                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0017n.06

                                     Case No. 15-4125

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                              Jan 09, 2017
                                                                          DEBORAH S. HUNT, Clerk

JOHN HARMON; STEPHANIE HARMON,                   )
                                                 )
       Plaintiffs-Appellees,                     )
                                                 )      ON APPEAL FROM THE UNITED
v.                                               )      STATES DISTRICT COURT FOR
                                                 )      THE SOUTHERN DISTRICT OF
HAMILTON COUNTY, OHIO; HAMILTON                  )      OHIO
COUNTY      BOARD   OF    COUNTY                 )
COMMISSIONERS; SHERIFF, HAMILTON                 )
COUNTY;      HAMILTON     COUNTY                 )
SHERIFF'S DEPARTMENT,                            )
     Defendants,                                 )
                                                 )
SHAWN COX; RYAN WOLF; MATTHEW                    )
WISSEL; JOHN HAYNES, Patrol Officers, In         )
their Official and Individual Capacities;        )
BARBARA STUCKEY, Sergeant, In her                )
Official and Individual Capacity,                )
                                                 )
       Defendants-Appellants.                    )
                                                 )
____________________________________


Before: KEITH, COOK, and STRANCH, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. On October 20, 2009, Plaintiff John Harmon

(“Harmon”) was driving his vehicle in Anderson Township, Hamilton County, Ohio, when

Defendant Deputy Ryan Wolf noticed that he was driving erratically and started to pursue him.
Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


Wolf made a radio call to other officers. Eventually, two other officers—Defendants Deputies

John Haynes and Matt Wissell—joined in Wolf’s pursuit of Harmon. Once Harmon’s vehicle

stopped, the officers approached the vehicle, broke the window, tased him, dragged him out, and

handcuffed him. More law enforcement officials arrived on the scene at some point, including

Defendant Sergeant Barbara Stuckey, Defendant Deputy Shawn Cox and Trooper Sanger.

A diabetic kit was later found in Harmon’s car. Afterwards, Harmon was charged with failure to

comply with an order of a police officer and resisting arrest under Ohio law. Those charges were

eventually dismissed.

        Harmon and his wife, Stephanie Harmon (together, “Plaintiffs”), sued Defendants for,

among other things, violations of the Fourth Amendment—excessive force, false arrest, and

malicious prosecution. Defendants moved to dismiss and/or for summary judgment on qualified-

immunity grounds, which the district court granted and denied in part. Defendants appeal the

denial of summary judgment for the claims of excessive force, false arrest, and malicious

prosecution.    Because we lack jurisdiction to review these claims, we DISMISS this

interlocutory appeal.

   I.      FACTUAL BACKGROUND

        The district court noted the following relevant facts.

        a. Wolf pursues Harmon’s vehicle

        “On October 20, 2009 at about 1:15 a.m., Harmon was driving a Ford Expedition vehicle

on Clough Pike in Anderson Township, Hamilton County, Ohio.” Harmon v. Hamilton Cty.,

Ohio, No. 1:10-CV-911, 2015 WL 5697475, at *1 (S.D. Ohio Sept. 29, 2015). “Harmon has no

memory of driving his vehicle at the time.” Id. He “believes he was suffering a diabetic low

blood sugar episode, also referred to as a hypoglycemic reaction, during the time of the



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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


incident.” Id. According to Harmon, “his cognitive reasoning is diminished when he has an

episode, that he is unable to understand when people speak to him, and that he feels like he is ‘in

a cloud.’” Id.

       “Wolf was on duty and in uniform patrolling Anderson Township in a marked Sheriff’s

cruiser when the incident began.” Id. at *2. “Wolf testified that he first noticed Harmon when

Harmon’s vehicle came to an ‘abrupt, erratic, screeching stop’ at the intersection of Clough Pike

and Corbly Road and then accelerated from the intersection in a ‘pretty erratic manner.’” Id.

“One of the headlights on [his] vehicle was not working.” Id. “Wolf estimated Harmon to be

driving 45 miles per hour on Clough Pike.” Id. This estimate does not match the finding of the

Hamilton County Investigation Report (“HC Investigation Report”). Id.

       Wolf then “activated his cruiser’s lights and siren when he saw Harmon turn right on to

Wolfangle Road, then make a quick u-turn which resulted in Harmon driving off the roadway

and into a grassy area.” Harmon, 2015 WL 5697475, at *2. “Wolf pursued Harmon as he

[drove] eastbound on Clough Pike.” Id. According to Wolf, “Harmon drove at an inconsistent

speed, crossed the center line, and crossed onto the shoulder.” Id. Even though the lights and

siren on the cruiser were on, Wolf did not stop or pull over the vehicle to the side of the road. Id.

“Wolf used his radio to inform other officers that he was in pursuit of [Harmon’s] vehicle.” Id.

       b. Wissel and Haynes also pursue Harmon’s vehicle

       “Wissel also was on duty patrolling Anderson Township” on the night of the incident. Id.

Wissel “ran the license plate number on Harmon’s vehicle and saw that it was registered to a

downtown Cincinnati business address.” Id. “Wissel [thought] that the vehicle might have been

stolen.” Id. Wissel then “turned on his lights and siren and attempted to use his cruiser as a

roadblock at the intersection of Clough Pike and Nagel Road.” Id. According to Wissel,



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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


“Harmon did not comply with the roadblock, but drove around it and continued east on Clough

Pike.” Id. Wissel also pursued Harmon’s vehicle. Id.

       “Haynes also was on duty patrolling Anderson Township in a marked Sheriff’s car and

wearing his uniform.” Id. “He heard the radio call that a pursuit was in progress, turned on his

cruiser’s lights and siren, and [also drove] eastbound on Clough Pike to join the pursuit.” Id.

       c. Harmon’s vehicle stops

       “Harmon stopped his vehicle on Clough Pike [,] adjacent to Julifs Park.” Id. “Wolf and

Wissel stopped and exited their cruisers.” Id. Their weapons were drawn. Id. Haynes then

pulled up and exited his vehicle. Id. “Harmon did not exit his vehicle.” Id. He then drove the

car approximately 200 feet forward to Fireside Drive where he stopped the vehicle. Id. Haynes

estimates that Harmon was driving at 10 to 15 miles per hour. “Based on a Pursuit Path

Overview prepared as part of the HC Investigation Report, Harmon’s speed during the pursuit

had varied from the low average of approximately two miles per hour to a high average of

approximately 26 miles per hour.” Id.

       Wissel ordered Harmon to turn off the vehicle and step out of the car. Id. Harmon did

not exit the vehicle. Id. Wissel and Wolf yelled commands at Harmon. Id. “Wissel testified

that both of Harmon’s hands were in his lap.” Id. The deputies made their commands for

approximately 10 to 15 seconds before they attempted to break the driver side window. Id.

Although Wissel tried to open the driver’s door, he testified that it was locked; so, he struck the

window with his CD21 collapsible baton. Id. “Wissel did not warn Harmon that he would try to

break the window.” Id. Wissel testified that the driver’s door was locked at this time; the HC

Investigation Report, however, concludes that it was plausible the driver's door was never locked

and not checked prior to breaking the window.



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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


           d. Wolf succeeds in breaking the window and Wissel uses taser.

           “Wissel unsuccessfully tried to break the window with his CD21 baton[.]” Id. at *3.

“Wolf, however, successfully broke the window with his baton” thereafter, and glass from the

window struck Harmon. Id. Wissel testified that “Harmon reached with his left hand inside his

partially unzipped leather coat towards his right hip after the window broke.” Id. “Wissel

responded by shooting his taser at Harmon, deploying the probes, which attached to the wires

carrying the electrical current.” Id. “The probes did not penetrate Harmon’s leather jacket and

did not appear to affect Harmon.” Id. According to Wissel, he reached into the window and

unlocked the driver side door – a statement “at odds” with the HC Investigation Report’s

conclusion that “the door likely was never locked.” Id. “Haynes opened the driver side door and

attempted to pull Harmon from the vehicle.” Id. “Haynes testified that Harmon did not make a

focused attack and did not punch him, but he ‘batted and “swatted’ at him with his hands when

[ ] Haynes tried to unbuckle him. Id.

           “Wissel fired the taser in drive stun mode to Harmon’s knee because he thought Harmon

had grabbed [ ] Haynes.” Id. “Haynes testified that he also deployed his taser in drive stun

mode at Harmon’s shoulder because he feared Harmon would put the vehicle into gear and drive

off with him in it.” 1 Id. “Haynes did not observe the taser to have any effect.”

           “The HC Investigation Report concluded that only 20 seconds passed during the time that

the officers approached the car, issued verbal commands for Harmon to exit the vehicle,

shattered the driver side window, and tased Harmon.” Id.

           e. Trooper Chris Sanger arrives; Harmon taken to ground; Haynes uses taser.

           Trooper Chris Sanger of the Ohio State Highway Patrol arrived as the deputies were

trying to pull Harmon out of the car. Harmon, 2015 WL 5697475, at *3. “It did not appear to
1
    The drive stun mode does not incapacitate the victim, but causes pain for five seconds. Id.

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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


him that Harmon was struggling or pulling back against the deputies.” Id. Sanger “thought that

Harmon could not comply with the commands to get out of the car because his seatbelt was

[still] on.” Id. “Wissel cut the seat belt with a knife.” Id. “Haynes, Wolf, and Wissel then

pulled Harmon from the vehicle.” Id. “Haynes testified that the deputies ordered Harmon to lie

down, but he did not comply.” Id. Instead, “Harmon stood, tense and rigid.” Id. Haynes

“attempted a leg sweep maneuver [,] which was unsuccessful.” Id. “He next deployed his taser

in drive stun mode to the back of Harmon’s neck.” Id. “He stated it had no visible effect on

Harmon.” Id.

       “Harmon was then physically taken to the ground by the three deputies.” Id. at *4. They

ordered Harmon to put his hands behind his back, but Harmon did not comply. Id. “Wolf and

Wissel had Harmon’s left arm outstretched and were trying to move it back, but that Harmon’s

right arm was underneath his body.” Id. “Haynes again deployed the taser in stun drive mode to

Harmon’s lower back.” Id.

       ‘Trooper Sanger stated that it never appeared to him that Harmon was aggressively

fighting or actively resisting.” Id. “Harmon was not cursing at the officers.” Id. According to

Sanger, “Wolf had Harmon’s left arm [with a handcuff on it] in a position out towards the front

of his body and was pulling on it upward and away from his body.” Id. Sanger “thought there

would be an easier way to get Harmon’s arm behind his back, so he stepped in and took control

of Harmon’s left arm.” Id.

       f. Deputy Shawn Cox arrives; Harmon is treated for injuries and taken to hospital.

       The fifth officer to arrive at the scene, Cox, “was able to secure Harmon’s right arm and

put it behind his back.” Id. “Sanger pulled Harmon’s left arm behind his back. Id. Harmon’s

arms were then handcuffed behind his back.” Id. Harmon’s right elbow was later found to be



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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


dislocated. Id. “He also suffered several cuts and scrapes.” Id. “Less than three minutes passed

between the time that the car window was shattered and the time that Harmon was taken into

custody.” Id.

         “Anderson Township Emergency Medical Services treated Harmon at the scene.” Id.

“The officers taking an inventory of Harmon’s vehicle found what appeared to be a diabetic

insulin kit on the passenger floor board.” Id. “Harmon’s glucose level was 52 after he received

one-half tube of glucose orally.” Id. “A vacuum splint was placed on Harmon’s right elbow.”

Id. Harmon advised the medic at the premises “that he did not understand what was happening

and he did not remember the events leading up to or during his altercation with the police.” Id.

Harmon was transported to the hospital. Id. At the hospital, Harmon was not allowed to use the

restroom, and he subsequently urinated on himself while waiting at the triage desk at the

hospital. Id. “Harmon’s dislocated elbow required surgical repair.” Id.

         g. Calls made to determine whether Harmon should be arrested and charged.

         While at the scene, “Sergeant Stuckey called the night commander, Lieutenant Coyle, to

advise him of the taser deployments by the deputies.” Id. “Sergeant Stuckey called Lieutenant

Coyle a second time to advise the supervisor that Harmon was a diabetic.” Id. “Lieutenant

Coyle instructed Sergeant Stuckey to arrest and file charges against Harmon.” Id. Harmon was

charged with resisting arrest and failure to comply with the order of a police officer. Id. The

next day, Harmon turned himself into the Hamilton County Justice Center. Id. Criminal charges

were pressed against him, but were later dismissed.

   II.      PROCEDURAL BACKGROUND

         Plaintiffs sued Defendants in district court on December 20, 2010. Plaintiffs alleged

several counts in the complaint, but the three claims now at issue are: (1) the Fourth Amendment



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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


claim for false arrest; (2) Fourth Amendment claim for malicious prosecution; and (3) Fourth

Amendment claim for excessive force. On May 7, 2015, Defendants Wolf, Wissel, Haynes,

Cox, and Stuckey filed a motion to dismiss and for summary judgment based on qualified

immunity.       On September 29, 2015, the district court granted in part and denied in part

Defendants’ motion as follows: For the excessive-force claim, the district court ruled that while

Cox and Stuckey were entitled to qualified immunity, Haynes, Wissel, and Wolf were not.

As for the false-arrest claim, the district court ruled that Wolf, Wissel, Haynes, Cox, and Stuckey

were not entitled to qualified immunity. And as for malicious prosecution, the district court

ruled that Cox was entitled to qualified immunity, but Haynes, Stuckey, Wissel, and Wolf were

not.

           On October 15, 2015, Defendants timely filed this interlocutory appeal. See Fed. R. App.

P. 4(a).

    III.      ANALYSIS

    A. 42 U.S.C. § 1983 and the defense of qualified immunity: analytical framework.

           To prevail on his § 1983 claims, Harmon “must establish that a person acting under color

of state law deprived [him] of a right secured by the Constitution or laws of the United States.”

Smoak v. Hall, 460 F.3d 768, 777 (6th Cir. 2006) (quoting Waters v. City of Morristown,

242 F.3d 353, 358–59 (6th Cir. 2001)). Here, Harmon asserts three separate bases for violations

of the Fourth Amendment: (1) excessive force; (2) malicious prosecution; and (3) false arrest.

           Harmon may assert “the defense of qualified immunity, which shields government

officials from ‘liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.’”

Smoak, 460 F.3d at 777 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “The plaintiff



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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


carries the burden of proof to show that the defendant is not entitled to qualified immunity.”

See v. City of Elyria, 502 F.3d 484, 491 (6th Cir. 2007) (citing Wegener v. City of Covington,

933 F.2d 390, 392 (6th Cir. 1991)).

       “In determining whether a law enforcement officer is shielded from civil liability due to

qualified immunity, this court typically employs a two-step analysis: ‘(1) whether, considering

the allegations in a light most favorable to the party injured, a constitutional right has been

violated, and (2) whether that right was clearly established.’” Smoak, 460 F.3d at 777 (quoting

Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005)). “These questions may be

answered in either order.” Goodwin v. City of Painesville, 781 F.3d 314, 321 (6th Cir. 2015). If

the answer to either one is “[no] then qualified immunity protects the officer from civil

damages.” Id.

       Before we reach the merits of this appeal, we must first determine whether we may

exercise appellate jurisdiction to do so.

   B. APPELLATE JURISDICTION

           i.      Jurisdiction over qualified-immunity interlocutory appeals

       28 U.S.C. § 1291 limits this court’s jurisdiction to “final decisions of the district courts of

the United States . . . .” “As the denial of summary judgment is ordinarily not a final decision

within the meaning of 28 U.S.C. § 1291, it is generally not immediately appealable.” DiLuzio v.

Vill. of Yorkville, Ohio, 796 F.3d 604, 609 (6th Cir. 2015). But the Supreme Court, in Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985), explained that the “denial of a claim of qualified immunity,

to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning

of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”




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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


       So, “we may decide an appeal challenging the district court’s legal determination[s],”

such as whether, based on the plaintiff’s facts, “the defendant’s actions violated a constitutional

right or that the right was clearly established.” DiLuzio, 796 F.3d at 609 (citing Mitchell,

472 U.S. at 530); Carter, 408 F.3d at 310 (noting that the court has jurisdiction over the “purely

legal question of whether the facts alleged . . . support a claim of violation of clearly established

law”) (internal quotation marks and citation omitted).          “We may also decide an appeal

challenging a legal aspect of the district court’s factual determinations, such as whether the

district court properly assessed the incontrovertible record evidence.” DiLuzio, 797 F.3d at 609

(citing Plumhoff v. Rickard, 134 S. Ct. 2012, 2019 (2014)). Another circumstance in which we

may decide an appeal is where the district court’s “ruling also hinges on legal errors as to

whether the factual disputes (a) are genuine and (b) concern material facts.” Chappell v. City Of

Cleveland, 585 F.3d 901, 906 (6th Cir. 2009) (citing Scott v. Harris, 550 U.S. 372, 378–80

(2007)). “[W]e may [also] decide, as a legal question, an appeal challenging the district court’s

factual determination insofar as the challenge contests that determination as ‘blatantly

contradicted by the record, so that no reasonable jury could believe it.’” Di Luzio, 796 F.3d at

609 (quoting Scott, 550 U.S. at 380; see also Austin v. Redford Twp. Police Dept., 690 F.3d 490,

496 (6th Cir. 2012) (“In exceptional circumstances, an appellate court may overrule a district

court’s determination that a factual dispute exists where evidence in the record establishes that

the determination is ‘blatantly and demonstrably false.’”)

       “We may not, however, decide an appeal challenging the district court’s determination of

‘evidence sufficiency, i.e., which facts a party may, or may not, be able to prove at trial.’”

DiLuzio, 796 F.3d at 609 (quoting Johnson v. Jones, 515 U.S. 304, 313 (1995)). “[P]rohibited

fact-based (‘evidence sufficiency’) appeals challenge directly the plaintiff’s allegations (and the



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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


district court’s acceptance) of ‘what [actually] occurred [ ] or why an action was taken or

omitted,’ who did it, or ‘nothing more than whether the evidence could support a [jury’s] finding

that particular conduct occurred.’” Id. (alteration in the original) (internal citations omitted). Nor

can a defendant “challenge the inferences the district court draws from those facts, as that too is a

prohibited fact-based appeal.” Id. (citing Romo v. Largen, 723 F.3d 670, 673–74 (6th Cir.

2013)); see Romo, 723 F.3d at 675 (rejecting “‘reading’ of Johnson under which defendants may

generally challenge on interlocutory appeal a district court’s determination that the summary

judgment standard has been met with respect to factual inferences”); see id. at 678 (Sutton, J.

concurring) (interpreting majority view to be that “when a district court determines that there is a

‘genuine issue of fact’ for trial by drawing an inference in favor of the plaintiff, the appellate

court may not second-guess that inference, indeed lacks jurisdiction to do so.”). “As a rule, we

either dismiss these fact-based (‘evidence sufficiency’) appeals for lack of jurisdiction or excise

the prohibited challenge.” DiLuzio, 796 F.3d at 609–10.

        In sum, “we may not decide a challenge directly to the district court’s determination of

the record-supported evidence or the inferences it has drawn therefrom, but we may decide a

challenge with any legal aspect to it, no matter that it might encroach on the district court’s fact-

based determinations.” Id. at 610 (emphasis added); see also Roberson v. Torres, 770 F.3d 398,

403 (6th Cir. 2014) (“Plumhoff appears to cabin the reach of Johnson to ‘purely factual issues

that the trial court might confront if the case were tried.’” (citation omitted)); Family Serv. Ass’n

v. Wells Twp., 783 F.3d 600, 607 (6th Cir. 2015) (“Johnson applies to interlocutory appeals that

solely contest the plaintiff’s account of the facts.”).

        Determining jurisdictional scope in practice.          In determining the scope of our

jurisdiction, we must “separate an appellant’s reviewable challenges from its unreviewable.”



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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


DiLuzio, 796 at 610 (citations omitted).                 In earlier decisions, we held a challenge was

unreviewable where the appellant failed to “overlook any factual dispute and to concede an

interpretation of the facts in the light most favorable to the plaintiff’s case.” Berryman v. Rieger,

150 F.3d 561, 562 (6th Cir. 1998). In recent decisions, however, we clarified that we may still

decide appeals that contain a “pure question of law, despite the defendants’ failure to concede the

plaintiff’s version of the facts for purposes of the interlocutory appeal.” Livermore ex rel Rohm

v. Lubelan, 476 F.3d 397, 403 (6th Cir. 2007).2 In those cases, we can “ignore the defendant’s

attempts to dispute the facts and nonetheless resolve the legal issue, obviating the need to dismiss

the entire appeal for lack of jurisdiction.” DiLuzio, 796 F.3d at 611 (quoting Carter, 408 F.3d at

310); see also Zurlock v. Shures, 441 F. App’x 294, 300 (6th Cir. 2010) (stating that the appellate

court lacks jurisdiction over “improper arguments” that raise factual disputes and that it may

“simply ignore” such arguments); Harris v. City of Circleville, 583 F.3d 356, 364 (6th Cir. 2009)

(“That the [d]efendants here ‘make the occasional factual argument’ does not . . . destroy

jurisdiction over the legal issues presented.”) (citation omitted). Thus, a defendant’s failure to

concede the plaintiff’s version of the facts is not fatal so long as there is a pure question of law

that we may review. See, e.g., McDonald v. Flake, 814 F.3d 804, 813 (6th Cir. 2016); McCraig

v. Raber, 515 F. App’x 551, 554 (6th Cir. 2013); Kirby v. Duva, 530 F.3d 475, 481 (6th Cir.

2008); Green v. Taylor, 239 F. App’x 952, 957 (6th Cir. 2007); Carter, 408 F.3d at 310.3

         In ascertaining which facts are disputed or not, “ideally we need look no further than the

district court’s opinion for the facts and inferences cited expressly therein.” DiLuzio, 796 F.3d at

2
  A defendant purporting to concede could still fail to concede by “put[ting] the dispositive facts into dispute.”
Schmalfeldt v. Roe, 412 F. App’x 826, 828 (6th Cir. 2011).
3
  It is worth mentioning that a district court’s denial of a motion for summary judgment “on the grounds that genuine
issues of material fact exist does not necessarily foreclose this Court's jurisdiction over [an] appeal.” See, 502 F.3d
at 490. “Rather, ‘regardless of the district court’s reasons for denying qualified immunity, [this Court] may
exercise jurisdiction over the [defendant’s] appeal to the extent it raises questions of law.’” Id. (alteration in the
original) (quoting Williams v. Mehra, 186 F.3d 685, 689–90 (6th Cir.1999) (en banc)).

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611. “That is, in deciding these legal challenges on interlocutory appeal from the denial of

qualified immunity, we often may be able merely to adopt the district court’s recitation of facts

and inferences.” Id. (citing Johnson, 515 U.S. at 319). “Of course, in briefing or arguing for

reversal on legal grounds, the defendant-appellant may—indeed, for some arguments, must—

point to some other of the plaintiff’s record evidence, or some incontrovertible record evidence,

to support that argument.” Id. (citation omitted).                  “[T]he plaintiff-appellee may point to

additional record evidence in support of its position, or to bolster the district court’s

determination.” Id. So, “while we need not engage in a plenary review of the record, neither are

we limited to only the facts, evidence, or inferences that the district court has stated expressly.”

Id. (citation omitted).4

         Thus, we must determine whether Defendants have raised prohibited fact-based

challenges, and if they have, whether they have also raised pure questions of law over which we

may exercise jurisdiction.

             ii.      Review of Defendants’ Appeal

                                             a. Excessive force

         Under the Fourth Amendment, “[t]he police must act reasonably when seizing a person.”

Rudlaff v. Gillipsie, 791 F.3d 638, 641 (6th Cir. 2015); accord U.S. CONST. amends. IV (“The

right of the people to be secure in their persons . . . against unreasonable searches and seizures,

shall not be violated . . . .”). “To determine whether the use of force was excessive for purposes

of the Fourth Amendment, ‘we employ an ‘objective reasonableness’ test, which requires

consideration of the totality of the circumstances.’” Eldridge v. City of Warren, 533 F. App’x



4
 “It bears mention, however, that, in adopting or accepting the district court’s factual determinations for the purpose
of deciding this interlocutory appeal, we are not ourselves making any findings of fact or inferences for purposes of
any subsequent proceedings.” McDonald, 814 F.3d at 813 (citing DiLuzio, 796 F.3d at 611).

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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


529, 532 (6th Cir. 2013) (quoting Kijowski v. City of Niles, 372 F. App’x 595, 598 (6th Cir.

2010)).

          “This reasonableness inquiry presents the overarching question of ‘whether the officers’

actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them,

without regard to their underlying intent or motivation.’” Id. (quoting Graham v. Connor,

490 U.S. 386, 397 (1989)). “The inquiry assesses ‘reasonableness at the moment’ of the use of

force, as ‘judged from the perspective of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.’” Goodwin, 781 F.3d at 321 (quoting Graham, 490 U.S. at 396).

“Determining whether the amount of force was reasonable ‘requires a careful balancing of the

nature and quality of the intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.’” Id. (quoting Graham, 490 U.S. at 396).

          Three factors—also known as the Graham factors—inform this inquiry, although the

factors are by no means exhaustive:

                 (1) the severity of the crime at issue,
                 (2) whether the suspect poses an immediate threat to the safety of
                     the officers or others, and
                 (3) whether he is actively resisting arrest or attempting to evade
                     arrest by flight.

Id. (citation omitted). “Ultimately, the court must determine ‘whether the totality of the

circumstances justifies a particular sort of seizure.’” Id. (internal citation omitted).

          We conclude that Defendants rely on disputed facts at every point in their argument on

appeal, divesting this court of appellate jurisdiction over Plaintiffs’ excessive force claim. For

example, whether the driver’s door was locked or not remains a disputed issue. The district court

found that Wolf “broke the window with his baton.” Harmon, 2015 WL 5697475, at *3. The

HC Investigation Report noted that it was “plausible the driver’s door was never locked and not


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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


checked prior to breaking the window.” 5 Id. at *2. In relying on this report, the district court

observed that “it was probable that the driver side door was unlocked making it unnecessary for .

. . Wolf to have shattered the window.”                   Id. at *8.       The district court concluded that,

“[e]xamining the totality of the facts in light most reasonable to [Plaintiffs], [Wolf] unnecessarily

shattered his driver’s side window without warning.” Id. at 9. On appeal, Defendants contest the

district court’s determination that a factual dispute exists, stating, “[t]here is nothing in the record

evidence to substantiate that the driver’s side door of Harmon’s vehicle was unlocked when Wolf

broke the window.” This is the type of prohibited fact-based challenge that we lack jurisdiction

to review and that goes to the heart of whether Wolf’s breaking of the window constitutes

excessive force. See, e.g., DiLuzio, 796 F.3d at 611–12; see also Coles v. Eagle, 704 F.3d 624,

630 (9th Cir. 2012) (stating that a genuine issue of material fact existed as to whether officers

used excessive force in breaking a car window and pulling arrestee through it, precluding

summary judgment on excessive force claim).

         Other disputed factual issues—specifically, those that relate to the third Graham factor—

include whether Harmon was “actively resisting arrest” and whether Defendants’ actions

5
  The district court ruled that the HC Investigation Report may be relied upon in determining whether there is a
genuine issue of material fact. See Harmon, 2015 WL 5697475, at *1. Defendants contend that the use of the HC
Investigation Report is improper.
         Because Defendants failed to contest the district court’s ruling on the HC Investigation Report in their
opening brief, and instead contested it for the first time in their reply brief, they have waived any such argument that
the use of it is improper. See United States v. Clariot, 655 F.3d 550, 556 (6th Cir. 2011) (“When a district court
resolves an issue, the losing party can challenge it.”); Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010) (“We
have consistently held . . . that arguments made to us for the first time in a reply brief are waived.”) (citing Am.
Trim, L.L.C. v. Oracle Corp., 383 F.3d 462, 477 (6th Cir. 2004)).
          In any case, we do not get bogged down in evidentiary disputes when reviewing a denial of qualified
immunity because Johnson precludes us from doing so. See, e.g., Ellis v. Washington Cty. & Johnson City, Tenn.,
198 F.3d 225, 229 (6th Cir. 1999). Indeed, even if the piece of evidence constitutes the rankest hearsay and raises a
genuine issue of material fact—the resolution of which a constitutional claim depends—then this court must dismiss
the appeal for lack of jurisdiction. See id. (dismissing appeal even though “the only factual dispute . . . arises from
the rankest type of inadmissible hearsay . . . [and] [n]o exception to the hearsay rule would let it in”). Of course,
dismissal is not necessary to the extent the qualified-immunity issue is “based on an issue of law.” See Bertl v. City
of Westland, No. 07-2547, 2009 WL 247907, at *4 (6th Cir. Feb. 2, 2009) (resolving appeal notwithstanding
evidentiary dispute). Therefore, the admissibility of the HC Investigation Report has no bearing on our analysis in
this interlocutory appeal.

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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


precluded Harmon from complying with the orders and commands. See Goodwin, 781 F.3d at

321. The district court noted that once Harmon was out of the vehicle, he stood, “tense and

rigid.” Harmon, 2015 WL 5697475, at *3. Haynes “then attempted a leg sweep maneuver

which was unsuccessful,” and then “deployed his taser in drive stun mode to the back of

Harmon’s neck.”     Id.   This had “no visible effect on Harmon.”        Id.   After Harmon was

“physically taken to the ground by the three deputies,” the deputies “ordered Harmon to put his

hands behind his back, but he did not comply.” Id. at *4. Haynes testified that “Wolf and

Wissel had Harmon’s left arm outstretched and were trying to move it back, but that Harmon’s

right arm was underneath his body.” Id. Haynes “again deployed the taser in stun drive mode to

Harmon’s lower back.” Id. Although Haynes “admit[ted] to deploying his taser three times total

during the incident . . . the HC Investigation Report indicated that his taser was activated four

times in one minute.” Id. Sanger believed, based on what he saw, that Haynes “did not need to

tase Harmon because Harmon was not resisting and there were a sufficient number of officers on

the scene to subdue him.” Id. Further, according to Sanger, “Wolf had Harmon’s left arm in a

position out towards the front of his body and was pulling on it upward and away from his

body.” Id. Sanger “thought there would be an easier way to get Harmon’s arm behind his back,

so he stepped in and took control of Harmon’s left arm.” Id. The district court noted that “a

reasonable jury might conclude that the officers’ uncoordinated efforts to handcuff Harmon

made it difficult for Harmon to place his hands behind his back.” Id. at *8.

       But Defendants challenge the district court’s inferences. For instance, Defendants argue

that Harmon was “refusing to relinquish [his right arm]” when he was on the ground, and thus

permitting use of the taser. But that argument directly challenges the district court’s observation

that a reasonable jury could conclude that “it [was] difficult for Harmon to place his hands



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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


behind his back.”       Id. at *8.     Yet again, Defendants’ argument is a prohibited fact-based

challenge. See DiLuzio, 796 F.3d at 609; Romo, 723 F.3d at 675. Whether Harmon was refusing

to relinquish his right arm or whether he was unable to do so is material to determining whether

the use of force employed by Haynes was excessive. See Caie v. W. Bloomfield Twp., 485 F.

App’x 92, 97 (6th Cir. 2012) (“[T]here is no dispute that [the] [p]laintiff continued to be

uncooperative by actively resisting the officers’ attempts to secure his arms behind his back. In

light of this resistance, we find that [the officer’s] single use of the taser in drive-stun mode was

not gratuitous.”).

        Further, there is a factual dispute as to whether Defendants’ actions precluded Harmon

from complying with any orders. According to Wissel, “Harmon reached with his left hand

inside his partially unzipped leather coat towards his right hip after the window broke.”

Harmon, 2015 WL 5697475, at *3.                 Wissel “responded by shooting his taser at Harmon,

deploying the probes which attached to the wires carrying the electrical current.”                            Id.

“The probes did not penetrate Harmon’s leather jacket and did not appear to affect Harmon.” Id.

Wissel also “fired the taser in drive stun mode to Harmon’s knee because he thought Harmon

had grabbed . . . Haynes.” Id. But the HC Investigation Report noted that Harmon’s actions

when the window was broken should have been anticipated by the officers and that his “[t]urning

or reacting as the window was shattered was probably caused by reflex and being showered with

broken glass.” Id. (alteration in the original).6 The district court reasoned that the facts, if proven

at trial could show that Defendants “continued to tase him multiple times for not obeying their

verbal orders, but their physical actions impeded his ability to comply.” Id. at *9. On appeal,

Defendants noted that Wissel testified that he deployed the Taser to “counteract the possible


6
 Wissel testified that he “then reached into the window and unlocked the driver side door,” but that statement, as
noted earlier, is “at odds” with the HC Investigative Report. Harmon, 2015 WL 5697475, at *3.

                                                     - 17 -
Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


production of a weapon.” The district court neither accepted nor rejected this particular

inference, and we cannot do so on appeal. See McDonald, 814 F.3d at 813.

       All in all, we have no appellate jurisdiction over these fact-based challenges. Nor do

Defendants raise any legal question for us to review, such as whether, based on Plaintiffs’

version of the facts, “the district court’s legal determination that . . . [Defendants’] actions

violated a constitutional right or that the right was clearly established.” See DiLuzio, 796 F.3d at

609.   Therefore, we dismiss Defendants’ excessive force interlocutory appeal for lack of

appellate jurisdiction.

       We now turn to the remaining claims.

                                      b. False arrest

       “In order for a wrongful arrest claim to succeed under § 1983, a plaintiff must prove that

the police lacked probable cause.” Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002).

“A police officer has probable cause only when he discovers reasonably reliable information that

the suspect has committed a crime.” Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000).

Furthermore, “in obtaining such reliable information, an officer cannot look only at the evidence

of guilt while ignoring all exculpatory evidence. Rather, the officer must consider the totality of

the circumstances, recognizing both the inculpatory and exculpatory evidence, before

determining if he has probable cause to make an arrest.” Id. (citation omitted). “While officers

cannot ignore exculpatory facts in reaching a probable cause determination, it is not the rule that

they must investigate a defendant’s legal defenses prior to making an arrest.” Fridley, 291 F.3d

at 874 (emphasis added) (internal citation omitted). Indeed, “[e]ven if the circumstances suggest

that a suspect may have an affirmative defense, if a reasonable officer would not ‘conclusively

know’ that the suspect is protected by the defense, then he is free to arrest the suspect provided



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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


there is probable cause to do so.” Young v. Owens, 577 F. App’x 410, 414 (6th Cir. 2014)

(alteration in original) (quoting Fridley, 291 F.3d at 873).

        A determination of whether probable cause existed requires us to examine the totality of

the circumstances, and we may “consider only the information possessed by the arresting officer

at the time of the arrest.” Harris v. Bornhorst, 513 F.3d 503, 511 (6th Cir.), cert. denied,

554 U.S. 903 (2008). “A finding of probable cause does not require evidence that is completely

convincing or even evidence that would be admissible at trial; all that is required is that the

evidence be sufficient to lead a reasonable officer to conclude that the arrestee has committed or

is committing a crime.” Id.

        The district court noted that “[i]n general, the existence of probable cause in a § 1983

action presents a jury question, unless there is only one reasonable determination possible.”

Harmon, 2015 WL 5697475, at *9 (quoting Fridley, 291 F.3d at 872). And the district court

treated the issue as a factual question in which “reasonable jurors could conclude that the officers

lacked probable cause to arrest Harmon . . . .” Harmon, 2015 WL 5697475, at *9. Defendants

offer a contrary view, relying on this court’s statement in Vakilian v. Shaw, 335 F.3d 509, 517

(6th Cir. 2003) that “[w]here qualified immunity is asserted, the issue of probable cause is one

for the court since ‘the entitlement is immunity from suit rather than a mere defense to liability.’”

It is true that this court has taken seemingly inconsistent views as to whether the existence of

probable cause is a question of fact or law.7 We need not try to resolve these inconsistencies


7
 We collected the inconsistent case law in McKenna v. Edgell, 617 F.3d 432, 441–42 (6th Cir. 2010) (alterations in
original):
                 [I]nconsistently, we have at times asked the jury and at times reserved for the
                 court the issue of whether a set of facts provided officers with probable cause.
                 Compare Parsons v. City of Pontiac, 533 F.3d 492, 503 (6th Cir. 2008) (“We
                 ultimately conclude that th[e] evidence, when viewed in the light most favorable
                 to [the plaintiff], is not susceptible to only one reasonable determination—that
                 the detectives had probable cause to arrest [him].”), and Radvansky v. City of
                 Olmsted Falls, 496 F.3d 609, 617 (6th Cir. 2007) (“[T]he jury heard testimony

                                                     - 19 -
Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


today. Instead, we conclude that there are factual questions underlying the probable-cause

determination—separate and apart from the issue of whether probable cause is either legal or

factual in nature—that preclude our ability to exercise jurisdiction over the false-arrest claim.

See Hale, 396 F.3d at 728 (“If disputed factual issues underlying probable cause exist, those

issues must be submitted to a jury for the jury to determine the appropriate facts.”).

       In determining whether there was probable cause to arrest Harmon, we should first

determine the elements of the crimes for which Harmon has been charged. See, e.g., Buchanan

v. Metz, 647 F. App’x 659, 665–66 (6th Cir. 2016); Amis v. Twardosky, 637 F. App’x 859, 861–

62 (6th Cir. 2015). He was charged with two crimes: “Failure to comply with order or signal of

police officer,” see Ohio Rev. Code Ann. § 2921.331 (West), and “Resisting Arrest,” see id.

§ 2921.33(A).

       Resisting Arrest. The statute for “resisting arrest” provides in relevant part that “[n]o

person, recklessly or by force, shall resist or interfere with a lawful arrest of the person or

another.” Ohio Rev. Code Ann. § 2921.33(A). Wolf averred that “Harmon . . . fail[ed] to get

out of his vehicle, when ordered to do so after a short traffic pursuit, refused verbal commands to

get on the ground and refused verbal commands to place his hands behind his back.” Wolf

further alleged that “Harmon did actively struggle and push arresting officers.”




                sufficient to support its conclusion that the officers arrested [the plaintiff] with
                probable cause.”), and Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir.
                2000) (“[W]e must determine whether a jury could conclude that a reasonable
                officer could have believed that the couple had probably committed or were
                committing a crime. There is substantial evidence supporting each party’s
                position.”), with Hale v. Kart, 396 F.3d 721, 728 (6th Cir. 2005) ( “[T]he jury
                does not decide whether the facts it has found are legally sufficient to amount to
                probable cause or entitlement to qualified immunity.”), and Ross v. Duggan,
                402 F.3d 575, 585 (6th Cir. 2005) (“[T]he judgment [ ] . . . that pre-arrest
                probable cause existed on a given set of facts ... is a mixed issue of law and fact
                reviewed by the courts de novo.”).

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Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


       The district court explained that “reasonable jurors could conclude that the officers

lacked probable cause to arrest Harmon for resisting arrest . . . because the officers’ aggressive

actions prevented him from complying.” Harmon, 2015 WL 5697475, at *9. On appeal,

Defendants challenge the district court’s determination that a material factual dispute exists as to

whether Harmon was resisting or not, noting that Harmon “failed to comply with the attempts of

the officers to stop his vehicle, refused to exit the vehicle upon being stopped.” As mentioned

earlier in our discussion of Plaintiffs’ excessive-force claim, a reasonable jury could conclude

that the “physical actions [of Defendants] impeded [Harmon’s] ability to comply.” Harmon,

2015 WL 5697475, at *9. Therefore, because of this factual dispute, over which we do not have

jurisdiction, see Johnson, 515 U.S. at 313, we need to determine whether there is any other

record evidence that supports a determination that Defendants had probable cause to arrest

Harmon. To that end, it is worth determining whether there is any undisputed record evidence to

support that Harmon “fail[ed] to comply with [an] order or signal of a police officer.” Ohio Rev.

Code Ann. § 7921.331; see also, e.g., Halasah v. City of Kirtland, Ohio, 574 F. App’x 624, 631

(6th Cir. 2014) (“Even if we assume that there was not probable cause to arrest Halasah for

Disorderly Conduct, there was probable cause to arrest Halasah for Obstructing Official

Business.”).

       Failure to comply with order or signal of police officer. This statute for “failure to

comply with order or signal of police officer” provides as follows:

               (B) No person shall operate a motor vehicle so as willfully to elude
               or flee a police officer after receiving a visible or audible signal
               from a police officer to bring the person’s motor vehicle to a stop.
Ohio Rev. Code Ann. § 2921.331 (West).

       On appeal, Defendants argue that they were confronted with “an erratic driver violating

traffic laws who did not comply with the cruiser lights and sirens or with the roadblock created
                                               - 21 -
Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


to stop him.”8 The problem with Defendants’ argument is that it ignores the use of the word

“willfully” in the statute. See, e.g., Williams v. City of Alexander, Ark., 772 F.3d 1307, 1312 (8th

Cir. 2014) (“For probable cause to exist, there must be probable cause for all elements of the

crime, including mens rea.”). As the Ohio Court of Appeals explained, the term “willfully,” as

used in this statute, connotes a sense of “purpose[].” State v. Garrard, 867 N.E.2d 887, 893–94

(Ohio Ct. App. 2007). Ohio Rev. Code. Ann § 2901.22 provides:

                  (A) A person acts purposely when it is his specific intention to
                  cause a certain result, or, when the gist of the offense is a
                  prohibition against conduct of a certain nature, regardless of what
                  the offender intends to accomplish thereby, it is his specific
                  intention to engage in conduct of that nature.

Garrard, 867 N.E.2d at 893–94. “Proof of intent may be derived from circumstantial evidence,

as direct evidence will seldom be available. Circumstantial evidence is the proof of facts by

direct evidence from which the trier of fact may infer or derive by reasoning other facts in

accordance with the common experience of mankind.” Id. at 894 (internal quotation marks and

citation omitted). Whether there is some evidence in the record that supports that Harmon acted

“willfully” is a factual inference that we cannot make on appeal. See, e.g., Reynolds v. Snider,

279 F. App’x 389, 390 (6th Cir. 2008) (dismissing appeal of denial of summary judgment as to

false arrest claim because of the “factual dispute about the motive, purpose and intent of the

officers”).

         In sum, because of the factual dispute underlying the probable cause determination, and

Defendants’ failure to present any legal question, we lack appellate jurisdiction over Defendants’

false arrest appeal.


8
  The district court explained that “reasonable jurors could conclude that the officers lacked probable cause to arrest
Harmon after they discovered the diabetic insulin kit.” Harmon, 2015 WL 5697475, at *9. “Examining the facts in
a light most favorable to Harmon, reasonable jurors could conclude that he had been suffering a diabetic attack when
he committed the traffic violations.” Id.

                                                        - 22 -
Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


                                      c. Malicious prosecution

       The elements of a malicious prosecution claim under Sixth Circuit law are as follows:

               (1)        the plaintiff must show that a criminal prosecution was
                          initiated against the plaintiff and that the defendant
                          made, influenced, or participated in the decision to
                          prosecute;

               (2)        because a § 1983 claim is premised on the violation of a
                          constitutional right, the plaintiff must show that there
                          was a lack of probable cause for the criminal
                          prosecution;

               (3)        the plaintiff must show that, as a consequence of a legal
                          proceeding, the plaintiff suffered a deprivation of
                          liberty, as understood in [this court’s] Fourth
                          Amendment jurisprudence, apart from the initial
                          seizure.

               (4)        the criminal proceeding must have been resolved in the
                          plaintiff’s favor.

Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010) (internal citations and quotation marks

omitted). As mentioned earlier, there were two criminal charges in this case: one for resisting

arrest, Ohio Rev. Code 2921.33(A), and the other for failure to comply with order or signal of

police officer, Ohio Rev. Code. 2921.33(B).

       As for malicious prosecution, courts have held that the existence of probable cause

forecloses a finding of malicious prosecution. See Provience v. City of Detroit, 529 F. App’x

661, 668 (6th Cir. 2013) (“Because Provience has not made the required showing that there was

a lack of probable cause for the criminal prosecution, Sergeant Moore is also entitled to qualified

immunity on the malicious-prosecution claim.”); Watson v. City of Marysville, 518 F. App’x

390, 392 (6th Cir. 2013) (“Additionally, ‘[t]he existence of probable cause for an arrest totally

precludes any section 1983 claim for unlawful arrest, false imprisonment, or malicious

prosecution . . . .”) (quoting Mark v. Furay, 769 F.2d 1266, 1269 (7th Cir. 1985)). The district

                                              - 23 -
Case No. 15-4125, John Harmon, et al. v. Hamilton County, Ohio, et al.


court stated that the “[r]easonable jurors could conclude that Defendants lacked probable cause

to prosecute Harmon.” Harmon, 2015 WL 5697475, at *10.

         Because of the factual dispute underlying the probable cause determination, and

Defendants’ failure to present any legal question, we lack appellate jurisdiction over Defendants’

malicious prosecution appeal.

   IV.      CONCLUSION

         Because Defendants’ arguments rest on factual disputes and because Defendants raise no

pure question of law, we accordingly DISMISS this appeal for lack of appellate jurisdiction.




                                              - 24 -
