Frederick P. Henry v. Jones, 515 U.S. 304, 316-17 1995

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1810
FREDERICK P. HENRY,
Plaintiff - Appellee,
versus
ROBERT PURNELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(CA-04-979-JFM)
Submitted: November 24, 2004 Decided: January 3, 2005
Before WILLIAMS, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
John F. Breads, Jr., Columbia, Maryland, for Appellant. Eric M.
May, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Somerset County Deputy Sheriff Robert Purnell appeals the
district court’s order denying his motion for summary judgment in
Frederick P. Henry’s 42 U.S.C. § 1983 (2000) suit alleging
excessive force during an arrest. Purnell asserted in his motion
that he was entitled to qualified immunity. On appeal, Henry
alleges that this court lacks jurisdiction over this interlocutory
appeal. We agree.
In his complaint, Henry asserted that Purnell, mistakenly
believing Henry was fleeing from an arrest, shot Henry in the
elbow. Purnell’s motion for summary judgment included Purnell’s
affidavit, which alleged that when Henry ran away as Purnell was
attempting to arrest him, Purnell “reached for [his] Taser.” As he
ran after Henry, Purnell “believed that [he] had unholstered [his]
Taser and was holding it in [his] hand.” When he fired and heard
the sound of a gunshot, Purnell realized he had grabbed the wrong
weapon. Purnell argued that, because he reasonably (but
mistakenly) believed that he was acting in accordance with
constitutional mandates, he was entitled to qualified immunity. In
response, Henry challenged Purnell’s allegations by noting that
(1) there is a marked difference between the two weapons carried by
Purnell, and (2) Purnell took approximately sixty seconds after
shooting Henry to claim that the shooting was accidental.

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The district court denied Purnell’s motion. Although the
court determined that an accidental shooting would not give rise to
a constitutional claim, the court noted that “Mr. Purnell’s
assertions, both now and contemporaneously at the time of the
incident, that he had drawn the wrong weapon do not establish that
he is entitled to judgment as a matter of law. These assertions
necessarily depend upon his credibility and therefore give rise to
a genuine dispute of material fact.”
While interlocutory orders ordinarily are not appealable,
orders rejecting a defendant’s claim of qualified immunity are,
provided the denial rests on a purely legal determination that the
facts establish a violation of clearly established law. Johnson v.
Jones, 515 U.S. 304, 316-17 (1995); Mitchell v. Forsyth, 472 U.S.
511, 530 (1985). However, “to the extent that the appealing
official seeks to argue the insufficiency of the evidence to raise
a genuine issue of material fact--for example, that the evidence
presented was insufficient to support a conclusion that the
official engaged in the particular conduct alleged--we do not
possess jurisdiction . . . to consider the claim.” Winfield v.
Bass, 106 F.3d 525, 529-30 (4th Cir. 1997). In other words, if the
official argues that the record evidence is insufficient to support
the facts as articulated by the district court, the reviewing court
lacks jurisdiction to entertain the appeal. Gray-Hopkins v. Prince
George’s County, 309 F.3d 224, 229 (4th Cir. 2002).

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*Purnell also argues that the district court did not find that
such a factual dispute existed. We reject this argument. The
district court found that Purnell’s “assertions [that he
inadvertently drew his gun] necessarily depend upon his credibility
and therefore give rise to a genuine dispute of material fact.”
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On appeal, Purnell argues that the record does not
support the district court’s conclusion that a factual dispute
exists regarding his intent, and that he is therefore entitled to
qualified immunity. * Purnell’s argument, however, is not a legal
one, but instead challenges the district court’s factual findings.
We therefore lack jurisdiction over and dismiss the appeal. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED

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