                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JAN 3 2003
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 MICHAEL DON FITZGERALD,
                Plaintiff - Appellee,
 v.                                                     No. 01-6268
 CAMIEL EARLENE DELLINGER,                        (D.C. No. 00-CV-501-T)
 Officer, individually and in her                       (W.D. Okla.)
 official capacity as a Mustang Police
 Officer,
                Defendant - Appellant,

          and

 CITY OF MUSTANG, a municipal
 corporation,

                Defendant.


                             ORDER AND JUDGMENT *



Before SEYMOUR, McKAY, and MURPHY, Circuit Judges.




      This is an interlocutory appeal pursuant to 28 U.S.C. § 1291 from the



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
district court’s denial of qualified immunity as a matter of law to Appellant

Officer. Appellee Fitzgerald alleges that Appellant Police Officer used excessive

force against him when she shot at his vehicle and wounded him while she was

pursuing Appellee’s truck. The district court determined that there were material

issues of disputed fact regarding whether the circumstances warranted Appellant

Officer’s use of excessive force. Therefore, the district court denied Appellant

Officer’s motion for summary judgment based on qualified immunity.

      Orders denying qualified immunity before trial are appealable only to the

extent that they resolve abstract issues of law and do not extend to issues of

evidentiary sufficiency. See Behrens v. Pelletier, 516 U.S. 299, 313 (1996);

Johnson v. Jones, 515 U.S. 304, 312-14 (1995); Armijo v. Wagon Mound Public

Schools, 159 F.3d 1253, 1258 (10th Cir. 1998); Foote v. Spiegel, 118 F.3d 1416,

1422 (10th Cir. 1997). While this court is not deprived of jurisdiction solely

because the district court determined that there are genuine issues of material

fact, this court lacks jurisdiction “if our review would require second-guessing

[of] the district court's determination of evidence sufficiency.” Medina v. Cram,

252 F.3d 1124, 1130 (10th Cir. 2001). Appellant Officer challenges only the

district court’s determination that Appellee Fitzgerald produced sufficient

evidence pertaining to the circumstances surrounding her use of force to send the

case to trial. Accordingly, this court lacks jurisdiction to review the district


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court’s denial of Appellant Officer’s motion for summary judgment on the

grounds of qualified immunity.

      We DISMISS for lack of jurisdiction. 1



                                                 Entered for the Court



                                                 Monroe G. McKay
                                                 Circuit Judge




      1
          Appellee’s motion to substitute brief is granted.

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