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

                                                                            FILED
                                                                         January 30, 2008

                                       No. 07-10353                   Charles R. Fulbruge III
                                                                              Clerk

RANDALL LING

                                                  Plaintiff–Appellee
v.

DEMARCUS L BANDA, in his official and individual capacities; WILLIAM L
MOTT, in his official and individual capacities

                                                  Defendants–Appellants



                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:05-CV-1754


Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Officers Demarcus L. Banda and William L. Mott (“Appellants”) seek a
reversal of the district court’s denial of their summary judgment motions for
qualified and official immunity. Because we find that Appellants’ arguments in
this interlocutory appeal effectively constitute challenges to the factual
sufficiency of the evidence and do not present legal issues, we dismiss for want
of jurisdiction.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10353

I. BACKGROUND
         On the night of September 6, 2003, Glen L. Shaw, an officer with the
Garland Police Department, observed Randall Ling speeding on his motorcycle
and signaled for him to pull over. Ling instead led Shaw on a seven-minute
high-speed pursuit. Officers Mott and Banda were dispatched to assist and
joined the pursuit.
         Eventually, Ling ended the chase by pulling over to the side of the road
and turning off his motorcycle. Despite the fact that Ling thereupon raised his
hands to surrender, Shaw tackled Ling to the ground and physically attacked
him. Shaw allegedly grabbed Ling’s helmet and struck Ling repeatedly in the
face through the opening on the front of the helmet. One of the blows caused a
wound above Ling’s left eye that eventually sent Ling to the hospital and
required six stitches.1
         Shortly after Shaw tackled Ling, Banda and Mott arrived on the scene to
assist Shaw. When Banda arrived, he sat on Ling’s lower back while Ling was
face down. Banda yelled several times for Ling to give him his hands. Ling
asserts that he did not resist arrest in any way during this time period and was
simply laying helpless on his stomach with his hands trapped beneath him.
According to Ling, he did not know that Banda and Mott were trying to get his
hands until “the very, very, very end,” and that he stated “I can't. I can't” in
response to Banda’s requests for his hands. Despite his submission, Ling alleges
that he felt other areas of his body being punched and kicked while Shaw was
assaulting his head and upper body. According to Ling, although he did not see
Banda or Mott physically strike him, given “the relative positions of Shaw, Ling,
Banda and Mott, only Mott or Banda could have administered these blows.”



         1
             It is undisputed that Shaw delivered this blow before Banda and Mott arrived on the
scene.

                                                 2
                                       No. 07-10353

After approximately thirty seconds, the officers handcuffed Ling and placed him
under arrest.
       On September 19, 2003, Ling filed an internal affairs complaint against
Shaw, Banda, and Mott, which resulted in the suspension of Shaw for fifteen
days without pay.         On November 18, 2003, the Texas Rangers began an
investigation of the incident. Following that investigation, Shaw was charged
with assault, pleaded guilty, and was fired. Banda and Mott were also fired
after they made inconsistent statements during the internal investigation. Mott,
however, was later reinstated after appealing his termination.
       Ling thereafter brought suit against Shaw, Banda, Mott, the City of
Garland, and the Chief of Police Mitch Bates, asserting causes of action for
violation of constitutional rights, § 1983 claims against the individual
Defendants, and state law claims of assault, battery, intentional infliction of
emotional distress, and negligence. Pursuant to motions to dismiss, the district
court dismissed several of Ling’s causes of action; thus, with respect to Banda
and Mott, only Ling’s § 1983 claims and his state law claims for intentional
infliction of emotional distress and negligence remained.2 Banda and Mott
thereafter filed motions for summary judgment on these remaining claims,
asserting that qualified immunity barred Ling’s § 1983 claims and the state
doctrine of official immunity barred Ling’s state law claims. The district court
denied Banda’s and Mott’s motions for summary judgment on all claims except
Ling’s § 1983 claim for failure to disclose. Banda and Mott now appeal.
II. DISCUSSION
       Although a district court’s denial of a defendant’s motion for summary
judgment “is ordinarily not immediately appealable, . . . the denial of a motion

       2
          The § 1983 claims against Banda and Mott consisted of: (1) an excessive force claim;
(2) a failure to intervene claim for Banda’s and Mott’s failure to intervene and stop Shaw’s
attack; and (3) a failure to disclose claim for Banda’s and Mott’s alleged attempt to “cover-up”
the incident by lying about seeing Shaw strike Ling.

                                               3
                                  No. 07-10353

for summary judgment based upon qualified immunity is a collateral order
capable of immediate review.” Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.
2004) (en banc). Our jurisdiction on appeal, however, is “significantly limited”
and “extends to such appeals only ‘to the extent that [the denial of summary
judgment] turns on an issue of law.’” Id. (quoting Mitchell v. Forsyth, 472 U.S.
511, 530 (1985)) (alteration in original).    Thus, on appeal, this Court has
jurisdiction to review “the purely legal question whether a given course of
conduct would be objectively unreasonable in light of clearly established law.”
Id. at 347. However, “[w]here the district court has denied summary judgment
on the ground that material issues of fact exist as to the plaintiff’s claims, this
court lacks jurisdiction to review the court’s determination that a genuine fact
issue exists.” Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). In other
words, “we cannot challenge the district court’s assessments regarding the
sufficiency of the evidence–that is, the question whether there is enough
evidence in the record for a jury to conclude that certain facts are true.” Kinney,
367 F.3d at 347. Thus, where a defendant appeals the denial of its motion for
summary judgment on the basis of qualified immunity, “the public official must
be prepared to concede the best view of the facts to the plaintiff and discuss only
the legal issues raised by the appeal.” Gonzales v. Dallas County, 249 F.3d 406,
411 (5th Cir. 2001).
      Although Appellants purport to assert legal issues in this appeal,
Appellants’ arguments are in essence challenges to the factual sufficiency of the
evidence, and we, therefore, lack jurisdiction to consider this appeal. Appellants
do not “concede the best view of the facts to the plaintiff and discuss only the
legal issues raised by the appeal.” Id. Instead, Appellants essentially assert
that their conduct was objectively reasonable under their version of the facts.
Appellants do not concede that Ling was helpless and not resisting arrest, nor
do they concede that the alleged force used by them against Ling consisted of

                                        4
                                       No. 07-10353

kicks and punches to the lower portion of Ling’s body. Rather, Appellants’
claims rely on their assertions that Ling “was refusing to surrender his hands”
and the force they used against Ling was “little more than kneeing a suspect in
the back to get him to the ground to effect arrest.” If Ling was in fact helpless
and obviously not resisting arrest–as Ling asserts–Ling could not have
constituted any real or perceived threat that would have justified Banda’s and
Mott’s alleged kicks and punches to Ling’s lower body or their failure to
intervene and stop Shaw’s attack. This is clearly true even though Ling failed
to produce his hands from underneath him in response to Banda’s repeated
orders.3    Thus, Appellants’ arguments that their actions were objectively
reasonable depend on the version of the facts the jury ultimately believes.
Accordingly, as the district court found, there is a material fact issue, which
precludes our jurisdiction.
       Appellants’ appeal of the district court’s denial of summary judgment on
the basis of official immunity fails for the same reason. Texas’ law of official
immunity “is substantially the same as federal immunity law,” Cantu v. Rocha,
77 F.3d 795, 808 (5th Cir. 1996), and “[t]his court has held that orders denying
official immunity under Texas law are immediately appealable to the same
extent as denials of qualified immunity under federal law.” Kinney, 367 F.3d at
346 n.7. Because Appellants’ arguments regarding official immunity are the
same as its arguments regarding qualified immunity, we lack jurisdiction to
consider Appellants’ claims of official immunity.4


       3
         For this reason, even if Appellants had accepted Ling’s version of the facts as true on
appeal, legal arguments regarding the objective reasonableness of Banda’s and Mott’s conduct
would have certainly failed.
       4
         Appellants do raise, for the first time on appeal, the legal argument that they are
entitled to official immunity on Ling’s claim that their alleged “cover-up” of the incident
constituted intentional infliction of emotional distress. Banda and Mott assert that such a
“cover-up” cannot constitute intentional infliction of emotional distress under Texas law.
Although such an argument would ordinarily be reviewable, see Cantu, 77 F.3d at 810, neither

                                               5
                                       No. 07-10353

III. CONCLUSION
       For the foregoing reasons, this appeal is DISMISSED FOR WANT OF
JURISDICTION.




Banda nor Mott presented this argument to the district court as a basis for official immunity,
and, thus, this argument is waived. Lemaire v. La. Dept. of Transp. & Dev., 480 F.3d 383, 387
(5th Cir. 2007) (“[A]rguments not raised before the district court are waived and cannot be
raised for the first time on appeal.”).

                                              6
