                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                  No. 12-3055
                                 _____________

                               DARRELL MCKOY

                                        v.

    DESHAN CARTER; GUIRLENE DIAZ; LINDEN POLICE DEPARTMENT;
  MICHAEL BOYLE, LINDEN POLICE CHIEF; JAMES EDGAR, LINDEN POLICE
   OFFICER; JASON MOHR, LINDEN POLICE OFFICER; PAUL ZACK, LINDEN
 POLICE OFFICER; KAULFERS, LINDEN POLICE OFFICER; BARWICK, LINDEN
  POLICE OFFICER; JOHN DOES (#1 THRU 5); JOHN SMITH (#1 THRU 5); JANE
SMITH (#1 THRU 5) fictitious names of persons presently unknown; CITY OF LINDEN

                           James Edgar and Jason Mohr,

                                              Appellants
                                _______________

                  On Appeal from the United States District Court
                           for the District of New Jersey
                          (D.C. Civil No. 2-09-cv-04170)
                     District Judge: Hon. Katharine S. Hayden
                                 _______________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                October 11, 2013

           BEFORE: FUENTES, COWEN, and BARRY, Circuit Judges

                             (Filed: October 29, 2013)
                                 _______________

                                   OPINION
                                _______________
COWEN, Circuit Judge.

       Linden Police Officers James Edgar and Jason Mohr (“Appellants”) appeal an

order of the District Court denying their jointly filed motion for summary judgment on

Appellee Darrell McKoy’s excessive force claims. Appellants argue that they are entitled

to qualified immunity.

       For the reasons set forth below, we conclude that we lack jurisdiction to consider

this interlocutory appeal. Accordingly, the appeal will be dismissed.

                                               I.

       Because we write exclusively for the parties, who are familiar with the factual

context and legal history of this case, we set forth only the facts that are necessary for our

analysis. These facts are agreed-upon by the parties to this appeal, except where

otherwise noted.

       In the summer of 2007, the City of Linden, New Jersey and the Borough of

Roselle, New Jersey created the Linden-Roselle Joint Patrol Initiative, which facilitated

community policing of ongoing gang violence in the area. On August 29, 2007, Roselle

detectives received an anonymous tip that four black males from Linden were planning a

gang-related drive-by shooting, and would be driving a small black four-door car. The tip

indicated that a man nick-named “Face” might be involved in the shooting. “Face” was a

known alias of Deshan Carter.1

       The next evening, a drive-by shooting occurred in Roselle. Eyewitnesses


       1
           Carter is a defendant to the action. He has not, however, filed any brief in
                                                2
reported seeing four black males in a black, four-door car circle the area and leave the

scene of the shooting at a high rate of speed. The officers who responded to the shooting

expected that a retaliatory shooting would occur that evening.

       Later that evening, five individuals, including Appellee McKoy and Carter, were

together on a street in Linden. McKoy’s girlfriend, Laura Diaz, was sitting in her car, a

black Honda. The other four individuals were standing on the street. A grey minivan

drove by and fired four shots at the Honda. The individuals who were standing on the

street got into the Honda, and, with Carter driving, took off at a high rate of speed.

       A 911 caller who heard the shots reported seeing four black males leave the scene

in a black, four-door car. Three police cars—including one driven by Appellant Officer

Mohr and another driven by Appellant Officer Edgar—pursued the black Honda. Edgar,

whose car was in the lead, turned on his lights and sirens, signaling the Honda to pull

over. Carter did not pull over, and instead continued driving.

       Carter eventually drove up onto a curb, pinning the Honda between a low retaining

wall and a parked van. Edgar and Mohr parked their patrol cars behind and to the side of

the Honda, blocking it, and approached on foot. Edgar approached the driver’s side

window with his firearm drawn and told the occupants to turn off the car and show their

hands. Instead of obeying, Carter continued to operate the Honda, driving it backward

and forward. Edgar and Mohr shot the Honda approximately four times, and one of those

bullets struck McKoy in the back.


connection with this appeal.
                                              3
       The parties’ accounts of the incident diverge in certain respects. Appellants, for

example, assert that Edgar was informed at the scene of the first shooting that “Face”—

i.e., Carter—was a suspect in the shooting. They also assert that Edgar previously had

encounters with Carter in Linden, recognized Carter as the driver of the Honda, and

believed that Carter, while driving the Honda, was attempting to flee from the police.

       According to Appellants, when Edgar stood alongside the driver’s side window

and pointed his gun at Carter, Carter began to laugh at him, shifted the Honda into

reverse, and then shifted the Honda back into drive. Appellants contend that Carter used

the Honda to assault Edgar by driving toward Edgar and striking him in the left knee with

the left-front wheel of the car.2 As a result, Edgar immediately shot at Carter. Carter then

shifted the Honda into reverse and drove toward Mohr, who was able to get out of the

way without being hit. When the Honda moved forward again, toward Edgar, Mohr fired

his gun. When the Honda’s brake lights flashed, both Edgar and Mohr feared that Carter

would attempt to strike either or both of them with the car. Edgar fired another bullet at

the Honda, which sped away.

       McKoy offers a different account of the events underlying the incident. For

instance, he disputes that Edgar was aware that Carter was a suspect in the first shooting.

He noted before the District Court that the officers who investigated that shooting wrote

incident reports, none of which mentioned Carter—as either “Face” or Carter— in any



       2
        The District Court noted that Carter was charged with and pleaded guilty to
aggravated assault in connection with this incident.
                                             4
respect. McKoy also provides a markedly different account of the shooting that lies at the

core of this appeal. At their respective depositions, McKoy, Carter, and two of the

Honda’s other occupants testified that Carter never hit Edgar with the car, nor drove it at

Mohr. McKoy testified Carter, after pinning the Honda between the retaining wall and

the parked van, kept the Honda in neutral, allowing it to roll approximately one to three

feet backwards. He then shifted the car into drive and turned the wheel to clear the

parked van. According to McKoy, the Honda was moving slowly and Carter was

maneuvering it in an attempt to escape. Four of the car’s occupants testified that the

officers fired shots at the back of the Honda as it drove away from the officers.

       McKoy brought this action pursuant to 42 U.S.C. § 1983 in the District Court,

alleging that Appellants used excessive force when they shot at the Honda and, in so

doing, shot him in the back.3 Appellants moved for summary judgment in their favor and

against McKoy, arguing that they are entitled to qualified immunity. The District Court

denied that motion, concluding that disputed material facts prevented the District Court

from immediately determining whether, as a matter of law, Appellants’ use of force was




       3
         McKoy also raised various other causes of action against Edgar, Mohr, Carter,
and other defendants. The District Court dismissed the defendant Michael Boyle from the
action, and later entered summary judgment against McKoy and in favor of the
defendants Guirlene Diaz, City of Linden, Linden Police Department, Paul Zack,
“Kaulfers,” and “Barwick.” It appears that the only claims remaining in the action are set
forth in Count I (a negligence claim asserted against Carter), Count III (an excessive force
claim asserted against Edgar and Mohr), and Count IX (insofar as it is construed as an
excessive force claim asserted against Edgar and Mohr). This appeal only involves the
excessive force claims.
                                             5
objectively reasonable. (See J.A. 18 (“[M]aterial issues of fact must be resolved by a jury

before [the District Court] can determine the reasonableness of the officers’ conduct.”).)

       Appellants filed a notice of appeal and the Clerk of this Court ordered the

parties—i.e., Edgar and Mohr, and McKoy— to file written submissions related to this

Court’s jurisdiction to review a non-final order of the District Court. Those parties filed

letters, and the Clerk directed them to brief the jurisdictional issue before this panel.

                                               II.

       We must determine as a threshold matter whether we have jurisdiction to hear this

appeal. As a general rule, we only have jurisdiction of “final decisions” of district courts.

See 28 U.S.C. § 1291. “[I]nterlocutory appeals—appeals before the end of district court

proceedings—are the exception, not the rule.” Johnson v. Jones, 515 U.S. 304, 309

(1995).

       An exception to the general rule applies, however, for certain denials of qualified

immunity. This exception arises under the collateral order doctrine. See Mitchell v.

Forsyth, 472 U.S. 511, 525-26 (1985). Under the collateral order doctrine, “an

interlocutory order of a district court may be treated as a ‘final decision’ if it: ‘(1)

conclusively determine[s] the disputed question, (2) resolve[s] an important issue

completely separate from the merits of the action, and (3) [is] effectively unreviewable on

appeal from a final judgment.’” Blaylock v. City of Philadelphia, 504 F.3d 405, 408 (3d

Cir. 2007) (quoting Johnson, 515 U.S. at 310). District Court orders denying qualified

immunity generally meet the first and third criteria. “The more difficult question is


                                                6
whether and to what extent the appealed order resolves an important issue completely

separate from the merits of the action.” Id. at 408-09 (internal quotation marks omitted).

This Court, when addressing that criterion, has determined that “denial of qualified

immunity falls within the collateral-order doctrine only to the extent the denial turns on an

issue of law.” In re Montgomery Cnty., 215 F.3d 367, 373 (3d Cir. 2000); see also Doe v.

Groody, 361 F.3d 232, 237 (3d Cir. 2004). If such denial turns on issues of disputed

facts, we lack jurisdiction of a related appeal. See Groody, 361 F.3d at 237.

       Here, the District Court denied Appellants’ motion for summary judgment after

determining the resolution of the motion was controlled by disputed material facts. The

District Court correctly stated that a determination of whether Appellants are entitled to

qualified immunity hinges on whether their actions were “reasonable in light of the facts

and circumstances available to the officer at the time.” (J.A. 14 (quoting Curley v. Klem,

499 F.3d 199, 207 (3d Cir. 2007)). The District Court then demonstrated how disputed

material facts controlled the resolution of Appellants’ motion. Under Appellants’ version

of the facts—wherein Carter drove the Honda toward Edgar, used the Honda to strike

Edgar, and drove the car toward Mohr, and it later appeared that he might drive the car

toward either Edgar or Mohr again—Appellants may have been justified to use deadly

force based on a concern for their own safety. However, under McKoy’s version of the

facts, the Honda posed little or no risk to their safety and Edgar and Mohr fired at the

back of the car as it drove away from them. The District Court determined that, viewing

the facts in the light most favorable to McKoy, a reasonable jury could believe his version


                                             7
of the incident and conclude that the officers’ use of force was unreasonable. (See J.A.

18 (“The competing versions of events—did Carter use the car as a weapon against the

officers who then used their guns to fire at the car, or did the officers fire at the car when

it ignored their commands and drove away—cannot be reconciled.”).)

       For the foregoing reasons, the District Court properly denied Appellants’ motion

for summary judgment, and thus properly denied them qualified immunity at this stage of

the proceedings. Under these circumstances, we do not have jurisdiction to consider their

interlocutory appeal. See Barton v. Curtis, 497 F.3d 331, 336 (3d Cir. 2007) (“Because

the District Court denied summary judgment on the ground that there is a material issue

of fact to be determined by the jury, the order . . . is one of the limited instances in which

this Court does not have jurisdiction to hear an appeal of summary judgment in a 42

U.S.C. § 1983 cause of action where the defendant is asserting qualified immunity.”).

       Appellants urge us to look beyond the facts explicitly considered by the District

Court, and to vacate the District Court’s decision and grant them qualified immunity in

consideration of all of the facts and circumstances attendant to their interactions with

McKoy and Carter. Such facts include those relating to the above-mentioned gang

activity and drive-by shootings. But it would be inappropriate to take such action.

Appellants contend that: (1) they believed that Carter was involved in a drive-by shooting

in the City of Linden; (2) Carter may have jeopardized Appellants’, other officers’, and

ordinary citizens’ safety by driving erratically while participating in that drive-by

shooting and by later attempting to evade the police; and (3) Carter ignored Appellants’


                                               8
commands, and attempted to drive away from Appellants when they surrounded his

vehicle. Even accepting Appellants’ contentions as true, we cannot say as a matter of law

that it was reasonable to fire at the back of the Honda.

       We recognize that “police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Graham v.

Connor, 490 U.S. 386, 397 (1989). For those and other reasons, however, questions

relating to Edgar’s and Mohr’s entitlement to qualified immunity are best decided by the

District Court, after all of the material factual disputes are properly resolved.

                                              III.

       For the foregoing reasons, we lack jurisdiction to consider this interlocutory

appeal.




                                               9
