     Case: 13-30980      Document: 00512599982         Page: 1    Date Filed: 04/17/2014




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


                                      No. 13-30980
                                                                                FILED
                                                                            April 17, 2014
                                                                           Lyle W. Cayce
ERIC DRESSNER,                                                                  Clerk

                                                 Plaintiff - Appellee
v.

ROBERT J. CROWE, in his official capacity as former Sheriff of Washington
Parish; RANDY SEAL, in his official capacity as Sheriff of Washington
Parish, also known as Country Seal; TIM EVANS, Individually and in his
capacity as Washington Parish Sheriff’s Deputy,

                                                 Defendants - Appellants




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                              USDC No. 2:13-CV-81


Before HIGGINBOTHAM, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Following a confrontation between Plaintiff Eric Dressner (“Dressner”)
and another man not a party hereto, Deputy Tim Evans (“Evans”) arrested
Dressner and the other man for aggravated assault. Dressner sued Evans, as
well as Robert Crowe and Randy Seal in their official capacities (former and
current sheriffs of Washington Parish, respectively, hereinafter referred to as


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-30980
“the Sheriff Defendants”), under 42 U.S.C. § 1983 for false arrest. The district
court, citing disputed fact questions, denied the Defendants’ motions for
summary judgment premised on qualified immunity. They seek interlocutory
review. We DISMISS.
       In limited circumstances, we may consider an interlocutory appeal of a
denial of qualified immunity at the summary judgment stage. See Cruz-Gomez
v. Rivera-Hernandez, 444 F.3d 29, 33–34 (5th Cir. 2006). However, a district
court’s rejection of the qualified immunity defense cannot be the subject of an
interlocutory appeal where the court determines that the application of the
defense involves a genuine issue of material fact. Id.
       Here, there is clearly a genuine issue of fact central to the question of
whether Evans is entitled to qualified immunity.                  According to Evans,
Dressner and the other individual simultaneously pointed weapons at one
another.    According to Dressner, however, he unholstered his gun while
standing on his property in response to the other party waving a knife at him
while advancing towards him. Taking the facts in the light most favorable to
Dressner, a jury could conclude that there was no probable cause to arrest him
for   assault   under    “the   totality       of   the   facts   and    circumstances
within . . . [Evans’s] knowledge at the moment of arrest.” See Lockett v. New
Orleans City, 607 F.3d 992, 998 (5th Cir. 2010) (emphasis removed). The
differences in fact affect the outcome such that we lack jurisdiction over
Evans’s appeal. Cruz-Gomez, 444 F.3d at 33–34.
       As to the Sherriff Defendants, the district court did not expressly address
their separate “municipal liability” contention. Even though Dressner did not
oppose the motion to dismiss those parties, and did not brief the issue on
appeal, we do not have jurisdiction to interlocutorily review a summary
judgment denial of qualified immunity with respect to officers sued in their
official capacity. See Roberts v. City of Shreveport, 397 F.3d 287, 291 (5th Cir.
                                           2
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                                  No. 13-30980
2005). The Sheriff Defendants are free to bring this issue to the district court’s
attention on remand.
      DISMISSED and REMANDED.




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