                                                             F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                              JAN 22 2001
                          FOR THE TENTH CIRCUIT
                                                         PATRICK FISHER
                                                                   Clerk

DERONN WRATHER;
STEPHEN WILLIAMS and
VINCENT TURNER,

            Plaintiffs-Appellees,

v.                                              No. 99-5224
                                          (D.C. No. 97-CV-435-BU)
CITY OF TULSA; RON PALMER                        (N.D. Okla.)
and SUSAN SAVAGE, in their
official capacity as City of Tulsa
executive officers; TULSA POLICE
DEPARTMENT; BILL YELTON;
MICHAEL ECKERT; CHARLES
JORDAN; STEVEN MIDDLETON;
B. BONHAM; CHRIS WITT; SGT.
J. CLARK, in their official capacity
as Tulsa Police officers; and OTHER
UNKNOWN PERSONS, individually
and in their official capacities as
Tulsa Police Officers; W. B. MAJOR;
A. CORPORAL; A. WILSON; and
KEVIN JOHNSON, individually and
in their official capacity as Tulsa
Police officers,

            Defendants,

      and

BILL YELTON, individually;
MICHAEL ECKERT, individually;
CHARLES JORDAN; STEVEN
MIDDLETON, individually;
B. BONHAM, individually;
SGT. J. CLARK, individually;
and W.B. YORK, individually and in
his official capacity as a Tulsa Police
officer,

              Defendants-Appellants.


                             ORDER AND JUDGMENT         *




Before BRORBY , KELLY , and LUCERO , Circuit Judges.



       Defendants-appellants W. B. York, Bruce Bonham, Bill Yelton, Michael

Eckert, and Steven Middleton appeal the district court’s denial of qualified

immunity in this civil rights action. Because defendants-appellants are

challenging the district court’s conclusion that genuine factual disputes remain

which affect the availability of qualified immunity, we lack jurisdiction over this

interlocutory appeal and therefore dismiss.         1



       On May 4, 1996, members of the Ku Klux Klan held a rally on the Tulsa

County courthouse steps, to be followed by a cross burning on private land. After


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

                                              -2-
the rally had concluded, the Klansmen had been escorted to their cars, and the

street had been reopened to traffic, a crowd of predominately African-Americans

remained on a sidewalk approximately a block from the courthouse.

      Tulsa police officers conferred with defendant-appellant York and decided

to clear the crowd. The crowd was broken up through a combination of officers

advancing into the crowd on horses, officers advancing in a skirmish line, pepper

spray, and the arrest of uncooperative crowd members. Defendants-appellants

Yelton, Bonham, Eckert, and Middleton participated in these actions. Plaintiffs

were arrested during the dispersal of the crowd. Plaintiff Turner was arrested for

disorderly conduct by defendant-appellant Bonham. Plaintiff Wrather, now

married to plaintiff Turner, was arrested by defendant-appellant Eckert for

obstructing officers, resisting arrest, and assaulting an officer. Plaintiff Williams

was arrested for inciting a riot, assaulting an officer, and resisting arrest, by

a number of officers, including defendant-appellant Middleton.

      Plaintiffs filed an action against the City of Tulsa, the mayor, the police

chief, and various police officers, alleging civil rights violations under the First,

Fourth, and Fourteenth Amendments, and state law violations. All defendants

filed motions for summary judgment, seeking qualified immunity for their

conduct.




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      To show the existence of factual disputes, plaintiff Turner submitted an

affidavit stating (1) that before police dispersed the crowd, people were

peacefully assembled on the sidewalk, there were no threats of violence, and no

one was asked to leave or given any warning before the horse attack; (2) that

plaintiff Turner at no time made any loud or angry statements or failed to obey an

order, and therefore was arrested without reason; and (3) that plaintiff Wrather

did not interfere with Turner’s arrest and thus was arrested without cause. Video

evidence was also submitted, showing that before the horses arrived

approximately ten Tulsa police officers were on the street facing a crowd of men,

women, and children, predominately African-American, who were milling around

on the sidewalk and grassy area, and were sitting on a concrete fence enclosing

a parking lot. No angry threats or interchanges can be heard on the video tape,

and the crowd’s demeanor appears peaceful. The video then shows the Tulsa

mounted police riding into the crowd, the skirmish line advancing, and the

deployment of pepper spray. In the resulting chaos, the video shows several

take-down arrests, including a struggle to get plaintiff Williams to the ground

which ended with defendant-appellant Middleton kicking Williams in the head.

      The district court considered each claim separately, and made several

rulings relevant to this appeal: (1) regarding plaintiffs’ claim that their First

Amendment right to peaceably assemble had been violated, the district court


                                          -4-
dismissed claims against three police officers, but held there was a factual dispute

as to the objective reasonableness of the conduct of defendants-appellants York,

Yelton, Eckert, Middleton, Bonham, and defendants Clark and Jordan;     2



(2) regarding plaintiffs’ Fourth Amendment claims of false arrest and/or

excessive violence, the district court dismissed claims against most of the

officers, but denied qualified immunity on Turner’s false arrest claims against

defendant-appellant Bonham and defendant Clark, plaintiff Wrather’s false arrest

claim against defendant-appellant Eckert, and plaintiff Williams’ excessive force

claim against defendant-appellant Middleton; and (3) regarding the state law

claims, the district court declined to enter summary judgment in favor of any of

the defendants. Defendants-appellants York, Yelton, Eckert, Middleton, and

Bonham have appealed these rulings, arguing they are entitled to qualified

immunity as a matter of law.

      We must examine whether we have jurisdiction over this interlocutory

appeal. “Since federal courts are courts of limited jurisdiction, we presume no

jurisdiction exists absent an adequate showing by the party invoking federal

jurisdiction. If jurisdiction is challenged, the burden is on the party claiming

jurisdiction to show it by a preponderance of the evidence.”   United States ex rel.



2
      Defendants Clark and Jordan originally appealed the court’s ruling, but
have since withdrawn their appeals.

                                           -5-
Hafter v. Spectrum Emergency Care, Inc.       , 190 F.3d 1156, 1160 (10th Cir. 1999)

(citations omitted).

       An order denying qualified immunity is appealable before trial only if it

involves “neat abstract issues of law.”     Johnson v. Jones , 515 U.S. 304, 317

(1995) (quotation omitted). When the district court’s denial of qualified

immunity rests on the existence of a genuine issue of fact which will determine

the availability of the defense, the ruling is not immediately appealable under the

collateral order doctrine.   Id. at 310, 313-15 (affirming dismissal for lack of

jurisdiction officers’ appeal from denial of qualified immunity based on a factual

dispute whether they engaged in beating, noting lack of separability from merits);

Foote v. Spiegel , 118 F.3d 1416, 1422 (10th Cir. 1997) (“[G]overnment officials

cannot appeal pretrial denial of qualified immunity to the extent the district

court’s order decides nothing more than whether the evidence could support

a finding that particular conduct occurred.”). Such a denial may be appealed as

a question of law, however, if a defendant argues that even under the plaintiff’s

facts there was no violation of clearly established law.    Johnson v. Martin ,

195 F.3d 1208, 1214-15 (10th Cir. 1999).

       In this case, the district court denied summary judgment solely on the

ground that plaintiffs’ evidence created factual disputes whether the police

conduct in breaking up the assembly and arresting several participants was


                                             -6-
objectively reasonable. Such a reasonableness inquiry precludes jurisdiction over

defendants-appellants’ claims on appeal.       Myers v. Okla. County Bd. of County

Comm’rs , 80 F.3d 421, 425 (10th Cir. 1996) (holding district court’s denial of

qualified immunity was not immediately appealable when it rested solely on the

existence of a factual dispute regarding the reasonableness of defendants’ use

of force).

       Defendants-appellants York and Bonham attempt to cast their arguments

as questions of law, however, arguing they cannot be held liable because they

relied on information provided by other officers in making their decisions. An

officer “‘may rely on information furnished by other law enforcement officials

to . . . develop probable cause.’”     Baptiste v. J.C. Penney Co. , 147 F.3d 1252,

1260 (10th Cir. 1998) (quoting       Albright v. Rodriguez , 51 F.3d 1531, 1536

(10th Cir. 1995)). Qualified immunity is available, however, only if such

reliance was “objectively reasonable.”       Baptiste , 147 F.3d at 1260. This is

a question of fact.

       Here, the record does not show what information was communicated to

defendant-appellant York or to defendant-appellant Bonham. Without such

information, the court cannot presume that the officers acted reasonably simply

because they relied on the observations of other officers. Because the district

court denied qualified immunity based on a factual dispute regarding the


                                             -7-
reasonableness of York’s and Bonham’s decisions, and the officers do nothing

more than challenge this ruling, we are without jurisdiction to review the denial.

See, e.g. , McFarland v. Childers , 212 F.3d 1178, 1184 (10th Cir. 2000) (holding

court lacked jurisdiction when appellant’s argument “requests this court to review

the record to determine if the district court correctly interpreted the facts to find

a genuine dispute”) (quotations omitted).

      The appeal is DISMISSED for lack of jurisdiction.



                                                      Entered for the Court



                                                      Carlos F. Lucero
                                                      Circuit Judge




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