                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      January 26, 2007
                             FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                         Clerk of Court
    FRED RICH ARD DREIS,

              Plaintiff-Appellee,

     v.                                                  No. 05-4221
                                                  (D.C. No. 1:02-CV-154-TC)
    M ARTIN HIETALA, as an individual                      (D. Utah)
    and in his official capacity as an
    enforcement officer of the Davis
    County Sheriff’s Office,

              Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, HOL LOW A Y, and BALDOCK , Circuit Judges.


          Defendant M artin Hietala, a Deputy Sheriff in Davis County, Utah (D eputy

Hietala), brings this interlocutory appeal from the district court’s denial of his

motion for summary judgment based on qualified immunity. Because we lack

appellate jurisdiction over the district court’s ruling, we dismiss this appeal.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                            I.

       According to plaintiff Fred Dreis’s version of events, on the evening of

January 10, 2002, he was driving his 1976 truck in Ogden, Utah, on his way to a

friend’s home in Syracuse, Utah. W hile in Ogden, an unmarked vehicle, driven

by off-duty Deputy Hietala (and containing a passenger), honked at M r. Dreis and

started following him. The unmarked vehicle followed M r. Dreis “for a total of

approximately 20 miles or nearly 30 minutes . . . in a menacing manner, violating

the right-of-way of oncoming traffic . . . and running a red light . . . . ” Aplt.

App. at 12.

       W hen M r. Dreis reached his destination he pulled up to the curb, stopped,

and exited his truck. Deputy Hietala “screeched to a halt at an angle to”

M r. D reis’s truck, id. at 61, and “jumped out of his vehicle in [a] . . . violent

manner,” id. at 12. After M r. Dreis asked, “‘W hy are you following me?’”

Deputy Hietala threw a badge w rapped in leather across the hood of his car,

grabbed M r. Dreis, struck him with his left forearm, and announced “‘I’m a

Deputy Sheriff; you are going to jail!’” Id. M r. Dreis asked why, and Deputy

Hietala responded, “‘For reckless driving.’” Id.

       M r. Dreis, who himself is a trained law enforcement officer, observed that

Deputy Hietala did not appear to have handcuffs or a weapon, and he neglected to

ask M r. Dreis for his license or registration. W hen M r. Dreis asked to see Deputy

Hietala’s identification, Deputy Hietala refused and told M r. Dreis that he “was

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going to ‘start stacking charges.’” Id. M eanwhile, the female passenger who was

riding in Deputy Hietala’s unmarked car continued to sit in the passenger seat.

M r. Dreis asked Deputy Hietala to call an on-duty uniformed officer or a

supervisor, and he informed Deputy Hietala that he had a permit for, and was

carrying, a concealed w eapon. Deputy Hietala responded that “he w as a

supervisor and he didn’t need to call anyone,” id. at 62, and that “making that

statement [regarding the concealed weapon] was an ‘assault on a peace officer,’”

id. at 12. “[M r.] Dreis did not believe Hietala to be a true peace officer . . . .” Id.

at 13. And because M r. Dreis did not want Deputy Hietala to gain access to his

concealed weapon and “us[e] it on him,” he refused to cooperate w ith Deputy

Hietala’s request that he “turn his back . . . and place his hands behind him.” Id.

During the confrontation, Deputy Hietala grabbed at M r. Dreis’s coat, pulled and

shoved him, and hit him in the chest with the palm of his hand “[f]ive or six”

times. Id. at 63.

      W hen an on-duty police officer arrived, Deputy Hietala told him to “‘Hook

[Dreis] up,’” id. at 13. M r. Dreis voluntarily submitted to the uniformed officer’s

handcuffing and told him, “‘I have a concealed weapon and a permit to carry it.’”

Id. at 66. After the officer handcuffed M r. Dreis, Deputy Hietala “pulled

[M r.] Dreis to the sidewalk [by] the handcuffs” and then “roughly raised [his

handcuffed] hands high in the air behind him, bruising his wrists . . . .” Id. at 14.

W hile M r. Dreis’s hands were still in the air, Deputy Hietala searched him,

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jerking money from his pants pocket with sufficient force to tear several bills in

half. M r. D reis’s gun was seized and was not returned to him for two years.

                                          II.

      M r. Dreis filed this action pursuant to 42 U.S.C. § 1983,

      alleging six claims for relief: (1) unreasonable search and seizure;
      (2) failure to be informed of the nature and cause of the accusation
      against him; (3) use of excessive force; (4) punishment without the
      benefit of a jury trial; (5) taking D reis’s property without due process
      of law; and (6) taking Dreis’s property without just compensation.

Aplee. Br. at 3. At the end of the hearing on Deputy Hietala’s motion for

summary judgment, the district court concluded that genuine issues of material

fact precluded the grant of qualified immunity. This interlocutory appeal

followed.

                                         III.

      This court ordered the parties to brief the appealability of the district

court’s decision denying summary judgment based on qualified immunity.

“Orders denying qualified immunity before trial are appealable only to the extent

they resolve abstract issues of law.” Shrum v. City of Coweta, 449 F.3d 1132,

1137 (10th Cir. 2006). Abstract issues of law include “what the current

applicable law is, whether that law was clearly established at the time the

official’s action occurred, and whether the official’s acts w ere objectively

reasonable.” Campbell v. M ercer, 926 F.2d 990, 991 (10th Cir. 1991). Orders

denying qualified immunity before trial are not immediately appealable “when the

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question is the sufficiency of the evidence or the correctness of the district court’s

findings with respect to a genuine issue of material fact,” Shrum, 449 F.3d at

1137. See also Gross v. Pirtle, 245 F.3d 1151, 1156-57 (10th Cir. 2001) (“[W ]e

lack jurisdiction . . . if our review would require second-guessing the district

court’s determinations of evidence sufficiency.”).

      Deputy Hietala asserts that we have jurisdiction over this interlocutory

appeal as to M r. Dreis’s claims for illegal seizure and arrest because the district

court “plainly concluded both that (1) Officer Hietala’s seizure and arrest of

Dreis, viewed in light of the evidence most favorable to Dreis, violated D reis’s

constitutional rights and (2) those rights w ere clearly established.” A plt.

Jurisdictional B r. at 6. H aving carefully reviewed the hearing transcript, we

disagree. The district court did not determine w hether Deputy Hietala’s seizure

and arrest of M r. Dreis violated M r. Dreis’s constitutional rights. Rather, it

concluded:

      One, it is disputed, and the record does not lend itself to a finding as
      a matter of law, that the deputy identified himself in such a way that
      a reasonable man in M r. Dreis’[s] position would have known when
      the deputy said, “You are under arrest,” that he was being arrested by
      a police officer. I think that is a factual issue whether it was
      reasonable for M r. Dreis to not recognize him.

             Secondly, there is the question of the probable cause for the
      arrest. There is almost no evidence in this record that tells me one
      way or the other whether the probable cause statement is true. That
      is particularly significant in view of the fact that the question of
      whether M r. Dreis can be said to legally have resisted arrest



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       knowingly when all the circumstances under which this arrest was
       made are not clear.

Aplt. App. at 178. Further, the district court’s observation that “it would appear

under the circumstances of this case that the law was clearly established regarding

this sort of situation,” id. at 179, does not make “evident,” as D eputy Hietala

contends, that the district concluded that Deputy Hietala had violated M r. Dreis’s

constitutional rights, Aplt. Jurisdictional Br. at 6. The district court did not so

hold. Indeed, the court’s very next words belie Deputy Hietala’s characterization

of the court’s oral ruling. Read in its entirety, the court’s statement was:

              As far as the other steps in qualified immunity, certainly it
       would appear under the circumstances of this case that the law was
       clearly established regarding this sort of situation. But, again,
       because of the paucity of the record, I cannot say. And I really don’t
       know whether if a mistake was made by the deputy, whether that
       mistake was reasonable.

Aplt. App. at 179 (emphasis added).

       Deputy Hietala also argues that, viewing the facts in the light most

favorable to M r. D reis, he did not illegally seize or arrest M r. D reis. See, e.g.,

Aplt. Opening Br. at 12-16. W hile it is true that a district court’s denial of

qualified immunity is immediately appealable if a defendant’s appeal “is based on

the argument that, even under the plaintiff’s version of the facts, the defendant

did not violate clearly established law,” Johnson v. M artin, 195 F.3d 1208, 1214

(10th Cir. 1999), Deputy Hietala omits constitutionally salient facts. Because

Deputy Hietala omits salient facts, he fails to demonstrate that, on the facts as

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alleged by M r. Dreis, Deputy Hietala’s seizure and arrest did not violate

M r. Dreis’s constitutional rights.

      Deputy Hietala next asserts that we have jurisdiction over this interlocutory

appeal as to M r. Dreis’s claim for excessive force despite the “district court[’s]

fail[ure] to conduct a proper qualified immunity analysis with respect to Dreis’s

excessive force claim,” Aplt. Jurisdictional Br. at 11. W e disagree. W ith respect

to excessive force, the district court found disputed issues precluded the grant of

qualified immunity. Specifically, it stated:

             Third, there is a question of excessive force. . . . [T]his record
      is almost devoid of any evidence of what was objectively reasonable
      in this case. According to the evidence that I have before me,
      M r. Dreis w as struck five or six times during the course of this
      incident. A jury might find that under the circumstances to be
      unreasonable. I simply cannot say.

Aplt. A pp. at 178-79.

      Because the district court’s conclusion concerning excessive force, like the

district court’s conclusion regarding the alleged unlawful seizure and arrest of

M r. Dreis, is, at base, nothing more than a decision about evidentiary sufficiency,

we must D ISM ISS this appeal for lack of jurisdiction. See G ross, 245 F.3d at

1157 (“If we determine the district court’s conclusion rests on findings of

evidence sufficiency, we must dismiss for lack of jurisdiction.”).

                                                      Entered for the Court

                                                      Bobby R. Baldock
                                                      Circuit Judge

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