          United States Court of Appeals
                      For the First Circuit


No. 12-1109

              CAMILA M. CAMPOS, Individually, and as
          Administratrix of the Estate of Andre Martins,

                       Plaintiff, Appellee,

                                v.

          CHRISTOPHER VAN NESS, Yarmouth Police Officer;
                       TOWN OF YARMOUTH, MA,

                     Defendants, Appellants.


           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Edward F. Harrington, U.S. District Judge]


                              Before

                      Howard, Circuit Judge,
                   Souter,* Associate Justice,
                    and Stahl, Circuit Judge.


     Leonard H. Kesten, with whom Deidre Brennan Regan and Brody,
Hardoon, Perkins & Kesten, LLP were on brief, for appellants.
     Paul F. Leavis, with whom Deborah M. Santello and Leavis &
Rest, P.C. were on brief, for appellee.


                          April 1, 2013



     *
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
           STAHL, Circuit Judge. After a vehicle pursuit during the

early morning hours of July 27, 2008, Officer Christopher Van Ness

of the Yarmouth, Massachusetts Police Department shot and killed

Andre Martins.   Plaintiff-appellee Camila Campos, individually and

as administratrix of Martins's estate, brought this civil rights

action against defendants-appellants Van Ness and the Town of

Yarmouth under 42 U.S.C. § 1983 and Mass. Gen. Laws ch. 12, § 11I.

Defendants-appellants filed a motion for summary judgment, arguing

that Campos had not established that Van Ness's use of force

violated Martins's constitutional rights and that, in any event,

Van Ness was entitled to qualified immunity.     The district court

denied the motion without opinion.

           We have jurisdiction to entertain an interlocutory appeal

from a denial of summary judgment on qualified immunity grounds

"only if the material facts are taken as undisputed and the issue

on appeal is one of law."    Mlodzinski v. Lewis, 648 F.3d 24, 27

(1st Cir. 2011).     Thus, when the parties tell two different

stories, as is the case here, we typically must view the facts and

draw all reasonable inferences in the non-movant's favor.    Id. at

28.   In Scott v. Harris, 550 U.S. 372 (2007), however, the Supreme

Court carved out an exception to that rule, concluding that where

the non-movant's account "is blatantly contradicted by the record,

so that no reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling on a motion


                                -2-
for summary judgment," id. at 380; see also Statchen v. Palmer, 623

F.3d 15, 18 (1st Cir. 2010) (noting that a court need not accept

"incredible assertions" by the non-moving party).                      Defendants-

appellants attempt to fit this case within the Scott framework,

claiming       that    Campos's   description    of   the    shooting     is    "so

discredited by the record that no reasonable jury could believe

her" and urging us to decide the legal question of immunity based

largely on Van Ness's account.

               The district court here unfortunately exercised its right

not to explain the basis for its denial of summary judgment.                    See

Camilo-Robles v. Hoyos, 151 F.3d 1, 8 (1st Cir. 1998).                           We

therefore "must perform the equivalent of an archeological dig and

endeavor to reconstruct the probable basis for the district court's

decision."       Id.     As we explain below, that process leads us to

conclude that this case is distinguishable from Scott and to assume

that the district court denied the motion on the ground that there

remains    a    genuine    dispute   of    material   fact   as   to    the    exact

circumstances of the shooting, which must be resolved by a jury.

               On the night in question, at around 1:00 a.m., Martins

was driving through Yarmouth in a black Lincoln with Campos in the

passenger seat.        Van Ness, who claims to have observed the Lincoln

traveling "at a high rate of speed," began following the car in his

police cruiser.           Campos maintains that Martins did not begin

speeding until he noticed the cruiser behind him and, even then,


                                          -3-
was driving "fast but not really fast."      With Van Ness in pursuit,

Martins ended up on Baxter Avenue and pulled onto the front lawn of

a house, in an attempt to make a u-turn and avoid a second officer,

whose cruiser was blocking both lanes of Baxter Avenue ahead of

Martins. Van Ness followed Martins onto the Baxter Avenue lawn and

made contact with the left rear quarter panel of the Lincoln with

his cruiser. The Lincoln slid across the grass and came to a stop.

According    to   an   accident   reconstruction   report   that   Campos

commissioned,1 the two vehicles wound up almost parallel, facing

each other, on the lawn.          The Lincoln's front end was pointed

toward Baxter Avenue and slightly toward the driver's side door of

the cruiser, and the cars' A-pillars2 were about 8.8 feet apart.

Van Ness got out of his cruiser and aimed his gun at the Lincoln.

            What happened next is hotly contested and was witnessed

only by Martins, Campos, and Van Ness.      Campos claims that Van Ness

positioned himself beside the Lincoln and shot Martins through the

driver's side window.      She maintains that Martins was trying to

back up the car when Van Ness fired, but the car was not actually

moving.3    According to Campos, after Van Ness fired, the Lincoln


     1
        The report was prepared using measurements of the scene
taken by professional surveyors, observations of gouges in the
lawn, and post-incident photographs and video footage.
     2
        The A-pillars are the frontmost pillars on a car; they
separate the windshield from the front doors.
     3
        We do not agree with defendants-appellants that Campos's
initial statement to the police, when read in its entirety,

                                    -4-
began traveling forward but was not "anywhere close" to Van Ness

and did not strike him.

           Van   Ness,   on   the   other   hand,   says   he    immediately

positioned himself behind the open driver's side door of his

cruiser, pointed his gun at Martins, and ordered Martins to show

his hands. Within seconds, Martins began accelerating toward him.

Out of what Van Ness describes as a belief that his life was in

danger, he fired at the Lincoln as it passed by him.            Van Ness also

claimed, both in a statement prepared after the accident and during

his deposition, that the Lincoln's driver's side mirror struck the

left side of his body as the car moved past him, though he has not

mentioned that fact on appeal.

           A ballistics report, which Campos also commissioned,

states that "Van Ness was positioned to the side of the open

driver's window of the Martins vehicle" when he fired his first

shot.   The bullet struck Martins on the left side of his back and

exited through his chest.      Van Ness fired two more shots through

the Lincoln's rear window.

           The accident reconstruction report does not specify when

those shots occurred or where Van Ness was positioned in relation

to the Lincoln when he fired them, but it does chart the Lincoln's

movement and likely speed from when it first stopped on the lawn


suggests that the Lincoln was actively backing up when Van Ness
fired, and we therefore do not find that it contradicts her
deposition testimony on this point.

                                    -5-
until it reached its final position on Baxter Avenue after the

shooting.     According to the report, from its stopped position

facing Baxter Avenue and the cruiser, the Lincoln drove past the

cruiser,    with   the   Lincoln's   driver's   side   door   passing   the

cruiser's (open) driver's side door, at a speed of no more than

seven to thirteen miles per hour.4         The expert found no damage to

the cruiser door, and the report therefore concludes that, because

Van Ness claimed to have been standing behind that door when the

Lincoln passed by him, his testimony that the Lincoln struck his

left side was "inconsistent with the collected physical evidence."

            The Lincoln ended up on Baxter Avenue, where it came to

a stop.     Campos exited the car screaming.      Officers at the scene

administered first aid to Martins, but he was pronounced dead at

Cape Cod Hospital at 1:50 a.m.        The cause of death was a gunshot

wound to Martins's torso, which perforated his heart and lung.

            While defendants-appellants dispute several aspects of

Campos's story, they are primarily asking us to set aside two

claims she has made that are relevant to the issue of qualified

immunity: (1) that Martins's car was not moving when Van Ness fired


     4
        As noted above, the accident reconstruction report states
that the cars began in a stopped position on the lawn, with their
A-pillars 8.8 feet apart. When the front bumper of the Lincoln
passed the leading edge of the open cruiser door, the distance
between the A-pillars was 6.9 feet, and the Lincoln was traveling
no more than 7 miles per hour. When the driver's side mirror of
the Lincoln passed the leading edge of the open cruiser door, the
distance between the cars' A-pillars was 4.6 feet, and the
Lincoln's speed was no more than 13 miles per hour.

                                     -6-
the fatal shot; and (2) that the car began moving only after that

point and did not move near Van Ness.         Her testimony on those two

points, in defendants-appellants' view, contradicts the opinions of

her own accident reconstruction and ballistics experts.

          But the accident reconstruction report only charts the

Lincoln's speed and path of travel as it moved from a stopped

position on the lawn, past the police cruiser, and onto Baxter

Avenue; it does not establish when, within that movement sequence,

Van Ness fired.     The reconstruction expert was apparently asked to

determine whether the Lincoln could have hit Van Ness, as Van Ness

claimed, and for that purpose, the expert explicitly used Van

Ness's testimony that he was standing behind the cruiser's open

driver's side door when the Lincoln traveled past him.              Nowhere,

however, does the report mention Campos's account or attempt to

reconcile her story with Van Ness's to determine where Van Ness was

positioned   when   he   took   the   fatal   shot,   or   when   within   the

Lincoln's movement sequence he took it.5

          At first glance, the ballistics report seems to pose more

of a problem for Campos, since it states that "at the time that

Officer Van Ness fired his service pistol, Mr. Martin's [sic]



     5
        The report does appear to contradict Campos's deposition
claim that the cruiser was positioned to "the side rear" of the
Lincoln when the cars came to a stop on the lawn, but that does not
necessarily undermine the rest of her testimony, since the
operative question is where Van Ness was standing, and whether the
Lincoln was moving toward him, when he fired the fatal shot.

                                      -7-
vehicle was traveling past the position of Officer Van Ness at a

rate of travel between 7 and 13 miles per hour."                           But that

conclusion is, according to the report itself, "[b]ased upon the

accident reconstruction" report (which accepted Van Ness's claim

that he was standing behind the cruiser door when the Lincoln drove

past him) and "Officer Van Ness's direct testimony that the vehicle

was traveling past him at the time he fired his service pistol."

The ballistics expert thus seems to have assumed the truth of Van

Ness's account and, under that set of facts, analyzed whether Van

Ness's use of force was reasonable (concluding that it was not).

The report does not address Campos's version of events, nor does it

indicate that Van Ness's telling is the only one corroborated by

the ballistics findings.6

               We are therefore a long way from the videotape in Scott

that       captured    the   car   chase   in    question   and   "quite    clearly

contradict[ed]" the plaintiff's account.               550 U.S. at 378.

               Campos's story does beg two questions, neither of which

we   need     answer    today,     because   defendants-appellants         have   not

properly put them before us.            The first is how the bullet entered



       6
         That the ballistics and accident reconstruction experts
both list Campos's interview with the Yarmouth Police Department as
one of the many pieces of information they relied on in forming
their opinions does not change our analysis. Viewing the reports
in the light most favorable to Campos, see Mlodzinski, 648 F.3d at
28, it is reasonable to infer from the absence of any discussion of
her account that the experts were not asked to compare it with Van
Ness's and determine which one was supported by the evidence.

                                           -8-
Martins's back if Van Ness was standing next to the driver's side

window of the Lincoln and the car was not moving when Van Ness took

the fatal shot.   Defendants-appellants did not raise this issue

below or on appeal and thus have not satisfied their "initial

responsibility of informing the district court of the basis for

[their] motion, and identifying those portions of 'the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any,' which . . . demonstrate the

absence of a genuine issue of material fact."     Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56).

That failure, in turn, deprived Campos of the opportunity to

demonstrate, "through submissions of evidentiary quality, that a

trialworthy issue persists."   Iverson v. City of Boston, 452 F.3d

94, 98 (1st Cir. 2006) (citing Celotex Corp., 477 U.S. at 322-24).7

          The second question is how two bullets ended up going

through the rear window of the car, given Campos's deposition

testimony that Van Ness fired all "[f]our or five shots" before the

Lincoln began moving.    Once again, however, the burden was on

defendants-appellants to make this point before the district court,

and their failure to do so left Campos with no opportunity to



     7
        Though we need not decide the issue, we do note that Campos
said in her statement to the police that Martins was trying to back
up the car when Van Ness fired the fatal bullet. Martins might
therefore have been turned away from the driver's side window when
Van Ness shot, which could explain how the bullet entered the left
side of his back under Campos's version of the events.

                                -9-
respond.   See Celotex Corp., 477 U.S. at 322-24.       Defendants-

appellants' belated invocation of the issue for the first time at

oral argument was insufficient, particularly given that their brief

describes Campos as having testified that Martins's car was stuck

only when Van Ness fired the fatal shot and "began moving . . .

after that first shot" (emphasis added).   See Constructora Andrade

Gutiérrez, S.A. v. Am. Int'l Ins. Co. of P.R., 467 F.3d 38, 47 (1st

Cir. 2006) ("We generally do not address arguments made for the

first time during oral argument, especially when the arguments are

contrary to the arguments made in the briefs.").

           In short, defendants-appellants have not convinced us

that Campos's story is so "blatantly contradicted by the record

. . . that no reasonable jury could believe it."   Scott, 550 U.S.

at 380. Nor have they attempted, in the alternative, to accept all

of Campos's facts and inferences as true and "argue that even on

[Campos's] best case, they are entitled to immunity."   Mlodzinski,

648 F.3d at 28.8    We therefore dismiss the appeal for lack of

jurisdiction.   See id.



     8
        Defendants-appellants have suggested that "[w]hether the
[Lincoln] was moving before or shortly after the shot was fired is
immaterial for purposes of qualified immunity." They have not,
however, elaborated on that statement or explained why this case
(on the facts as Campos has presented them) is analogous to the
Eleventh Circuit and Supreme Court cases they cite. "It is not
enough merely to mention a possible argument in the most skeletal
way, leaving the court to do counsel's work, create the ossature
for the argument, and put flesh on its bones." United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

                               -10-
