               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 98-41382
                         Conference Calendar



JUAN ANTONIO MONTOYA,

                                             Plaintiff-Appellee,

versus

CITY OF BROWNSVILLE ET AL.,

                                             Defendants,

KIRK MASSEY, Police Officer,

                                             Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. B-97-CV-112
                      --------------------

                           August 27, 1999

Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

     Kirk Massey appeals the district court’s denial of his

motion for summary judgment in a civil rights lawsuit filed by

Juan Antonio Montoya.    The motion argued that Massey was entitled

to qualified immunity.   The district court held that, under

Montoya’s version of events, Massey had arrested him without

probable cause, after he had expressed an opinion about police


     *
        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that this opinion should not be published and is not precedent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.
R. 47.5.4.
                            No. 98-41382
                                 -2-

officers that Massey did not like.

     We have jurisdiction to review the denial of a motion for

summary judgment based on qualified immunity only to the extent

the district court’s denial turned on issues of law.     Mitchell v.

Forsyth, 472 U.S. 511, 528 (1985).   Although we lack jurisdiction

to review a district court’s determination that there exist

genuine issues of fact, we do have jurisdiction to review a

determination that the issues are material.     Colston v. Barnhart,

146 F.3d 282, 284 (5th Cir.), cert. denied, 119 S. Ct. 618

(1998).   We accept the district court’s statement of the

genuinely disputed facts, and we conduct a de novo review of the

court’s conclusions about materiality.     Lemoine v. New Horizons

Ranch and Ctr., Inc., 174 F.3d 629, 634 (5th Cir. 1999).

     Whether a public official is qualifiedly immune depends on

two inquiries.   Harris v. Victoria Indep. Sch. Dist., 168 F.3d

216, 223 (5th Cir. 1999).   First, a defendant is entitled to

qualified immunity when a plaintiff has failed to allege the

violation of a clearly established constitutional right.     Id.

Second, a defense of qualified immunity will succeed if the

defendant’s conduct was objectively reasonable at the time in

light of clearly established law.    Id.   Massey insists that his

arrest of Montoya was objectively reasonable.

     If, as Montoya testified and the district court assumed,

Massey arrested him for asserting that police officers are

arrogant, Massey violated Montoya’s right to be free from arrest

without probable cause.   “The test for probable cause . . . is

whether, at the moment of arrest, the facts and circumstances
                             No. 98-41382
                                  -3-

within [the arresting officer’s] knowledge and of which he had

reasonably trustworthy information were sufficient to warrant a

prudent person in believing that [the arrestee] had committed or

was committing an offense.”    Harper v. Harris County, Tex., 21

F.3d 597, 601 (5th Cir. 1994).    In Montoya’s account of the

events, he had not been drinking on the day of his encounter with

Massey, and he exhibited no signs of intoxication.    If that is

true, Massey did not have probable cause to arrest Montoya for

public intoxication.

     Massey argues that there was probable cause to arrest

Montoya for failing to identify himself to an officer.    Montoya

contends that this argument was not raised in the district court

and is waived.   Massey’s argument does appear in the motion for

summary judgment, however.    Montoya also contends that he was

never asked to identify himself to Massey.    Montoya’s testimony

was that he refused to identify himself to another officer at the

detention facility only after Massey had arrested him and

transported him to the facility.    Under Montoya’s version, “at

the moment of the arrest,” Massey could not have had probable

cause to arrest him for an event that had not yet occurred.

Harper, 21 F.3d at 601.

     Because there is a genuine issue of material fact, the

denial of Massey’s motion for summary judgment is not appealable.

     APPEAL DISMISSED.
