     Case: 11-50990     Document: 00511866038         Page: 1     Date Filed: 05/24/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 24, 2012

                                     No. 11-50990                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



KIRK H. SMITH,

                                                  Plaintiff - Appellee
v.

STEVEN SMITH, Police Officer, Badge #1459, Individually and in his official
capacity as a Police Officer with the City of El Paso Police Department; JOEL
HOYER, Sergeant, Badge #1573, Individually and in his official capacity as a
Police Officer with the City of El Paso Police Department; FRANCISCO P.
NUNEZ, JR., Sergeant, Badge #1584, Individually and in his official capacity
as a Police Officer with the City of El Paso Police Department; CRUZ
MORALES, Police Officer, Badge #2457, Individually and in his official
capacity as a Police Officer with the City of El Paso Police Department;
MICHAEL CORTEZ, Police Officer, Badge #2244, Individually and in his
official capacity as a Police Officer with the City of El Paso Police
Department,

                                                  Defendants - Appellants



                   Appeal from the United States District Court
                    for the Western District of Texas, El Paso
                             USDC No. 3:08-CV-147


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*


       *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
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                                   No. 11-50990

        Police officers appeal the denial of their motion for summary judgment, on
the grounds of qualified immunity. Because this appeal turns on a factual
dispute we DISMISS for lack of jurisdiction.
                                         I.
        On May 2, 2006, the El Paso Police Department deployed police officers to
Kirk Smith’s home after learning that Smith had menaced a pizza delivery
person. When officers knocked on Smith’s door, he appeared at a front window
to the home with a flashlight and a gun. One of the officers acted as if he were
going to shoot Smith until other officers moved into the potential line of fire.
The officers yelled through the door, instructing Smith to put the gun away and
come outside. Smith put his gun away, but refused to exit his home for some
time.
        Smith eventually exited his home carrying a can in one hand. As he
walked out of his home, he stooped down to pick something up off of the ground,
at which point the officers shot him with bean bag guns. Smith sustained
injuries for which he received treatment at a hospital.
        On April 30, 2008, Smith filed the instant action under 42 U.S.C. § 1983
in the United States District Court for the Western District of Texas.         His
complaint asserts that the officers violated his Fourth Amendment right to be
free from unreasonable search and seizure and excessive force. The officers
moved for summary judgment, arguing that they were entitled to qualified
immunity. The district court, citing numerous discrepancies in the parties’
respective factual accounts of the incident, denied the motion. The officers
appeal.




R. 47.5.4.

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                                  No. 11-50990

                                       II.
                                       A.
      Qualified immunity shields government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). On interlocutory appeals of
orders denying qualified immunity, we have jurisdiction to decide only whether
the facts assumed by the district court evince reasonableness on the part of the
government officials, not whether those facts are supported in the summary
judgment record. Brown v. Strain, 663 F.3d 245, 249-50 (5th Cir. 2011).
      Cognizant of this limitation on our jurisdiction, the officers go to great
lengths to justify why this appeal concerns the legal significance of the disputed
facts, and not whether those facts are supported in the record.          We are
unconvinced.
      The thrust of the officers’ argument on appeal is that firing bean bags at
Smith was reasonable because the officers reasonably believed at the time that
Smith was holding a gun, not a can. See Graham v. Connor, 490 U.S. 386, 396
(1989). As the officers concede, however, the reasonableness of that belief
depends on how clearly Smith displayed his hands and how cooperative Smith
was with the officers’ instructions as Smith was exiting his home. The district
court determined that these facts—the clarity with which Smith displayed his
hands and the extent of his cooperation with the officers’s instructions—were




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                                       No. 11-50990

disputed.1 We lack jurisdiction to review that critical determination. Brown,
663 F.3d at 249-50.
                                              B.
       The appellant officers also argue that appellants Joel Hoyer and Steven
Smith cannot be liable because they did not participate in the bean bag shooting
and were not in the immediate vicinity where the shooting occurred. This
argument, which is absent from the officers’ motion for summary judgment, is
raised for the first time on appeal. Accordingly, we will not consider it. See
Lofton v. McNeil Consumer & Specialty Pharm., 672 F.3d 372, 380-81 (5th Cir.
2012).
                                             III.
       For the foregoing reasons, we lack jurisdiction over this interlocutory
appeal.
                                                                              DISMISSED.




       1
          The district court’s order states that Victor Vela, who is no longer a party to this
action, could see that Smith held “a can in one hand and nothing in the other.” In other words,
there is record evidence that Smith’s hands were clearly displayed. The court’s order also
states that the record is unclear on “whether Plaintiff was in fact resistant to law
enforcement,” meaning there is some suggestion in the record that Smith cooperated with the
officers’ instructions.

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