                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-2066
                                   ___________

Song Cha Flannery; James Flannery;     *
Patricia J. Young; Keya Young; Keicha *
Slayton; Kevin Slayton,                *
                                       *
                    Appellees,         * Appeal from the United States
                                       * District Court for the Eastern
       v.                              * District of Arkansas.
                                       *
Dennis Hyde, Chief of Police Paragould *      [UNPUBLISHED]
Police Department; Carlon Chipman;     *
Larry Bennett; Scott Chamberlain; City *
of Paragould, Arkansas,                *
                                       *
                    Appellants.        *
                                  ___________

                             Submitted: January 10, 2000

                                 Filed: January 19, 2000
                                  ___________

Before RICHARD S. ARNOLD, FAGG, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.

       Song Cha Flannery, James Flannery, Patricia J. Young, Keja Young, Keicha
Slayton, and Kevin Slayton brought this 42 U.S.C. § 1983 action asserting violations
of their Fourth Amendment rights after Paragould police officers Carlon Chipman,
Larry Bennett, and Scott Chamberlain searched their homes in the middle of the night
without a warrant. Although the plaintiffs consented to the searches, they claim they
did not consent voluntarily. The defendants moved for summary judgment asserting
they are entitled to qualified immunity. The district court denied the motion,
concluding the individual defendants were not entitled to qualified immunity as a matter
of law because the reasonableness of the searches turned on the voluntariness of
consent, which the parties disputed. The court also found a genuine issue of material
fact about whether the City of Paragould had a custom or policy of violating plaintiffs'
rights. On appeal, the appellants challenge the plaintiffs' version of the facts as stated
in their affidavits and contend the affidavits do not create a material issue of fact for
trial. Our limited jurisdiction to review the denial of summary judgment based on
qualified immunity does not extend to this evidentiary issue, however. See Johnson v.
Jones, 515 U.S. 304, 307, 313 (1995); McCaslin v. Wilkins, 183 F.3d 775, 778 (8th
Cir. 1999). The appellants also make legal arguments based on the factual assumption
that the plaintiffs voluntarily consented to the searches. Without resolving the
evidentiary issue, we cannot reach the legal ones. We thus dismiss the appeal.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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