     Case: 11-50060     Document: 00511636265         Page: 1     Date Filed: 10/18/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         October 18, 2011

                                     No. 11-50060                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



LUCIA ESMERALDA OPORTO, Individually and as Personal Representative
of the Estate John Dalton Martinez, and on behalf of all of the heirs at law;
ANGEL JOSE MARTINEZ, Individually; ELIJAH ISAIAH MARTINEZ,
Individually,

                                                  Plaintiffs–Appellees
v.

OFFICER RODOLFO MORENO, Badge Number 2646, individually and in
his official capacity as a police officer of the City of El Paso Police
Department; OFFICER EDWIN MAYORGA, Badge Number 2472,
individually and in his official capacity as a police officer of the City of El
Paso Police Department; Jointly and Severally,

                                                  Defendants–Appellants



                   Appeal from the United States District Court
                        for the Western District of Texas
                                   3:10-CV-110


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-50060

      Plaintiffs-Appellees Lucia Esmeralda Oporto, Angel Jose Martinez, and
Elijah Isaiah Martinez (“Plaintiffs”), filed a civil rights suit against Defendants-
Appellants Officers Rodolfo Moreno and Edwin Mayorga (“Officers”), after John
Dalton Martinez (“Martinez”), was shot and killed by the Officers in the course
of their duties. The Officers sought, but were denied, summary judgment based
on qualified immunity because there were material issues of fact in dispute with
respect to whether the Officers used reasonable force. The Officers filed an
interlocutory appeal. We DISMISS the appeal because the order denying
summary judgment was based on a dispute over material fact, not law, and is
thus not a final, appealable order.
                         FACTS AND PROCEEDINGS
      On March 29, 2008, the Officers, members of the El Paso Police
Department, were operating undercover. After hearing gunshots, the Officers
saw someone in dark clothing chasing another individual while extending his
right arm holding what appeared to be a gun. They exited their vehicle and
followed the two individuals into Lucky’s Grocery Store. There is dispute about
what transpired inside the store, but ultimately the Officers fired their weapons
at Martinez who died from the wounds.
      The Officers testified that Martinez had a gun as he ran into the store and
they heard gunfire upon entering the store. The Officers further claim that they
ordered Martinez to drop his gun, but he refused to do so. Instead, Martinez ,
holding a black semi-automatic handgun in his right hand prepared to fire, and
turned toward Defendant Mayorga. Fearing for their lives, the Officers testified,
they fired at Martinez to prevent him from firing his weapon.
      The Plaintiffs sued pursuant to 42 U.S.C. § 1983. They claimed that the
Officers used excessive force against Martinez in violation of the Fourth
Amendment. In support of their claim, Plaintiffs offered an affidavit of Plaintiff
Oporto, stating that she was inside the store and witnessed all the relevant

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                                   No. 11-50060

events in question. Oporto stated that her husband, Martinez, was unarmed
and posed no threat when he was in the store. The Officers moved for summary
judgment based on qualified immunity. The district court found there were
genuine issues of material fact with respect to the Fourth Amendment claim and
denied the Officers’ motion for summary judgment. The Officers now appeal.
                            STANDARD OF REVIEW
      This court reviews a district court’s denial of summary judgment based on
qualified immunity de novo. Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th
Cir. 2004). “In an interlocutory appeal in which the defendant asserts qualified
immunity, to the extent that the district court found that genuine factual
disputes exist, we accept the plaintiff’s version of the facts (to the extent
reflected by proper summary judgment evidence) as true.” Id. Summary
judgment is proper when there is no genuine issue of material fact “and the
movant is entitled to judgment as a matter of law.” Condrey v. SunTrust Bank
of Ga., 429 F.3d 556, 562 (5th Cir. 2005); see also FED. R. CIV. P. 56(a).


                                  DISCUSSION
      A.     Qualified Immunity
      The Officers claim that the district court should not have denied summary
judgment based on qualified immunity.
      To determine whether a defendant is entitled to qualified immunity,
      this court engages in a two-pronged analysis, inquiring (1) whether
      the plaintiff has alleged a violation of a constitutional right and, if
      so, (2) whether the defendant’s behavior was objectively reasonable
      under clearly established law at the time the conduct occurred.
Hampton v. Oktibbeha Cnty. Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007)
(citing Easter v. Powell, 467 F.3d 459, 462 (5th Cir. 2006)). “If the plaintiff fails
to state a constitutional claim or if the defendant’s conduct was objectively



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                                   No. 11-50060

reasonable under clearly established law, then the government official is entitled
to qualified immunity.” Id. (citing Easter, 467 F.3d at 462).
      B.    Jurisdiction Over Interlocutory Appeals
      Before addressing the merits, we must first determine whether we have
jurisdiction over this interlocutory appeal. Generally, unless the decision is final
under 28 U.S.C. § 1291, this court lacks jurisdiction to review denial of a
summary judgment motion. However, there are two exceptions. This court has
jurisdiction when the denial of summary judgment on qualified immunity
grounds is based on a conclusion of law.
      [O]rders denying qualified immunity are immediately appealable
      only if they are predicated on conclusions of law, and not if a
      genuine issue of material fact precludes summary judgment on the
      question of qualified immunity. Stated another way, we have
      jurisdiction over law-based denials of qualified immunity, but do not
      have jurisdiction over a genuine-issue-of-fact-based denial of
      qualified immunity.
See Naylor v. State of La., Dep’t of Corr., 123 F.3d 855, 857 (5th Cir. 1997) (per
curiam). This court also has jurisdiction if the disputed facts are not material
to determinations of qualified immunity. Manis v. Lawson, 585 F.3d 839, 842
(5th Cir. 2009) (“Where, as here, the district court finds that genuinely disputed,
material fact issues preclude a qualified immunity determination, this court can
review only their materiality, not their genuineness”). Thus, we must first
determine whether the order denying qualified immunity was based on a
conclusion of law or a genuine issue of material fact. If based on a fact, we must
determine whether that fact is material to the qualified immunity
determination.
            1.      Law or Fact?
      The question before the district court was whether the Officers’ use of
deadly force was objectively reasonable. We have held that deadly force is
reasonable “when the officer reasonably believes that the suspect poses a threat

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                                   No. 11-50060

of serious harm to the officer or to others.” Manis, 585 F.3d at 843. Here, that
reasonability determination requires a resolution of disputed facts. Oporto’s
signed affidavit claims the Officers shot an “unarmed, nondangerous suspect.”
If true, the shooting was an impermissible use of deadly force. The Officers,
however, testified they saw a gun in Martinez’s possession and shot him when
he turned toward them with the gun. If true, the shooting was objectively
reasonable. Thus, the determination of whether Martinez was armed and
dangerous – a question of fact, not law – is the basis for the district court’s order.
             2.     Materiality of the Fact
      We must next determine whether the factual dispute is material to the
Officers’ defense. This court has limited jurisdiction to review only whether the
disputed fact is material, not whether it is genuine. Manis, 585 F.3d at 842. “An
issue is material if its resolution could affect the outcome of the action.” Wyatt
v. Hunt Plywood Co. Inc., 297 F.3d 405, 409 (5th Cir. 2002). “If a factual dispute
must be resolved to make the qualified immunity determination, that fact issue
is material and we lack jurisdiction over the appeal.” Manis, 585 F.3d at 843.
Whether Martinez was armed is the fact in dispute. The district court found
that evidence contrary to the Officers’ testimony would undermine their
qualified immunity defense. The officers contend that Oporto’s affidavit is not
material because she is not a credible witness. They further allege that the
weight of physical and forensic evidence and the testimony of unbiased witnesses
supports their defense. These arguments raise questions of truth, not whether
these facts, if proven, would be material to the outcome of the suit. We agree
with the district court that the disputed facts are material because Oporto’s
affidavit, if credited by a jury, could affect the outcome of the case. Thus, we
cannot review the denial of the motion for summary judgment.




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                                No. 11-50060

                              CONCLUSION
     Because the district court found material facts were in dispute, we lack
jurisdiction to consider the denial of summary judgment and therefore DISMISS
the appeal. Naylor, 123 F.3d at 857.




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