                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-1810



FREDERICK P. HENRY,

                                               Plaintiff - Appellee,

          versus


ROBERT PURNELL,

                                             Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(CA-04-979-JFM)


Submitted:   November 24, 2004            Decided:   January 3, 2005


Before WILLIAMS, GREGORY, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


John F. Breads, Jr., Columbia, Maryland, for Appellant.     Eric M.
May, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Somerset County Deputy Sheriff Robert Purnell appeals the

district court’s order denying his motion for summary judgment in

Frederick   P.    Henry’s   42     U.S.C.   §    1983    (2000)   suit   alleging

excessive force during an arrest.           Purnell asserted in his motion

that he was entitled to qualified immunity.                     On appeal, Henry

alleges that this court lacks jurisdiction over this interlocutory

appeal.   We agree.

            In his complaint, Henry asserted that Purnell, mistakenly

believing Henry was fleeing from an arrest, shot Henry in the

elbow.    Purnell’s motion for summary judgment included Purnell’s

affidavit, which alleged that when Henry ran away as Purnell was

attempting to arrest him, Purnell “reached for [his] Taser.” As he

ran after Henry, Purnell “believed that [he] had unholstered [his]

Taser and was holding it in [his] hand.”                When he fired and heard

the sound of a gunshot, Purnell realized he had grabbed the wrong

weapon.       Purnell   argued      that,      because    he    reasonably   (but

mistakenly)      believed   that    he   was    acting     in   accordance   with

constitutional mandates, he was entitled to qualified immunity. In

response, Henry challenged Purnell’s allegations by noting that

(1) there is a marked difference between the two weapons carried by

Purnell, and (2) Purnell took approximately sixty seconds after

shooting Henry to claim that the shooting was accidental.




                                     - 2 -
            The district court denied Purnell’s motion. Although the

court determined that an accidental shooting would not give rise to

a   constitutional   claim,   the   court   noted   that    “Mr.   Purnell’s

assertions, both now and contemporaneously at the time of the

incident, that he had drawn the wrong weapon do not establish that

he is entitled to judgment as a matter of law.             These assertions

necessarily depend upon his credibility and therefore give rise to

a genuine dispute of material fact.”

            While interlocutory orders ordinarily are not appealable,

orders rejecting a defendant’s claim of qualified immunity are,

provided the denial rests on a purely legal determination that the

facts establish a violation of clearly established law. Johnson v.

Jones, 515 U.S. 304, 316-17 (1995); Mitchell v. Forsyth, 472 U.S.

511, 530 (1985).      However, “to the extent that the appealing

official seeks to argue the insufficiency of the evidence to raise

a genuine issue of material fact--for example, that the evidence

presented   was   insufficient   to   support   a   conclusion     that   the

official engaged in the particular conduct alleged--we do not

possess jurisdiction . . . to consider the claim.”             Winfield v.

Bass, 106 F.3d 525, 529-30 (4th Cir. 1997).         In other words, if the

official argues that the record evidence is insufficient to support

the facts as articulated by the district court, the reviewing court

lacks jurisdiction to entertain the appeal. Gray-Hopkins v. Prince

George’s County, 309 F.3d 224, 229 (4th Cir. 2002).


                                    - 3 -
          On appeal, Purnell argues that the record does not

support the district court’s conclusion that a factual dispute

exists regarding his intent, and that he is therefore entitled to

qualified immunity.*   Purnell’s argument, however, is not a legal

one, but instead challenges the district court’s factual findings.

We therefore lack jurisdiction over and dismiss the appeal.     We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                         DISMISSED




     *
      Purnell also argues that the district court did not find that
such a factual dispute existed.     We reject this argument.    The
district court found that Purnell’s “assertions [that he
inadvertently drew his gun] necessarily depend upon his credibility
and therefore give rise to a genuine dispute of material fact.”

                              - 4 -
