                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2724
                        ___________________________

                             Fredrick Ernest Graham

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

 St. Louis Metropolitan Police Department; Sgt. Scego Unknown; Det. Matthew
Manley; Det. Unknown O’Toole; P.O. K. Castillo; Brandon Wyms; Shariste Grandberry

                            lllllllllllllllllllllDefendants

                               Det. Gregory Klipsch

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                            Submitted: April 16, 2019
                             Filed: August 13, 2019
                                 ____________

Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.
                              ____________

KELLY, Circuit Judge.

     Fredrick Graham was arrested on September 3, 2014. He sued under 42 U.S.C.
§ 1983 for alleged Fourth and Fourteenth Amendment violations committed in
connection with that arrest. The district court1 dismissed all claims except for
Graham’s claim that Detective Gregory Klipsch used excessive force in effectuating
the arrest. Klipsch then sought summary judgment on the basis of qualified immunity,
which the district court denied. Klipsch now appeals that order. We dismiss for lack
of jurisdiction.

                                            I

       For the purposes of this appeal, “we accept as true the facts that the district
court found were adequately supported, as well as the facts that the district court likely
assumed, to the extent they are not ‘blatantly contradicted by the record.’” Burnikel
v. Fong, 886 F.3d 706, 709 (8th Cir. 2018) (quoting Thompson v. Murray, 800 F.3d
979, 983 (8th Cir. 2015)). Accordingly, we draw the following background facts from
the district court’s summary judgment opinion.

       On the night in question, Klipsch and another officer were driving in an
unmarked car when they saw Graham walking alone in the middle of a deserted street
in a high crime area. Graham repeatedly looked over his shoulder, monitoring the
officers’ location, and pulled at his waistband. Klipsch believed, based on his
experience, that Graham was attempting to conceal a weapon. Graham walked up to
the front door of a house. The officers called out to him, identifying themselves as
police officers, and asked him if he lived there. Graham gave inconsistent answers
before running away from the house, throwing a pistol to the ground as he ran. The
officers ran after him and ordered him to stop. Klipsch told Graham that if Graham
did not stop running, then Klipsch would tase him. Graham kept running, and Klipsch
tased him. Graham fell to the ground, incapacitated. He lost consciousness. At some




      1
        The Honorable Audrey G. Fleissig, United States District Judge for the Eastern
District of Missouri.

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point, Klipsch tased him a second time. When Graham awoke he was on the ground
and four or five officers were asking him questions.

      The district court determined that the first time Klipsch tased Graham, Klipsch
did not use unconstitutionally excessive force. However, it concluded that “there is
a genuine issue of material fact as to whether Klipsch used excessive force in violation
of [Graham’s] constitutional rights by tasing him when he was on the ground after he
was incapacitated” and it denied Klipsch summary judgment on the basis of qualified
immunity. Klipsch appeals.

                                            II

        “An order denying qualified immunity can be immediately appealable despite
the fact that it is interlocutory.” Riggs v. Gibbs, 923 F.3d 518, 522 (8th Cir. 2019)
(quoting Mallak v. City of Baxter, 823 F.3d 441, 445 (8th Cir. 2016)). “Our
jurisdiction to consider an appeal of an order denying summary judgment on the basis
of qualified immunity is limited to the purely legal issue of whether the facts alleged
support a claim of violation of clearly established law.” Id. at 522–23 (quoting Berry
v. Doss, 900 F.3d 1017, 1021 (8th Cir. 2018)). Thus, “[i]f defendants are simply
arguing that the plaintiff offered insufficient evidence to create a material issue of fact
for trial, we lack jurisdiction.” Id. at 523 (cleaned up).

       Because Klipsch’s arguments all rest on his contention that the district court
erred in its determination that a genuine dispute of material fact exists as to whether
Graham was incapacitated when he tased Graham a second time, we lack jurisdiction
over this appeal. See Franklin v. Young, 790 F.3d 865, 867 (8th Cir. 2015). Klipsch
argues the district court erred because it “gave no consideration to Klipsch’s
undisputed testimony that although Graham had been ‘incapacitated’ by his first taser
burst, Graham was trying to get back up and continue to run until Klipsch tased him
a second time.” In doing so, Klipsch challenges the district court’s determination that,

                                           -3-
viewing the facts in the light most favorable to Graham, Graham was incapacitated
when Klipsch tased him a second time. But this determination is not blatantly
contradicted by the record, and analyzing the record to resolve the parties’ dispute
over the circumstances in which Graham was tased a second time is beyond our
limited review. See Berry, 900 F.3d at 1021–22.

      Accordingly, we dismiss for lack of jurisdiction.
                     ______________________________




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