                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 05a0155n.06
                             Filed: February 25, 2005

                                                  No. 04-1451

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT


PEGGY STRUTZ, MICHAEL STRUTZ, and                                )
STEPHANIE STRUTZ,                                                )
                                                                 )          ON APPEAL FROM THE
        Plaintiffs-Appellees,                                    )          UNITED STATES DISTRICT
                                                                 )          COURT FOR THE EASTERN
v.                                                               )          DISTRICT OF MICHIGAN
                                                                 )
OAKLAND COUNTY SHERIFF’S SERGEANT                                )                     OPINION
DOROTHY HALL, OAKLAND COUNTY                                     )
SHERIFF’S DEPUTY LONNIE MULLINS,                                 )
OAKLAND COUNTY SHERIFF’S DEPUTY KEITH                            )
CHRISTIE,                                                        )
                                                                 )
        Defendants-Appellants,                                   )
                                                                 )
OAKLAND COUNTY SHERIFF’S DEPARTMENT,                             )
                                                                 )
        Defendant.                                               )




BEFORE: NORRIS AND GIBBONS, Circuit Judges, TODD, District Judge.*

        PER CURIAM. Defendants, who are officers of the Oakland County, Michigan Sheriff’s

Department, appeal the district court’s denial of their motion for summary judgment based upon

qualified immunity.

                                                        I.



        *
          The Honorable James D. Todd, Chief District Court Judge for the Western District of Tennessee, sitting by
designation.
No. 04-1451
Strutz v. Hall

       Detailed facts underlying this appeal can be found in the district court’s opinion, Strutz v.

Hall, 808 F.Supp.2d 767 (E.D. Mich. 2004). Briefly, on the evening of December 31, 2000, the

defendant police officers responded to a complaint about a party that might involve teenage

drinking. When the officers arrived at the home in question, the owners, Michael and Peggy Strutz,

answered the door. The officers requested permission to enter the house to investigate alleged

teenage drinking, but the Strutzes refused. Instead, the Strutzes brought their two teenage children

to the door to let the officers visually assess their condition. The officers continued to press for

admission into the home, however, and a scuffle ensued. After placing the Strutzes under arrest, the

officers gave breathalyzer tests to every teenager present, and issued citations to all who registered

the presence of alcohol.

       Peggy, Michael, and Stephanie Strutz brought this suit on November 7, 2002, against these

officers and the Oakland County Sheriff’s Department, which is not party to this appeal. In their

complaint, plaintiffs alleged several causes of action. Of sole interest to us on appeal, however, are

plaintiffs’ federal constitutional claims under the Fourth and Fourteenth Amendments, which flow

from the warrantless entry into plaintiffs’ home.

                                                 II.

       Defendants have filed an interlocutory appeal on the district court’s denial of qualified

immunity. Although non-final orders are typically not appealable pursuant to 28 U.S.C. § 1291, the

Supreme Court has carved out an exception with respect to the denial of qualified immunity.

Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985) (denial of qualified immunity, like denial of

absolute immunity, should be immediately appealable). However, the Supreme Court clarified our

                                                -2-
No. 04-1451
Strutz v. Hall

jurisdiction over appeals involving the denial of immunity in Johnson v. Jones, 515 U.S. 304

(1995). The Court held that, to the extent the appeal turned on an issue of law, an interlocutory

appeal on the question of qualified immunity would lie. On the other hand, if “a defendant simply

wants to appeal a district court’s determination that the evidence is sufficient to permit a particular

finding of fact after trial, it will often prove difficult to find any such ‘separate’ question—one that

is significantly different from the fact-related legal issues that likely underlie the plaintiff’s claim

on the merits.” Johnson, 515 U.S. at 314. In short, when a legal determination respecting qualified

immunity requires the resolution of a disputed issue of material fact, appellate jurisdiction does not

exist under Mitchell. Id. at 314-15.

        Defendants raise the “community caretaker” standard as a defense to their actions, and for

the purposes of this appeal are willing to accept plaintiffs’ version of the facts. In order to invoke

this defense, the government action in question must be “totally divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v.

Dombrowski, 413 U.S. 433, 441 (1973). As the district court noted, “[u]nder this record, it must be

left to the trier of fact to determine whether Defendants sought only to ensure the welfare of the

children [when they administered breath tests], or whether they also sought to achieve law

enforcement objectives.” Strutz, 308 F.Supp.2d at 779.

        We conclude that the resolution of this case hinges on a question of fact, not a question of

law or a mixed question of law and fact. Under the circumstances of this case, it is irrelevant that

defendants concede the plaintiffs’ version of the facts because this appeal still turns on the same

issue of fact that the district court pointed out.

                                                     -3-
No. 04-1451
Strutz v. Hall

                                               III.

       For the foregoing reasons, the appeal is dismissed for lack of jurisdiction.




                                               -4-
