                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JOSEPH PADGETT; DARLA PADGETT,            
              Plaintiffs-Appellees,
                                                  No. 08-16720
                v.
                                                    D.C. No.
A. CURTIS WRIGHT,
             Defendant-Appellant,              5:04-cv-03946-JW
                                                  ORDER AND
               and
                                                    OPINION
BRIAN LOVENTHAL; LISA M. RICE,
                       Defendants.
                                          
         Appeal from the United States District Court
           for the Northern District of California
           James Ware, District Judge, Presiding

                  Submitted October 5, 2009*
                   San Francisco, California

                    Filed November 20, 2009

     Before: Mary M. Schroeder and Marsha S. Berzon,
    Circuit Judges, and Lyle E. Strom,** District Judge.

                       Per Curiam Opinion




   *The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
   ** The Honorable Lyle E. Strom, Senior United States District Judge
for the District of Nebraska, sitting by designation.

                                15423
                    PADGETT v. LOVENTHAL                 15425




                         COUNSEL

Todd H. Master, Redwood City, California, for the defendant-
appellant.

M. Jeffery Kallis, Andrew V. Stearns, and Steven M. Berki,
San Jose, California, for the the plaintiffs-appellees.


                          ORDER

  The mandate in this case and the opinion filed on October
14, 2009, are hereby withdrawn. The opinion filed concur-
rently with this order will replace the October 14, 2009, opin-
ion, and mandate shall issue forthwith.


                         OPINION

PER CURIAM:

  A. Curtis Wright appeals the district court’s denial of his
motion for summary judgment on the ground of qualified
immunity in this § 1983 action. After this qualified immunity
appeal was filed, the case went to trial, and a jury found
Wright liable to appellee Joseph Padgett for deprivation of his
First Amendment rights. We dismiss this appeal.

  [1] Generally, denials of summary judgment are not appeal-
able. See, e.g., Jones-Hamilton Co. v. Beazer Materials &
Servs., Inc., 973 F.2d 688, 693-94 (9th Cir. 1992). The
Supreme Court has recognized a narrow exception for a dis-
15426                   PADGETT v. LOVENTHAL
trict court’s denial of qualified immunity. See Mitchell v. For-
syth, 472 U.S. 511, 530 (1985). The reasoning behind this
departure from the general rule is that qualified immunity is
“an immunity from suit rather than a mere defense to liability;
. . . it is effectively lost if a case is erroneously permitted to
go to trial.” Id. at 526. Although a pretrial appeal of an order
denying qualified immunity normally divests the district court
of jurisdiction to proceed with trial, the district court may cer-
tify the appeal as frivolous and may then proceed with trial,
as the district court did here.1 See Chuman v. Wright, 960 F.2d
104, 105 (9th Cir. 1992).

   [2] Wright’s interest in immediately appealing the district
court’s denial of qualified immunity was an interest in avoid-
ing “stand[ing] trial or fac[ing] the other burdens of litiga-
tion.” Mitchell, 472 U.S. at 526. Because the trial has already
occurred, there is no longer any compelling reason for us to
deviate from the general rule preventing us from reviewing
denials of summary judgment. “Since the appeal was taken
before the trial, the only ruling that it could challenge was the
ruling that [Wright] must stand trial . . . . Since all that was
at stake in the appeal was whether [Wright] must stand trial,
the trial mooted the appeal by eliminating the stake.” Chan v.
Wodnicki, 67 F.3d 137, 140 (7th Cir. 1995).

   It would be particularly inappropriate for us to hear this
appeal, as it focuses entirely on the threshold question of
whether a constitutional violation occurred. Wright’s opening
brief makes no argument as to whether he is entitled to quali-
fied immunity even if the facts shown by the plaintiffs make
out a violation of a constitutional right, as it fails to address
“whether the right at issue was ‘clearly established’ at the
time of defendant’s alleged misconduct.” Pearson v. Calla-
han, 129 S. Ct. 808, 816 (2009) (quoting Saucier v. Katz, 533
  1
   Wright applied to this court for a stay of trial. We denied his motion
without ruling on the merits of his appeal.
                        PADGETT v. LOVENTHAL                        15427
U.S. 194, 201 (2001)).2 By now, however, a jury has found
that Wright did violate Joseph Padgett’s constitutional rights.
The denial of a motion for summary judgment is usually not
reviewable even after a full trial on the merits. See, e.g., Price
v. Kramer, 200 F.3d 1237, 1243 (9th Cir. 2000). There is an
exception to this rule where the denial of summary judgment
turned on a purely legal question, rather than a disputed fac-
tual issue that went to the jury. See Pavon v. Swift Transp.
Co., Inc., 192 F.3d 902, 906 (9th Cir. 1999). This exception
is not here applicable, as the jury verdict concerned precisely
the issue that was the subject of Wright’s qualified immunity
appeal — whether Wright violated Padgett’s First Amend-
ment rights.

   [3] Wright can obtain review of the jury verdict by appeal-
ing it once final judgment is entered. We will not entertain a
prejudgment qualified immunity appeal asking us to decide
the same question a jury has already decided. We thus dismiss
the appeal.

   [4] The Padgetts ask us to sanction Wright for filing a friv-
olous appeal. Fed. R. App. P. 38 (“[I]f a court of appeals
determines that an appeal is frivolous, it may, after a sepa-
rately filed motion or notice from the court and reasonable
opportunity to respond, award just damages and single or dou-
ble costs to the appellee.”). Because their request was not sep-
   2
     Wright’s belated attempt to argue, in a reply brief, that a reasonable
public official would not have thought Wright’s conduct was unconstitu-
tional does not remedy this problem. This court “will not ordinarily con-
sider matters on appeal that are not specifically and distinctly raised and
argued in appellant’s opening brief.” Int’l Union of Bricklayers & Allied
Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d
1401, 1404 (9th Cir. 1985). Moreover, Wright did not argue in his memo-
randum of points and authorities supporting his motion for summary judg-
ment before the district court that a reasonable public official would not
have thought his conduct was unconstitutional. “We will not . . . review
an issue not raised below unless necessary to prevent manifest injustice.”
Id.
15428               PADGETT v. LOVENTHAL
arately filed, we deny the request. See Higgins v. Vortex
Fishing Sys., Inc., 379 F.3d 701, 709 (9th Cir. 2004) (“A
request made in an appellate brief does not satisfy Rule 38
. . . .” (quoting State of Cal. Emp. Dev. v. Taxel (In re Del
Mission Ltd.), 98 F.3d 1147, 1154 (9th Cir. 1996))).

  The appeal is DISMISSED.
