appeal when the trial court denied his motion
for summary judgment on the grounds of qualified immunity. See
Behrens, 116 S. Ct. at 840.

                                    -17-
                                     17
impact and effect of Behrens on Johnson.              See, e.g., Hart v.

O’Brien, 127 F.3d 424 (5th Cir. 1997); Elliott v. Leavitt, 99 F.3d

640 (4th Cir. 1996), reh’g en banc denied 7-5 with opinions, 105

F.3d 174 (4th Cir.), cert. denied, 117 S. Ct. 2512 (1997).

       The relevant discussion in Behrens begins by identifying and

reaffirming the basic distinction that Johnson draws as to the

appealability of a district court’s decisions on “issues of law”

and the nonappealability of those decisions on “issues of fact.”

See Behrens, 516 U.S. at 838-39, 116 S. Ct. at 305-06; Johnson, 515

U.S.   313-18,   115   S.   Ct.   at   2156-58.    Behrens     confirms   that

interlocutory appeal is not available when the trial court relies

upon the existence of genuine factual disputes to deny summary

judgment.    See Behrens, 516 U.S. at 842, 116 S. Ct. at 313.             Such

disputes, Behrens reasons, are not collateral orders under the

Cohen doctrine because they are not “truly separable” from the

plaintiff’s claim.      See supra Part I.A.2. above.            When, on the

other hand, the district court’s denial is based solely upon “an

‘abstract    issu[e]   of   law’   related    to   qualified    immunity   --

typically, the issue whether the federal right allegedly infringed

was ‘clearly established,’” then the issue to be addressed on

appeal is sufficiently distinct from the plaintiff’s claim to

support interlocutory appeal.          Id. (quoting Johnson, 515 U.S. at

317, 115 S. Ct. at 2158) (internal citations omitted, alterations

in original).    On these points, Behrens and Johnson are in perfect

agreement.




                                       -18-
                                        18
     The   confusion    is    created     by     the    following        passage    from

Behrens:

                 Here     the       District         Court’s       denial      of

           petitioner’s       summary-judgment          motion     necessarily

           determined     that      certain      conduct        attributed     to

           petitioner (which was controverted) constituted a

           violation     of    clearly    established           law.      Johnson

           permits petitioner to claim on appeal that all of

           the   conduct       which     the     District        Court     deemed

           sufficiently       supported        for   purposes      of     summary

           judgment met the Harlow [v. Fitzgerald, 457 U.S.

           800, 102 S. Ct. 2727 (1982)] standard of “objective

           legal reasonableness.”          This argument was presented

           by petitioner in the trial court, and there is no

           apparent impediment to its being raised on appeal.

           And   while        the    District          Court,     in      denying

           petitioner’s       summary-judgment           motion,        did   not

           identify the particular charged conduct that it

           deemed   adequately         supported,       Johnson        recognizes

           that under such circumstances “a court of appeals

           may have to undertake a cumbersome review of the

           record to determine what facts the district court,

           in the light most favorable to the nonmoving party,

           likely assumed.”         Johnson, [515 U.S. at 319], 115

           S. Ct., at 2159.         That is the task now facing the

           Court of Appeals in this case.


                                       -19-
                                        19
Behrens, 516 U.S. at 313, 116 S. Ct. at 842.6



1.   Behrens v. Pelletier refers only to determining “objective
     legal reasonableness” for qualified-immunity purposes under
     Harlow v. Fitzgerald -- not other semantically similar merits-
     bound inquiries.

     The second sentence of the above-quoted paragraph is where the

ambiguities and uncertainties first arise.7     The original panel

opinion applies this sentence as if it gives Trooper Barnhart, who

invoked qualified immunity, a license to seek interlocutory review

of the denial of his summary judgment motion on the ground that,

assuming the truth of whatever allegations Colston made, Trooper


     6
          The first sentence of this paragraph points out that by
denying summary judgment the trial court implicitly ruled that if
the conduct giving rise to the lawsuit was what was alleged in the
complaint, it violated clearly established law. This makes sense
because if a trial court were to determine that the pertinent law
was not clearly established at the time of the defendant’s conduct,
the trial court would grant the defendant’s motion for summary
judgment on qualified immunity, not deny it. See, e.g., Winfield
v. Bass, 106 F.3d 525, 529 (4th Cir. 1997) (en banc).          That
inherent determination is immediately appealable even when, as in
Behrens, the district court may also have noted the existence of
nonappealable factual disputes. See, e.g., id. at 529-30.
     7
          I note that after generally tracking the language of
Johnson, this is where the Behrens opinion departs from previously-
familiar territory.     The semantic switch from discussing the
typical qualified-immunity issue of “clearly established law” to a
hypothetical (in Behrens) issue of “objective legal reasonableness”
creates many of the problems that are now plaguing the courts of
appeals.

     Neither the phrase “deemed sufficiently supported” nor the
phrase “objective legal reasonableness” appear anywhere in the
Johnson opinion. Moreover, Harlow is cited only once in Johnson.
See Johnson, 515 U.S. at 311, 115 S. Ct. at 2155 (citing Harlow,
457 U.S. at 818, 102 S. Ct. at 2738).      Neither the portion of
Johnson that cites Harlow nor the portion of Harlow which is cited
in Johnson has anything to do with determining what the trial court
found or did not find in its order denying summary judgment.

                               -20-
                                20
Barnhart’s conduct nevertheless met the Graham standard of being

objectively reasonable.

       The majority erred when it construed Behrens in that manner.

Such a reading is not supported by Behrens, which refers to “the

Harlow standard of ‘objective legal reasonableness.’” Behrens, 516

U.S. at 313, 116 S. Ct. at 842.           Despite the Harlow standard’s

semantic similarity to Graham’s “objectively reasonable” test, that

prong of Harlow’s qualified-immunity inquiry is different and

functionally distinct from the merits-bound Graham inquiry.             The

construction in the original panel opinion thus distorts a single

isolated sentence to create a direct conflict with Johnson and with

the logical analysis and reasoning in Behrens itself.



a.     The function of Harlow v. Fitzgerald’s “objective legal
       reasonableness” qualified-immunity standard makes it a proper
       subject for interlocutory review.

       Proper application of the “objective legal reasonableness”

standard established in Harlow does not establish whether the

conduct in question violated the law per se.      Harlow’s reference to

“objective legal reasonableness” speaks only to a facet of whether

the plaintiff alleged a violation of “clearly established statutory

or constitutional rights of which a reasonable person would have

known” at the time an action occurred.         Harlow, 457 U.S. at 818,

102 S. Ct. at 2738.     When the law was clearly established, Harlow

instructs that “the immunity defense ordinarily should fail, since

a    reasonably   competent   public   official   should   know   the   law

governing his conduct.”       Id. at 818-19, 102 S. Ct. at 2738.


                                   -21-
                                    21
     If the summary-judgment proof is sufficient to raise a genuine

issue of material fact, a motion for summary judgment on the

grounds of qualified immunity should be denied and the matter

should be developed fully at trial.8    See FED. R. CIV. P. 56(c).   The

primary task of an appellate court in an ordinary interlocutory

qualified-immunity appeal from the denial of a motion for summary

judgment is to address the abstract legal question of whether the

law under which the plaintiff seeks relief was clearly established

at the time of the official’s conduct.      See, e.g., Mitchell, 472

U.S. at 528, 105 S. Ct. at 2815.       If it was, the case should be

remanded and the injured citizen should be given the opportunity to

prove that the official’s conduct did in fact violate the law and

did in fact produce the injury.

     It is possible, of course, that the injured citizen might not

prevail at trial.   But if the law involved at the time of the

     8
            In this regard the Supreme Court also said:

                    By defining the limits of qualified
                    immunity essentially in objective
                    terms, we provide no license to
                    lawless   conduct.       The    public
                    interest in deterrence of unlawful
                    conduct and in compensation of
                    victims remains protected by a test
                    that focuses on the objective legal
                    reasonableness of an official’s
                    acts.   Where an official could be
                    expected   to   know   that    certain
                    conduct would violate statutory or
                    constitutional rights, he should be
                    made to hesitate; and a person who
                    suffers   injury   caused    by   such
                    conduct may have a cause of action.

Id. at 2739; see also Crawford-El v. Britton, 118 S. Ct. 1584, 1593
(1998).

                               -22-
                                22
conduct was clear and if the injured citizen presents sufficient

proof at summary judgment to persuade the district court that a

jury verdict for the injured citizen could be sustained, then the

public official must bear the risk of trial just like any other

civil defendant.       See generally infra Part III.            The policy --

embodied   by   the   judge-made   qualified-immunity      doctrine     --   of

protecting   public    officials   from    frivolous   claims     based   upon

ambiguous concepts of the law must under these circumstances yield

to another public policy -- dictated by Congress and embodied in 42

U.S.C. § 1983 -- of protecting citizens from damage and injury

caused by the conduct of public officials which violates clearly

established constitutional principles. Cf. Crawford-El v. Britton,

118 S. Ct. 1584, 1594-96 (1998).



b.   The function of Graham v. Connor’s “objectively reasonable”
     substantive excessive-force standard makes it an improper
     subject for interlocutory review.

     Instead    of    reading   Johnson    and   Behrens   in   their   proper

context, the majority misreads the Behrens reference to “the Harlow

standard of objective legal reasonableness” (which is closely

related to the determination of whether the law was “clearly

established” at any given time) to be interchangeable with the

“objectively reasonable” test established in Graham.               The Graham

standard -- the proper test for evaluating the merits of Colston’s

claim9 -- is used to determine whether an officer’s conduct was

     9
          See Graham, 490 U.S. at 396-97, 109 S. Ct. at 1871-72.
Of course, in Colston’s case the proper application of the Graham
standard is informed by the Supreme Court’s observations about the

                                    -23-
                                     23
“excessive” such that it would violate the Fourth Amendment’s

prohibition    against   unreasonable    seizures,   but   not   to   decide

matters of qualified immunity.

     This confusion was aptly demonstrated in several parts of the

original majority opinion.      At one point, the majority asserted:

“We therefore have interlocutory jurisdiction to determine the

legal issue of whether Trooper Barnhart’s conduct was objectively

reasonable.”    Colston, 130 F.3d at 98-99.      In characterizing the

issue of “whether Barnhart’s conduct was objectively reasonable” as

a “legal issue” subject to interlocutory appeal, the majority cited

Mitchell, Johnson, and Behrens.     See id.    All of those cited cases

deal with the issue of qualified immunity; none of them address in

any way the question of whether, on the merits, a defendant

official’s conduct was “objectively reasonable.”           Elsewhere, the

majority claimed:

          In Graham v. Connor the Supreme Court explained
          that the reasonableness inquiry in an excessive
          force case is an objective one; evaluating the
          officer’s conduct under the Fourth Amendment we
          must balance the amount of force used against the
          need for that force with reference to clearly
          established law at the time of the conduct in
          question.

Id. at 99 (internal citations omitted, emphasis supplied). But the

problem with this quotation is that the italicized phrase requiring




Fourth Amendment’s restrictions on the use of deadly force. See
generally Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694 (1985).

                                  -24-
                                   24
reference to clearly-established law does not appear anywhere in

the text of Graham.10

     The majority’s approach is mistaken not only because it

misreads Behrens, but more fundamentally because it results in the

core substantive issue in a case being reviewed as a collateral

order.    As discussed supra, the Cohen doctrine’s separability

requirement forbids this result.      The district court in this case

identified two genuine and material issues of fact related to the

objective reasonableness of Trooper Barnhart’s actions.            These

factual   issues   do    not   preclude   evaluating   --   as   plainly

contemplated by Behrens -- whether Trooper Barnhart’s actions


    10
          This is not surprising because Graham did not involve any
claim of qualified immunity at all, see Graham, 490 U.S. at 399
n.12, 109 S. Ct. at 1873 n.12, and the case was actually tried
before a jury in the district court. Rather, Graham concerned the
questions of which constitutional provision protects a citizen from
excessive force during arrest and how to define the criteria for
measuring whether the force used to effect a particular seizure was
reasonable or unreasonable under the Fourth Amendment. In this
latter regard the Supreme Court in Graham held:

                        Because      “[t]he      test     of
                        reasonableness under the Fourth
                        Amendment is not capable of precise
                        definition or mechanical operation,”
                        its proper application requires
                        careful attention to the facts and
                        circumstances of each particular
                        case, including the severity of the
                        crime at issue, whether the suspect
                        poses an immediate threat to the
                        safety of the officers or others,
                        and whether he is actively resisting
                        arrest or attempting to evade arrest
                        by flight.

Graham, 490 U.S. at 396, 109 S. Ct. at 1872 (alterations in
original, internal citation omitted) (citing Garner, 471 U.S. at 8-
9, 105 S. Ct. at 1699-1700).

                                  -25-
                                   25
satisfy the “Harlow standard of objective legal reasonableness,”

which is a legal test relating to the legal determination of

whether or not the law was clearly established at any given time.

But when the proper Supreme Court precedents are utilized, the

question of whether a police officer used excessive force in

arresting a citizen is a question which cannot be answered without

making factual determinations on the basis of the evidence and

testimony in the individual case.   Which is as it should be.   As is

suggested by the district court’s denial of summary judgment, the

factual record simply has not been sufficiently developed to permit

judgment as a matter of law.     Consequently, the panel majority

erred in determining that our Court had interlocutory jurisdiction

to address the merits of the ultimate factual dispute as to whether

under all of the circumstances Trooper Barnhart’s use of deadly

force by shooting Colston twice in the back was or was not

excessive.



2.   Behrens v. Pelletier refers to “a cumbersome review of the
     record” for the sole purpose of establishing a universe of
     facts used to     answer abstract legal issues related to
     qualified immunity -- not other merits-bound purposes.

     Another stumbling block in the infamous Behrens passage is the

now-oft-quoted reference to circumstances, recognized by Johnson,

in which “a court of appeals may have to undertake a cumbersome

review of the record to determine what facts the district court, in

the light most favorable to the non-moving party, likely assumed.”

Behrens, 516 U.S. at 313, 116 S. Ct. at 842; Johnson, 515 U.S. at

319, 115 S. Ct. at 2159.   An examination of the full context of

                               -26-
                                26
this   particular    sentence   from   Johnson   resolves   any   perceived

ambiguities between the language of Johnson and the language of

Behrens.

       This Johnson sentence was prompted by, and was intended to

respond to, the claim that if a district court simply denies the

motion for summary judgment without explanation, an appellate court

would be unable to determine whether the district court’s decision

was based upon fact-based issues that may not be immediately

appealed or abstract legal issues that may be immediately appealed.

See Johnson, 515 U.S. at 319, 115 S. Ct. at 2159. The Court

rejected that claim, stating that the problem was not serious

enough     to   require   a   rule   making   fact-based    determinations

appealable.     See id.   The Court then concluded that “[w]hen faced

with an argument that the district court mistakenly identified

clearly established law, the court of appeals can simply take, as

given, the facts that the district court assumed when it denied

summary judgment for that (purely legal) reason.”           Id.

       Thus Johnson, by its own terms, speaks of a “cumbersome review

of the record” only in circumstances in which (1) the district

court denied summary judgment without indicating its reasons for

doing so, (2) there is a “given set of facts,” in other words,

facts which the parties have stipulated or which are undisputed,

and (3) the appellate court is faced with a contention “that the

district court mistakenly identified clearly established law.”




                                     -27-
                                      27
None of these circumstances existed in Johnson, and none exist here

in this case.11   See id.

     The   language   used   in   Behrens    was   appropriate   to   the

circumstances involved in that case.12      The Supreme Court concluded

     11
          It is also important to note that both Johnson and
Colston’s complaint deal with the Fourth Amendment right to be free
from unreasonable seizures. In Behrens, on the other hand, the
plaintiff asserted that the conduct of the defendant violated his
right to procedural due process and deprived him of substantive due
process under “clearly established and Constitutionally protected
property and liberty rights . . . to specific employment and to
pursue his profession free from undue governmental influence.”
Behrens, 516 U.S. at 302, 116 S. Ct. at 837 (internal quotation
marks omitted).     In Behrens, two of the three circumstances
required by Johnson were present: the trial court simply denied the
motion for summary judgment, and the defendant asserted that his
actions had not violated any “clearly established” right of the
respondent regarding his employment. See id. at 304, 116 S. Ct. at
838.
    12
          In Behrens, Pelletier complained that Behrens, acting in
his capacity as a supervisory agent for the Federal Home Loan Bank
Board, had written a letter disapproving Pioneer Savings and Loan
Association’s request for approval of the hiring of Pelletier as
its managing officer. Id. at 302, 116 S. Ct. at 836-37. As a
result of this letter, Pioneer asked Pelletier to resign and when
he refused, fired him. Three years later, Pelletier brought suit
in federal court, charging that Behrens’s action in writing the
letter had effectively discharged him from his post at Pioneer.
Pelletier claimed that his discharge, in summary fashion and
without notice or opportunity to be heard, violated his right to
procedural due process. Id. at 302, 116 S. Ct. at 837.

     Thus, Behrens presented a serious question as to whether the
law was “clearly settled” at the time the letter was written in
1986, such that the author of such a letter could be personally
liable for the resulting discharge of respondent. Id. The trial
court denied Behrens’s summary judgment motion, implicitly finding
that if the facts alleged by Pelletier were established, there
could be a violation of clearly established law. Behrens appealed,
arguing that the law was not clearly established. Id. The court
of appeals rejected that argument, finding that it was not before
the court. Id. at 304, 116 S. Ct. at 838. On remand, the district
court again denied Behrens’s motion for summary judgment on
qualified immunity, this time with an “unadorned” statement that
material issues of fact precluded summary judgment.     Id.   When
Behrens tried to appeal again, the Ninth Circuit declined to

                                  -28-
                                   28
that the issue of whether the law was “clearly established” needed

to be addressed13 -- a “legal issue” which Johnson recognized as

being typically appealable.         See Johnson, 515 U.S. at 311, 115 S.

Ct. at 2155 (citing Mitchell, 472 U.S. at 530, 105 S. Ct. at 2817).

It is, therefore, inappropriate to conclude that Behrens in any way

overrides    the   Supreme     Court’s   clear   statement   of   the   law   in

Johnson, or that Johnson should not control our disposition in this

case.      The “cumbersome review of the record” contemplated by

Johnson and     Behrens   is    conducted   for   the   limited   purpose     of

establishing a set of facts (sufficiently supported by the evidence

for the purposes of summary judgment) that are then used to answer

the abstract legal question of whether the plaintiff has alleged a

violation of clearly-established law.            Behrens authorizes nothing

more.     It is therefore patent error for the panel majority in this

case to construe Behrens as an implicit exception to the strictures

of the collateral-order doctrine.



3.   Thus, the panel majority fundamentally misapplied Behrens v.
     Pelletier in assuming appellate jurisdiction to determine the
     objective reasonableness of Trooper Barnhart’s actions.




address the issue because of its rule prohibiting more than one
appeal on qualified immunity issues. Id.
     13
          The Ninth Circuit’s opinion on remand from the Supreme
Court confirms that there was no basis for holding that Behrens’s
conduct deprived Pelletier of any clearly established liberty or
property interest in specific employment at the time of writing the
letter. See Behrens v. Pelletier, 130 F.3d 429 (9th Cir. 1997),
modified on reh’g, No. 94-56507, 1998 WL 282816 (9th Cir. June 3,
1998).

                                     -29-
                                      29
      In   exercising      appellate     jurisdiction,      the    panel      majority

misconstrued       Behrens   in    two   key    respects.      First,         Behrens’s

reference     to     the     “Harlow      standard    of      ‘objective         legal

reasonableness,’” Behrens, 516 U.S. at 313, 116 S. Ct. at 842, must

be construed in a fashion consistent with Harlow itself. It cannot

be used to reach any other aspect of the case unrelated to

qualified immunity which the appellate court may wish to review.

There is no appellate jurisdiction to entertain an interlocutory

appeal that presents issues which are inextricably intertwined with

the merits of the plaintiff’s complaint, for to do so would violate

the collateral-order doctrine’s separability requirement.                       Second,

Behrens does not broadly authorize courts of appeals to conduct de

novo reviews of the record in interlocutory qualified-immunity

appeals.        Instead,     the    “cumbersome      review       of    the    record”

contemplated by Johnson and Pelletier refers only to the limited

review required to decide the distinct legal question of whether

the   conduct    alleged     by    the   plaintiff    violated         then-clearly-

established law.

      Because the “objective reasonableness” of the force applied by

Trooper Barnhart to arrest Colston is not an issue separable from

the merits of Colston’s complaint, it is not separable from the

merits and is therefore not subject to interlocutory appeal.                       The

majority erred by applying Behrens to achieve a contrary result.



                                         II.




                                         -30-
                                          30
     The new theory proffered by the panel majority as to how this

Court    has   appellate      jurisdiction    is   simple    --   perhaps    even

deceptively    simple.        It   postulates   that   the   decision   of    the

district court to deny summary judgment because “a genuine issue of

material fact exists” involves two fundamental decisions by the

district court: (1) there is sufficient conflict in the factual

testimony that a jury could find that the force used by Trooper

Barnhart was excessive, or, that the force used by Trooper Barnhart

was reasonable; and (2) the issue of whether the force used was

excessive or unreasonable is a material issue in the case.                   The

first of these issues is obviously factual and the second issue is

essentially     legal    in    nature.       Therefore,     according   to    the

majority’s expanded theory, when the district court ruled that “a

genuine issue of material fact exists,” it necessarily made a

“legal” ruling which, under the majority’s analysis of Johnson and

Behrens, authorizes us to exercise appellate jurisdiction.

     I acknowledge that this theory is simple, but in my view it is

simply wrong.

     The panel majority’s use of the genuineness-or-materiality

distinction is simply not a useful theory of appealability.                   The

trouble is that the analysis makes every denial of summary judgment

appealable.     Such an interpretation of Behrens entirely swallows

the rule in Johnson, and is therefore unacceptable.

     When ruling on a motion for summary judgment, a district court

must consider the materiality of the factual disputes before the

court.   See FED. R. CIV. P. 56(c).       If the district court concludes


                                      -31-
                                       31
that the only genuinely disputed facts are not material, the

district court would grant summary judgment, and that would be an

appealable final decision.          But what happens when a motion for

summary judgment is denied?          According to the panel majority,

Behrens established that “an appellate court is free to review a

district court’s determination that the issues of fact in question

are material.”     Order on Reh’g, supra, at 4.        If that is the case,

every single denial of summary judgment is appealable because every

single denial of summary judgment embodies a “determination that

the issues of fact in question are material.”                See FED. R. CIV.

P. 56(c).    To reiterate, if the issues of fact were not material,

summary judgment would have been granted, not denied.

     Obviously this is not what Behrens intended.            The fact of the

matter is that Behrens does not say that “an appellate court is

free to review a district court’s determination that the issues of

fact in question are material,” a cold fact belied by the panel

majority’s failure to provide a citation to Behrens or any other

case to support this assertion.        See Order on Reh’g, supra, at 4.

Quite to the contrary of the panel majority’s view, Behrens does

not give the courts of appeals carte blanche to investigate whether

or not the fact issues that precluded a grant of summary judgment

were material.     What Behrens does say is that “summary judgment

determinations     are   appealable    when    they    resolve    a   dispute

concerning an ‘abstract issu[e] of law’ relating to qualified

immunity    --   typically,   the    issue   whether   the    federal   right

allegedly infringed was ‘clearly established.’”           Behrens, 516 U.S.


                                     -32-
                                      32
at 313, 116 S. Ct. at 842 (emphasis and alterations in original,

internal citations omitted).            The reference to the appealable

“abstract issu[e] of law” is an attributed quote from Johnson, an

opinion which makes unmistakably clear that the separability of the

issue is an indispensable prerequisite to interlocutory appeal.

See Johnson, 515 U.S. at 310-11, 115 S. Ct. at 2155.

     Thus, as fully discussed supra, the panel majority’s Johnson-

swallowing interpretation of Behrens does not withstand scrutiny.

No Supreme Court cases have been cited to support the primacy of

the genuineness-materiality distinction. That is because there are

none.     The proper distinction as explained in both Johnson and

Behrens     is    between      appealable      legal     determinations       and

nonappealable determinations of evidence sufficiency.             The partial

congruence that exists because genuineness relates to factual

disputes while materiality relates to the legal significance of

facts does not supplant the controlling dichotomy, which is between

law-based decisions and fact-based decisions.             Moreover, the fact

that there is a dispute about materiality tells us absolutely

nothing about the separability of that legal dispute, which was the

key factor in the Johnson Court’s determination that the district

court’s resolutions about the sufficiency of the evidence for the

purposes of qualified immunity are inseparable from the merits and

therefore are not subject to interlocutory appeal. See id. at 313-

18, 115    S.    Ct.   at   2156-58.     The   Supreme   Court   has   made   it

abundantly clear that the appropriate focus in determining our

appellate jurisdiction in interlocutory qualified-immunity appeals


                                       -33-
                                        33
is the “appropriate interpretation of § 1291.” Johnson v. Fankell,

117 S. Ct. 1800, 1807 (1997).     Genuineness and materiality are

merely incidental; they are not a controlling part of that picture.

     Instead of trying to understand the nuances that differentiate

Johnson and Behrens, the panel majority’s approach simply seeks to

articulate a theory to justify jurisdiction.    Their approach, as

explained in the new opinion on denial of rehearing, ensures that

unless the district court satisfies an undefined and therefore

wholly arbitrary standard of specificity,14 there will always be

grounds for the appellate court to conduct a roving review of the

record to investigate possible grounds for appellate jurisdiction.

And, once that step has been taken, the grounds for exercising



     14
          I pause here to note not only that the district court
stated the grounds for denying summary judgment with all due
specificity for the purposes of our determining appellate
jurisdiction, but also that the panel majority knew full well what
factual disputes led the district court to this decision.

     The district court’s Memorandum and Order stated that the
court was denying Trooper Barnhart’s motion for summary judgment
because it found “that issues of material fact exist which preclude
summary judgment.” The court further stated:

                    Among these factual disputes are
                    what information Trooper Barnhart
                    possessed immediately prior to and
                    at the moment he fired the three
                    shots at the fleeing suspect and
                    whether Officer Barnhart had a
                    reasonable belief of danger from the
                    fleeing suspect which would justify
                    the use of deadly force in self-
                    defense.

The majority actually contends that this statement “lacked
sufficient specificity to permit us to determine whether we had
jurisdiction over Barnhart’s appeal.” Order on Reh’g, supra, at 7.

                                -34-
                                 34
appellate jurisdiction can be easily manufactured.15   The majority

transforms Behrens’s reference to a “cumbersome review of the

record” into an invitation to review de novo the record in all

interlocutory qualified-immunity appeals.    This is a transparent

device for creating appellate jurisdiction at the discretion of the

appellate court, and it is entirely inconsistent with the reasons

the Supreme Court gave for its decisions in Johnson and Behrens.



                               III.

     Finally, I must register my fundamental disagreement with the

panel majority’s general approach to implementing the policies

which support qualified immunity.     I support the application of

those important and necessary policies to the extent that we

maintain fidelity to the numerous Supreme Court opinions on the

subject. I cannot support, however, our Court’s steady development

of a reflexive habit of substituting appellate judgment for that of

     15
          This very case is a beautiful example.       The majority
states in amazingly conclusory fashion:

                    [B]ecause    we   determined     that
                    Barnhart’s version of the facts
                    mirrored the version of the facts
                    that we determined the district
                    court likely assumed, we concluded
                    that    Barnhart     was     properly
                    challenging the materiality of the
                    factual issues the district court
                    believed in dispute and that we
                    therefore   possessed    jurisdiction
                    over this appeal.

Id. at 8.   Considering the fact that the district court denied
summary judgment, the majority’s statement that “that Barnhart’s
version of the facts mirrored the version of the facts that we
determined the district court likely assumed” is simply incredible.

                               -35-
                                35
the district   courts   on   interlocutory   matters   in   the   name   of

protecting public officials from the burdens of litigation. As the

Supreme Court has made abundantly plain, qualified immunity in and

of itself is a substantial concession to the needs of faithful and

efficient execution of public duties.         It is not, therefore,

necessary or appropriate to contort ancillary legal doctrines (such

as the original panel opinion’s misapplication of the collateral-

order doctrine) for the purpose of terminating litigation early

when, in the judgment of the district court, genuine factual issues

remain that merit further consideration.



A.   Qualified immunity is an important policy goal which already
     embodies substantial deference to public officials.

     The Supreme Court has recently revisited and reaffirmed the

policy goals which undergird the doctrine of qualified immunity.

The first of these goals is “a strong public interest in protecting

public officials from the costs associated with the defense of

damages actions.”   Crawford-El, 118 S. Ct. at 1592-93; see Harlow,

457 U.S. at 814, 102 S. Ct. at 2736.    In addition, we are concerned

that legal process not be used to manipulate public officials

through “allegations of subjective motivation [which] might have

been used to shield baseless lawsuits from summary judgment,” so we

apply an objective standard based on the state of the law at the

time of the alleged conduct Crawford-El, 118 S. Ct. at 1593; see

Harlow, 457 U.S. at 817-18, 102 S. Ct. at 2737-38.          Last, we seek

to avoid “the unfairness of imposing liability on a defendant who

‘could not reasonably be expected to anticipate subsequent legal

                                 -36-
                                  36
developments, nor . . . fairly be said to “know” that the law

forbade conduct not previously identified as unlawful.’” Crawford-

El, 118 S. Ct. at 1593 (quoting Harlow, 457 U.S. at 818, 102 S. Ct.

at 2738); see Scheuer v. Rhodes, 416 U.S. 232, 239-40, 94 S. Ct.

1683, 1688 (1974).

     The parameters of the qualified-immunity defense have been

carefully laid out by the Supreme Court, and they represent the

full extent to which a court accommodate the above-mentioned policy

interests.   See, e.g., Imbler v. Pachtman, 424 U.S. 409, 421, 96 S.

Ct. 984, 990 (1976).



B.   The substantial policy interest in adjudicating Colston’s
     claims cannot be ignored.

     Despite our real concern about the policy interests protected

by qualified immunity, we cannot forget that our fellow citizens

also have a legitimate interest in vindicating their rights as

provided by law.     Congress has provided by statute that:

                 Every person who, under color of any statute,
            ordinance, regulation, custom, or usage, of any
            State . . . subjects, or causes to be subjected,
            any citizen of the United States or other person
            within the jurisdiction thereof to the deprivation
            of any rights, privileges, or immunities secured by
            the Constitution and laws, shall be liable to the
            party injured in an action at law, suit in equity,
            or other proper proceeding for redress . . . .

42 U.S.C. § 1983.      Qualified immunity is intended to extinguish

some legitimate claims arising under § 1983 which are frivolous or

ambiguous    in   nature,   and   that   is   a   recognized   and   accepted

consequence of applying the doctrine.             But in a case where the

plaintiff has alleged a violation of his then-clearly-established

                                    -37-
                                     37
constitutional rights and claims serious and demonstrable damages

from the official’s conduct which was not objectively reasonable,

the plaintiff should be entitled to proceed to trial so long as the

allegations are sufficiently supported by evidence to survive a

motion for summary judgment.       “[I]t is not unfair to hold liable

the official who knows or should know he is acting outside the

law.”     Butz v. Economou, 438 U.S. 478, 506, 98 S. Ct. 2894, 2911

(1978).



C.   The majority erred by tipping the scales of justice in Trooper
     Barnhart’s favor.

     The primary lesson of the recently decided case of Crawford-El

v. Britton, 118 S. Ct. 1584 (1998), is that the courts of appeals

should not go beyond the basic qualified-immunity framework to

deprive plaintiffs of their "day in court."          Crawford-El contains

a number of observations which should inform the way we proceed in

a case like this one.       For example, the Supreme Court noted that

the “holding in Harlow, which related only to the scope of an

affirmative defense, provides no support for making any change in

the nature of the plaintiff’s burden of proving a constitutional

violation.”    Crawford-El, 118 S. Ct. at 1592.      The Supreme Court is

telling us that the policies that give rise to the affirmative

defense of qualified immunity do not stretch so far as to justify

stacking    the   deck   against   the   substance   of   the   plaintiff’s

underlying claims.       The panel majority’s erroneous interpretation

in this litigation in Trooper Barnhart’s favor are functionally

indistinguishable from the D.C. Circuit’s now-disapproved practice

                                    -38-
                                     38
of requiring “‘clear and convincing evidence on the state-of-mind

issue at summary judgment.’”        Id. at 1589 (quoting Crawford-El v.

Britton, 93 F.3d 813, 815 (D.C. Cir. 1996) (en banc)).

      The Supreme Court also strained to point out that there is no

reason for the courts of appeals to "deal under the table" in order

to   impede    lawsuits   against   public   officials.   The   Court   has

endorsed “firm application of the Federal Rules of Civil Procedure”

which “may lead to the prompt disposition of insubstantial claims,”

id., 118 S. Ct. at 1596 (internal quotation marks omitted), and

went to great lengths to detail procedural barriers that the

district courts should use to dispose of insubstantial claims, see

id. at 1596-98.

      Perhaps most importantly, the Court reiterated that a claim

which may have merit should be heard unless the plaintiff fails to

survive a fair application of qualified-immunity analysis.

                   [Qualified immunity’s] rationale of fairness
              does not provide any justification for the
              imposition of special burdens on plaintiffs who
              allege misconduct that was plainly unlawful when it
              occurred.   While there is obvious unfairness in
              imposing liability -- indeed, even in compelling
              the defendant to bear the burdens of discovery and
              trial -- for engaging in conduct that was
              objectively reasonable when it occurred, no such
              unfairness can be attributed to holding one
              accountable for actions that she knew, or should
              have known, violated the constitutional rights of
              the plaintiff. Harlow itself said as much: “If the
              law was clearly established, the immunity defense
              ordinarily   should   fail,  since   a   reasonably
              competent public official should know the law
              governing his conduct.” Id., at 818-819; see also
              Butz, 438 U.S. at 506 (“[I]t is not unfair to hold
              liable the official who knows or should know he is
              acting outside the law . . . .”).

Crawford-El, 118 S. Ct. at 1593.

                                    -39-
                                     39
     If this case had proceeded as usual and gone to trial, it is

possible that Colston might left the courthouse with empty pockets.

He was, however, entitled under the evidence available at summary

judgment to step to the bar and take his fair chances.

     Colston’s claim was not insubstantial.            The right which he

alleges was violated -- the right to be free from police brutality

-- is one of our civil rights which is of most vital concern to

significant portions of our population.          The alleged violation of

his rights resulted in serious and permanent injuries. Colston has

alleged facts which would support a jury finding that Trooper

Barnhart improperly used deadly force to accomplish his seizure.

The law, as clarified in Crawford-El, is plain; our Court should

not have intervened when Trooper Barnhart’s motion for summary

judgment    was   denied   on   the    basis   that   the   facts   were   not

sufficiently established to justify summary judgment.



                                      IV.

     For the foregoing reasons, and with all due respect to my

colleagues, I dissent from the panel majority’s additional opinion

on rehearing, and I dissent from our Court’s denial of rehearing en

banc.



ENDRECORD




                                      -40-
                                       40
BENAVIDES, Circuit Judge, dissenting from the denial of rehearing en banc:

        The central issue in this qualified immunity case is the important question of the proper scope

of a court of appeals’ review of the summary judgment record in a case where a district court has

failed to identify the genuine issues of material fact precluding summary judgment. The Colston

majority asserts that a court of appeals may review de novo a district court’s determination that the

plaintiff’s evidence creates a genuine factual dispute in order to preserve a public official’s right to

an immediate appeal on the question of qualified immunity. After substituting its genuineness analysis

for that of the district court, the majority concludes that Barnhart is entitled to qualified immunity

because his effectively uncontested subjective account of the events preceding the shooting indicates

that he acted with objective legal reasonableness when he shot Colston twice in the back.

        In contrast, I believe that the majority’s de novo review of the sufficiency of Colston’s

evidence conflicts with the Supreme Court’s decision in Johnson v. Jones, 115 S. Ct. 2151 (1995),

and the collateral order doctrine. The majority, moreover, could have respected the limits on this

court’s jurisdiction over interlocutory appeals and protected Barnhart’s right to an immediate appeal

by deciding the question of qualified immunity on the basis of the version of the facts contained in

Colston’s response to Barnhart’s motion for summary judgment or by remanding the case to the

district court for a complete statement of the genuine issues of material fact precluding summary

judgment. Had the majority adopted either of these alternatives to an independent review of the

summary judgment record, it would not have reversed the district court. I, therefore, respectfully

dissent from the denial of rehearing en banc.

                                                    I.

        In its explanation of the basis for the court’s jurisdiction over Barnhart’s interlocutory appeal,

the Colston majority correctly interprets the Supreme Court’s decisions in Jones and Behrens v.

Pelletier, 116 S. Ct. 834 (1996), to permit this court to exercise jurisdiction over an interlocutory

appeal contending that the factual disputes identified by a district court in its order denying a

defendant’s motion for summary judgment on the basis of qualified immunity are immaterial to a
determination of whether a plaintiff’s constitutional rights were violated or whether a defendant’s

conduct was objectively reasonable in light of clearly established law.16 In other words, we may

consider on interlocutory appeal a defendant’s claim that when the facts, both disputed and

undisputed, are viewed in the light most favorable to the plaintiff, they demonstrate that the defendant

is entitled to qualified immunity. See Hart v. O’Brien, 127 F.3d 424, 455 (5th Cir. 1997) (Benavides,

J., dissenting). The majority also rightly recognizes that a court of appeals must adopt the district

court’s articulation of the genuinely disputed facts when determining whether these disputes are

material to a finding of qualified immunity.17 Finally, the majority properly concludes that when a

district court has “not identif[ied] those factual issues as to which it believes genuine disputes remain”

and a defendant is claiming on interlocutory appeal that the factual disputes in the case are immaterial

to a finding of qualified immunity, Jones and Behrens authorize us to review the summary judgment

record in order to identify “what issues of fact the district court probably considered genuine” when

denying the defendant’s motion for summary judgment so that we may in turn det ermine if those

disputes are material. This much is clear from the Supreme Court’s statement that under these

circumstances, a court of appeals “‘may have to undertake a cumbersome review of the record to



        16
            See Behrens, 116 S. Ct. at 842 (“Johnson permits [a defendant] to claim on appeal that
[the factual disputes identified by the district court are immaterial because] all of the conduct which
the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow
standard of `objective legal reasonableness.’”); Jones, 115 S. Ct. at 2159 (holding that a court of
appeals may review on interlocutory appeal a district court’s determination “that a given set of facts
violates clearly established law”); Collins v. Jordan, 110 F.3d 1363, 1370 (9th Ci r. 1997) (“An
appellate court still has jurisdiction to consider a defendant’s assertion that the dispute of fact is not
material. Such a claim is of a different character from a claim that the [district] court’s findings are
not supported by the record. The claim of lack of materiality is solely one of law, and therefore is
reviewable on an interlocutory basis.”) (citations omitted); Dickerson v. McClellan, 101 F.3d 1151,
1157 (6th Cir. 1996) (noting that a court of appeals may “exercise interlocutory jurisdiction” over
an appeal from a denial of summary judgment in a qualified immunity case when “the factual disputes”
identified by the district court are “immaterial”).
       17
          See Behrens, 116 S. Ct. at 842 (noting that a court of appeals considers “the conduct which
the District Court deemed sufficiently supported for purposes of summary judgment” when deciding
materiality); Jones, 115 S. Ct. at 2159 (“When faced with the argument that the district court
mistakenly identified clearly established law, the court of appeals can simply take, as given, the facts
that the district court assumed when it denied summary judgment.”).

                                                   42
determine what facts the district court, in the light most favorable to the nonmoving party, likely

assumed’” to be sufficiently supported when it denied summary judgment. Behrens, 116 S. Ct. at 842

(quoting Jones, 115 S. Ct. at 2159).

                                                  II.

       The Colston majority and I part company, however, when it describes the manner in which

we are to review the summary judgment record when identifying the factual disputes likely viewed

as genuine by the district court. According to the majority, Behrens permits a court of appeals to “go

behind” a district court’s determination that genuine issues of material fact preclude summary

judgment when we are evaluating whet her the unstated facts that the court “likely assumed” are

material to a finding of qualified immunity. Although the Colston majority is careful not to explain

what it means to “go behind” a district court’s determination and “conduct an analysis of the summary

judgment record,” its opinion illustrates that a court of appeals may disregard its obligation to

reco nstruct the version of the facts that best explains the district court’s decision to deny the

defendant’s motion for summary judgment when going behind that determination. In fact, the

majority’s decision to “adopt Barnhart’s version of the facts” demonstrates that going behind a

district court’s determination entails conducting a de novo review of the district court’s finding that

the plaintiff’s evidence was sufficient to create a genuine issue of material fact. The majority’s

conception of the scope of our review of the summary judgment record in a case like Colston,

however, cannot be reconciled with the Supreme Court’s decision in Jones or the collateral order

doctrine.

       The summary judgment record in Colston indicates that Barnhart and Colston provided

plausible and conflicting accounts of the tenor and significance of the events captured on film by the

camera mounted in Barnhart’s patrol car. According to Barnhart, for example, Colston’s effort to

stand up in the face of a command to get on the ground was an aggressive and threatening act.

Colston, on the other hand, draws attention to the fact that he was a young black man ordered to the

ground by a white police officer in connection with a traffic stop that occurred at night on an empty


                                                  43
highway. Colston explains that he lifted his leg in preparation to flee because he was noticeably

frightened by the officers and what he perceived to be their impending use of force.

       The parties also offer conflicting accounts of the most critical point in the encounter: The

moment when Barnhart fired two shots into Colston’s back. Barnhart contends that it was not

feasible for him to warn Colston before firing these shots because he “had to immediately decide

whether to shoot.” Id. at 100. According to Barnhart’s motion for summary judgment, he decided

to shoot because he was “dazed and disoriented” and he “perceived [Colston] to be in the process

of attacking him” or “hovering above” him.

       The videotape, however, clearly shows that Colston was not in the process of attacking either

officer at the time he was shot twice in the back. Instead, as being shot in the back indicates, Colston

was running away. Colston contends that his observable demeanor indicated that he was in fact

fleeing at this point because he had been visibly frightened, had not placed himself in a position to

strike the officers after knocking them down, and had not attempted to disarm or strike the officers

while they were lying “dazed,” “limp,” and “motionless” on the ground. See Colston v. Barnhart,

130 F.3d 96, 99 (5th Cir. 1997). As for Barnhart’s suggestion that his dazed and disoriented state

contributed to his misperception that Colston was moving toward him, the record indicates that he

was nonetheless able to see Colston clearly enough to get “a good target acquisition” before firing.

Further, as Judge DeMoss stated in his dissent from the panel opinion, Barnhart’s account of the

extent of his incapacity may be more hyperbole than fact. See id. at 103 (DeMoss, J., dissenting).

Thus, to justify Barnhart’s decision to shoot Colston without warning on the basis of his possibly

unreasonable assumption that Colston was advancing upon him, the majority puts forth an explanation

of the shooting that Barnhart did not even raise in his motion for summary judgment: That when

Barnhart fired the final two shots, Colston was running toward the “patrol car, where Barnhart’s

shotgun was located” and was, presumably, accessible. Id. Of course, Barnhart did not raise this

justification for the shooting because it completely contradicts his admission in his motion for

summary judgment that he shot Colston because he perceived Colston to be moving toward him.


                                                  44
        Even if Barnhart did in fact perceive Colston to be heading for the patrol car, there is no

evidence that Colston knew of the shotgun. In fact, we do not know whether the shotgun was loaded

or how readily Colston could have retrieved it from the police cruiser. Moreover, the shotgun could

not have been visible to Colston from the front of the patrol car because it was dark and the car lights

were shining in his eyes. Further, Colston had proceeded only “two st eps . . . toward Barnhart’s

patrol car” when he was shot. Id. Under these circumstances, Colston suggests that Barnhart, even

if he was in fact concerned about Colston’s access to the shotgun, had ample time to issue a warning

before firing the last two shots.

        Notwithstanding these conflicting versions of the events preceding shooting, the majority

states that it adopted Barnhart’s “version of the facts” because they “mirrored the version of the facts

that we determined the district court likely assumed” when denying Barnhart’s motion for summary

judgment. Why the district court would have adopted a version of the events not argued by Barnhart,

only to deny his motion for summary judgment, is unclear.         More importantly, there can be no

question that when the district court denied Barnhart’s motion for summary judgment because

“genuine issues of fact [exist] as to `what information Trooper Barnhart possessed immediately prior

to and at the moment he fired the three shots at [Colston],’” it necessarily found that Colston’s

version of the encounter conflicted with Barnhart’s and that Colston’s account was sufficiently

supported by the summary judgment evidence. Thus, by ignoring Colston’s account of the encounter

and replacing it with the version of the events preceding the shooting that is most favorable to

Barnhart’s qualified immunity claim, the majority, contrary to the Supreme Court’s instruction in

Jones, in fact rejected the version of the “facts the district court, in the light most favorable to the

nonmoving party, likely assumed” when denying Barnhart’s motion for summary judgment. 115 S.

Ct. at 2159.

        Moreover, the process by which the majority inexplicably concluded that the district court

adopted Barnhart’s version of the facts when denying his motion for summary judgment also cannot

be squared with the Supreme Court’s decision in Jones or the collateral order doctrine. In Jones, the


                                                  45
Court unequivocally held that “a defendant, entitled to invoke a qualified-immunity defense, may not

appeal a district court’s summary judgment order insofar as that order determines whether or not the

pretrial record sets forth a ‘genuine’ issue of fact for trial” because the collateral order doctrine

precludes jurisdiction over an interlocutory appeal raising a question, such as “evidence sufficiency”

that is not “significantly different from the fact-related legal issues that likely underlie [a] plaintiff’s

claim on the merits.” Id. at 2157, 2159. Nonetheless, in order to adopt the version of the events

preceding the shooting that the majority believes Barnhart should have identified as the factual basis

for his materiality challenge, it had to go beyond the version of events contained in Barnhart’s motion

for summary judgment, substitute its own genuineness analysis for that of the district court, and

conclude that Colston produced insufficient evidence calling into question the objective

reasonableness of Barnhart’s decision to shoot him twice in the back. A district court’s failure to

identify the genuinely disputed facts, however, does not transform the question of evidence

sufficiency into an issue that is separable from the merits of a plaintiff’s claim and that is within this

court’s jurisdiction on interlocutory appeal.

        According to the majority, this conflict between its de novo review of the sufficiency of

Colston’s evidence and the Court’s decision in Jones and collateral order doctrine is authorized by

the Supreme Court’s decision in Behrens. The Behrens opinion, however, does not purport to create

an exception to the collateral order doctrine’s separability requirement. Likewise, as the Colston

majority recognizes, the opinion in Behrens does not expressly state that a court of appeals may

review a district court’s genuineness determination and substitute its view of the summary judgment

evidence for that of the district court in a case where the district court has “not identif[ied] the

particular charged conduct that it deemed adequately supported for the purposes of summary

judgment.” Instead, the Court in Behrens simply reiterated its position in Jones that under these

circumstances, a court of appeals “`may have to undertake a cumbersome review of the record to

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

assumed.’” Behrens, 116 S. Ct. at 842 (quoting Jones, 115 S. Ct. at 2159). The majority’s


                                                    46
interpretation of Behrens, therefore, is ultimately predicated on its view that a court of appeals may

review de novo a district court’s genuineness determination on interlocutory appeal because there is

no better way “to ensure that the defendant’s right to an immediate appeal on the issue of materiality

is not defeated solely on account of the district court’s failure to articulate its reasons for denying

summary judgment.”

        Like the majority’s independent review of the sufficiency of Colston’s evidence, this policy

argument also conflicts with the Supreme Court’s decision in Jones. In that case, the petitioner

claimed that a court of appeals should be permitted to review the sufficiency of a plaintiff’s evidence

on interlocutory appeal because “the need to protect officials against the burdens of further pretrial

proceedings and trial justifies a relaxation of the separability requirement.” Jones, 115 S. Ct. at 2157

(quotations omitted). The Supreme Court, however, rejected this claim. Emphasizing jurisdiction

over expedience, cf. Steel Co. v. Citizens for a Better Env’t, 118 S. Ct. 1003, 1011-16 (1998)

(holding that a court of appeals may not assume that a plaintiff has standing in order to reach the

merits of that plaintiff’s claim), the Court stated that allowing a court of appeals to review the

sufficiency of a plaintiff’s evidence on interlocutory appeal “would more than relax the [collateral

order doctrine’s] separability requirement—it would in many cases simply abandon it.” Jones, 115

S. Ct. at 2157. Thus, the majority’s policy rationale for its interpretation of Behrens sharpens, rather

than alleviates, the conflict between its de novo review of the district court’s genuineness

determination and the Supreme Court’s holding in Jones.

                                                  III.

        The majority’s policy rationale for its de novo review of the sufficiency of Colston’s evidence

also reflects an incorrect understanding of the proper balance between the policies underlying

qualified immunity and the limits on our jurisdiction over interlocutory appeals. Contrary to the

majority’s suggestion, a de novo review of a district court’s genuineness determination was not

necessary to ensure Barnhart’s right to an immediate appeal on the question of qualified immunity.

Instead, the majority could have overcome the district court’s incomplete order denying summary


                                                  47
judgment and fully protected Barnhart’s right to an interlocutory appeal by adopting of the version

of events contained in Colston’s response to Barnhart’s motion for summary judgment or remanding

the case to the district court for a complete statement of the genuine issues of material fact. Each of

these alternatives to the handling of this appeal, moreover, would have been entirely consistent with

the collateral order doctrine and the language and analysis in Jones and Behrens. The majority,

therefore, did not have to interpret Behrens as conflicting with the collateral order doctrine and the

Court’s unanimous decision in Jones in order to properly dispose of this appeal.

        To exercise its jurisdiction over an interlocutory appeal from an incomplete order denying

summary judgment in a manner that is consistent with Jones and the collateral order doctrine, a court

of appeals should “determine what facts the district court, in the light most favorable to the

nonmoving party, likely assumed” when denying a defendant’s motion for summary judgment by first

comparing that defendant’s motion for summary judgment and the plaintiff’s response in order to

identify the disputed issues of fact.18 By assuming that the plaintiff’s version of these factual disputes

is sufficiently supported by the summary judgment evidence, a court of appeals best complies with

its obligation under Jones to adopt the version of the facts, “in the light most favorable to the

nonmoving party,” that the district court most “likely assumed” when it denied the defendant’s

motion for summary judgment. Jones, 115 S. Ct. at 2159. Moreover, by utilizing the plaintiff’s

version of the facts when determining whether the factual disputes between the parties are material

to a finding of qualified immunity, a court of appeals preserves the collateral order doctrine’s



        18
           As the Supreme Court has suggested, our review of the summary judgment record may
become “cumbersome” if a defendant’s motion for summary judgment and the plaintiff’s response do
not sufficiently highlight the factual disputes in a case. See Jones, 115 S. Ct. at 2159. In that event,
a court of appeals may be forced to examine the parties’ exhibits, the complaint, and the answer in
order to identify the plaintiff’s version of the factual disputes that it will assume to be genuine for the
purposes of its materiality analysis. Of course, this “detailed evidence-based review of the record,”
id., increases the risk that the collateral order doctrine’s separability requirement will be relaxed, if
not abandoned, in an effort to hasten the resolution of a qualified immunity case. A remand to the
district court for a complete statement of the genuine issues of material fact precluding summary
judgment, however, would eliminate this risk of relaxing or abandoning the separability requirement
in such a case without sacrificing a public official’s right to an immediate appeal. See infra.

                                                    48
separability requirement and the defendant’s right to an interlocutory appeal on the issue of qualified

immunity.19

        Had the majority in Colston properly restricted its review of the summary judgment record,

it would have determined that the factual dispute as to whether Colston was running away or whether

he posed an immediate threat of death or serious bodily harm to the officers at the time he was shot

twice in the back was material to a finding that Barnhart was entitled to qualified immunity.20 Once

the version of the events preceding the shooting contained in Colston’s response to Barnhart’s motion

for summary judgment is assumed to be sufficiently supported by the evidence, it is clear that the

district court correctly determined that Barnhart was not entitled to summary judgment based on the

objective reasonableness of his actions. Under Colston’s characterization of the shooting, a

reasonable po lice officer in Barnhart’s position at the time of the shooting would not have shot

Colston twice in the back without warning because that officer would have perceived that Colston

was running away. Moreover, even if t he majority correctly credits Barnhart with the unclaimed

subjective intent of shooting Colston because he perceived Colston to be running toward the patrol

car, a reasonable officer would not have shot Colston in the back until Colston had taken additional

action indicating an intent to gain access to the shotgun in the police cruiser in the face of a warning

to move away from the car. The factual disputes between Colston and Barnhart, therefore, are

material to a finding of qualified immunity and the Colston majority should have affirmed the district

court’s denial of Barnhart’s motion for summary judgment. Cf. Dickerson, 101 F.2d at 1164

(dismissing a defendant’s interlocutory appeal for lack of jurisdiction after determining that the factual


       19
          Cf. Jones, 115 S. Ct. at 2159 (noting that a court of appeals avoids entangling itself in the
merits of a plaintiff’s case and causing a corresponding relaxation of the separability requirement by
“simply tak[ing], as given, the facts that the district court assumed when it denied summary
judgment”); Hammond v. Kunard, No. 96-2343, 1998 WL 305187, at *3 (7th Cir. June 11, 1998)
(“[In] a motion to dismiss, we assume t hat all of the facts of the complaint are true, rendering the
applicability of qualified . . . immunity a purely legal question over which we have jurisdiction.”).
         20
            Of course, had the majority adopted these principles, it would not have reviewed the
sufficiency of Colston’s evidence or inexplicably concluded that the district court likely assumed the
version of the facts most favorable to Barnhart when denying his motion for summary judgment.

                                                   49
disputes between the parties were material to a finding that the defendant was entitled to qualified

immunity on the plaintiff’s excessive force claim); Clash v. Beatty, 77 F.3d 1045, 1049 (7th Cir.

1996) (dismissing a defendant’s interlocutory appeal for lack of jurisdiction when the record was

insufficiently developed for the court of appeals to determine whether the disputes between the

parties were material to a finding that the defendant was entitled to qualified immunity on the

plaintiff’s excessive force claim).21

        In the alternative, even though a cumbersome review of the record is not necessary to identify

the version of the facts supporting the district court’s decision to deny Barnhart’s motion for

summary judgment, the majority should have remanded this case to the district court for a sufficiently

specific statement of the genuine issues of material fact precluding summary judgment.22 In fact, this

approach might have struck an even better balance between the goals of qualified immunity and the


        21
           This is not to say that Barnhart may not ultimately prevail on his claim that he acted with
objective legal reasonableness under the circumstances. Colston’s version of the encounter, however,
indicates that the determination of whether Barnhart acted with objective legal reasonableness belongs
to a jury. When confronted with the testimony of both Barnhart and Colston, a jury may ultimately
conclude that a reasonable officer, when standing in Barnhart’s shoes, would have also shot Colston
twice in the back without warning. Cf. Snyder v. Trepagnier, No. 96-30935, 1998 WL 268280, at
*7-9 (5th Cir. May 27, 1998) (affirming a jury verdict that awarded the defendant qualified immunity
for his decision to shoot the plaintiff in the back after the district court had properly denied summary
judgment on qualified immunity grounds because there was a genuine dispute of material fact as to
whether the plaintiff had a gun or the defendant reasonably believed that he did).
       22
          Cf. Crutcher v. Kentucky, 883 F.2d 502, 503 (6th Cir. 1989) (“The district Court’s denial
of Owens’ motion stated only that genuine issues of material fact remained for resolution at trial. .
. . We vacate the District Court’s ruling on the qualified immunity issue and remand this case to the
District Court so that it can state its reasons for concluding that there was no genuine dispute about
any fact material to whether Owens violated clearly established constitutional rights.”); Poe v.
Haydon, 853 F.2d 418, 426-27 (6th Cir. 1988) (“Although this court could conduct its own
examination of the record and determine if there is a genuine dispute about any fact material to
whether appellants violated any clearly established constitutional or statutory rights, we decline to
do so.”); Whitt v. Smith, 832 F.2d 451, 453-54 (7th Cir. 1987) (“No particular factual issues were
identified in the district court’s order . . . and [w]e will not attempt the factual analysis to determine
whether qualified immunity is applicable at this stage of the proceedings. We therefore . . . remand
the case to the district court.”); Green v. Carlson, 826 F.2d 647, 652 (7th Cir. 1987) (“The appellants
contend that . . . this court should conduct its own examination of the record and decide . . . whether
the appellants violated any clearly established constitutional or statutory rights. However, in light of
the complexity of this case, and the district court’s finding that numerous [but unstated] disputed
issues of fact remain, we decline to reach the merits of the defendants’ qualified immunity claim.
Instead, we remand the case for [additional] finding[s].”)

                                                   50
limits on our jurisdiction over interlocutory appeals than a limited review of the parties’ competing

summary judgment filings.23 A proper remand in this case would have protected Barnhart from any

additional “burdens of litigation,” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), by staying the

proceedings in the district court, if necessary, until that court had sufficiently identified the genuine

issues of material fact precluding summary judgment and this court had reached a decision on the

merits of Barnhart’s subsequent interlocutory appeal. In addition, this disposition would have

precluded any potential relaxation of the separability requirement.

        Indeed, even if the majority correctly interprets Behrens to create an exception to Jones and

the collateral order doctrine that authorizes a court of appeals to conduct a de novo review of the

sufficiency of a plaintiff’s evidence simply because a district court has failed to identify the genuine

issues of material fact precluding summary judgment,24 this case should have been remanded.25 There


        23
            A remand in this case would also promote judicial economy. As the Supreme Court has
noted, “considerations of delay, comparative expertise of trial and appellate courts, and wise use of
judicial resources, argue in favor of limiting interlocutory appeals of ‘qualified immunity’ matters to
cases presenting more abstract issues of law.” Jones, 115 S. Ct. at 2158. Every effort we make to
identify a plaintiff’s version of the disputed issues of fact, however, makes the qualified immunity
determination less of a pure question of law. That a remand would entail additional district court
action, moreover, does not undercut its usefulness in furthering judicial economy. Instead, it reflects
the district court’s comparative advantage in identifying the version of the facts precluding a grant
of summary judgment. Further, a rule requiring remands of interlocutory appeals from insufficiently
specific orders denying summary judgment would promote judicial economy by encouraging district
courts to identify completely the genuine issues of material fact precluding summary judgment.
         24
             In Jones, the Supreme Court stated that “a rule that occasionally requires a detailed
evidence-based review of the record is still, from a practical point of view, more manageable that the
rule that petitioners urge us to adopt,” i.e., allowing a court of appeals to review the sufficiency of
the plaintiff’s evidence on interlocutory appeal. 115 S. Ct. at 2159. The Court then noted that the
“petitioners’ approach would make that task not the exception, but the rule.” Id. When read in
isolation, this language might suggest that the Court has crafted a narrow exception to the collateral
order doctrine’s separability requirement. To adopt this reading of Jones, however, would conflict
with the Court’s earlier statement in Jones that the policies justifying an interlocutory appeal on the
purely legal question of qualified immunity do not authorize an abandonment of the separability
requirement to permit an interlocutory appeal on the question of evidence sufficiency. Thus, this
language from Jones is best understood as reflecting the Supreme Court’s recognition that a
“cumbersome” review of the record increases t he risk that a court of appeals will review the
sufficiency of a plaintiff’s evidence.
        25
          In the alternative, the majority should have affirmed the district court because Colston’s
evidence was sufficient to create a genuine issue of material fact as to whether Barnhart should have

                                                   51
is simply no reason to relax or abandon the collateral order doctrine’s separability requirement when

a remand will not deprive a defendant of the benefits of raising a qualified immunity defense.

                                                 IV.

       I respectfully dissent from the denial of rehearing en banc. The question of the proper scope

of our review of the summary judgment record in an interlocutory appeal from an incomplete order

denying summary judgment is one of considerable importance. Any answer we give must carefully

balance the limited nature of our jurisdiction over interlocutory appeals with the policies underlying

qualified immunity. For this reason alone, the majority’s decision in Colston deserves the attention

of the full court. More importantly, the balance the majority has struck between these competing

concerns conflicts unnecessarily with the Supreme Court’s decision in Jones. Thus, the court should

have taken this case en banc and either affirmed the district court’s denial of summary judgment or

remanded this case.




perceived that Colston was running away at the time he was shot twice in the back.

                                                 52
