                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 16 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    GEORGE L. GRAYSON,

                Plaintiff-Appellee,

    v.                                                    No. 98-5188
                                                    (D.C. No. 97-CV-769-C)
    PHILLIP E. SNOW; ROBERT S.                            (N.D. Okla.)
    JACKSON; JOHN D. CAROLLA,

                Defendants-Appellants.


                            ORDER AND JUDGMENT            *




Before BALDOCK , HENRY , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Defendants, City of Tulsa police officers, appeal the district court’s denial

of their motion for summary judgment in this civil rights action, brought pursuant

to 28 U.S.C. § 1983, arguing that even under plaintiff’s version of the facts they

are entitled to qualified immunity. Because the district court denied summary

judgment based on a dispositive factual dispute, and because defendants do not

accept plaintiff’s facts in this appeal, we dismiss the appeal for lack of

jurisdiction.

      This civil rights action arose out of a warrantless arrest. During the

evening of August 22, 1996, police received a report that plaintiff had engaged in

improper sexual conduct with several neighborhood children. After interviewing

the children and their parents, defendant police officers arrived at plaintiff’s

home at approximately midnight. When they knocked on the door, plaintiff

answered wearing only his underwear. The officers and plaintiff have different

versions of what transpired next.

      The officers presented affidavit testimony that plaintiff stepped out onto the

front porch and was arrested there.   See Appellant’s App. at 30. The affidavit

stated further that two of the officers never entered plaintiff’s house at all that

evening, and that the third officer only entered the house after the arrest, in the

company of plaintiff’s wife.   See id. In response, plaintiff presented deposition

testimony that he came to the door in his underwear, that he held the storm door


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ajar and answered the officers’ question whether he was George Grayson, that he

then said “Just a second. Let me get some clothes on,” and retreated into the

house, and that the officers followed him into the house and arrested him there.

Id. at 37. Plaintiff’s wife also testified that when she came out of the bedroom

the three officers were in the dining room and plaintiff was in handcuffs.      See id.

at 39. In their reply brief, the officers argued they were entitled to qualified

immunity even under plaintiff’s facts. The district court denied the officers’

motion, holding that a genuine issue of material fact regarding the location of the

arrest precluded summary judgment.

       We must examine whether we have jurisdiction over this interlocutory

appeal. “Since federal courts are courts of limited jurisdiction, we presume no

jurisdiction exists absent an adequate showing by the party invoking federal

jurisdiction. If jurisdiction is challenged, the burden is on the party claiming

jurisdiction to show it by a preponderance of the evidence.”       United States ex rel.

Hafter v. Spectrum Emergency Care, Inc.      , 190 F.3d 1156, 1160 (10th Cir. 1999)

(citations omitted).

       An order denying qualified immunity is appealable before trial only if it

involves “neat abstract issues of law.”    Johnson v. Jones , 515 U.S. 304, 317

(1995) (quotation omitted). When the district court’s denial of qualified

immunity rests on the existence of a genuine issue of fact which will determine


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the availability of the defense, the ruling is not immediately appealable under the

collateral order doctrine.   See id. at 310, 313-15 (affirming dismissal for lack of

jurisdiction officers’ appeal from denial of qualified immunity based on a factual

dispute whether they engaged in beating, noting lack of separability from merits);

Foote v. Spiegel , 118 F.3d 1416, 1422 (10th Cir. 1997) (“[G]overnment officials

cannot appeal pretrial denial of qualified immunity to the extent the district

court’s order decides nothing more than whether the evidence could support a

finding that particular conduct occurred.”). Such a denial may be appealed as a

question of law, however, if a defendant argues that even under the plaintiff’s

facts there was no violation of clearly established law.    See Johnson v. Martin ,

195 F.3d 1208, 1214-15 (10th Cir. 1999).

       In this case, the district court denied summary judgment solely on the

ground that plaintiff’s evidence created a factual dispute on the dispositive issue

of where the arrest occurred. Although it is a close question, we conclude the

court’s ruling is not immediately appealable.      See, e.g. , Myers v. Oklahoma

County Bd. of County Comm’rs , 80 F.3d 421, 425 (10th Cir. 1996) (holding

district court’s denial of qualified immunity was not immediately appealable when

it rested solely on the existence of a factual dispute regarding the reasonableness

of defendants’ use of force).




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       The location of the arrest is pivotal to defendants’ entitlement to qualified

immunity, as it is well established that a warrantless arrest inside a suspect’s

home is unconstitutional unless it is justified by exigent circumstances or consent.

See New York v. Harris , 495 U.S. 14, 15-17 (1990) (holding it “evident” that

Fourth Amendment was violated when officers knocked on suspect’s door,

displayed their guns and badges when he answered, entered the apartment, and

arrested suspect); Payton v. New York , 445 U.S. 573, 583, 590 (1980) (holding

absent exigent circumstances or consent, police may not cross the threshold of a

suspect’s house without a warrant to make a routine felony arrest). Because the

decision appealed was simply a determination that “the evidence could support a

finding that [an arrest within the home] occurred, the question decided is not truly

separable, and hence there is no final decision.”     Behrens v. Pelletier , 516 U.S.

299, 313 (1996) (quotations omitted).

       Further, although defendants profess to accept plaintiff’s facts as true, their

argument that they did not violate clearly established law actually relies on a

different version of events. That is, despite plaintiff’s evidence that all three

officers entered his house without justification or consent and then arrested him

once inside, the officers argue that the arrest occurred at the entryway to the

house, and that none of them entered the house prior to the arrest.    See

Appellant’s Opening Br. at 4-5. As defendants have not accepted plaintiff’s


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version of the facts as true, the availability of qualified immunity is not a question

of law that can be appealed immediately.

      The appeal is DISMISSED for lack of jurisdiction.



                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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