Estate of Wayne Steven Anderson v. Marsh, No. 19-15068 (9th Cir. 2021)
Annotate this CaseThe Ninth Circuit dismissed, based on lack of jurisdiction, an interlocutory appeal of the district court's order denying qualified immunity to defendant in a 42 U.S.C. 1983 action alleging that defendant used excessive force when he shot Wayne Anderson. The panel explained that it lacked jurisdiction to review defendant's arguments because his interlocutory appeal challenges only the district court's conclusion that there is sufficient evidence to create a genuine dispute as to the factual question that will determine whether defendant's use of force was reasonable. In this case, rather than "advanc[ing] an argument as to why the law is not clearly established that takes the facts in the light most favorable to [the Estate]," which the panel would have jurisdiction to consider, defendant contests "whether there is enough evidence in the record for a jury to conclude that certain facts [favorable to the Estate] are true," which the panel did not have jurisdiction to resolve.
Court Description: Civil Rights. The panel dismissed, for lack of jurisdiction, an interlocutory appeal from the district court’s order, on summary judgment, denying qualified immunity to California Highway Patrol Officer John Marsh in an action brought pursuant to 42 U.S.C. § 1983 alleging Marsh used excessive force when he shot Wayne Anderson. The panel determined that the crux of Marsh’s appeal was that the district court “erred in finding disputed issues of material fact” concerning whether Anderson made a sudden movement as though he were reaching for a weapon. Applying the rule articulated in Foster v. City of Indio, 908 F.3d 1204 (9th Cir. 2018), Pauluk v. Savage, 836 F.3d 1117 (9th Cir. 2016), and Advanced Building & Fabrication, Inc. v. California Highway Patrol, 918 F.3d 654 (9th Cir. 2019), the panel concluded that it lacked jurisdiction over the appeal because, in light of his concessions at oral argument, Marsh challenged only the district court’s determination that there was a genuine factual dispute as to whether Anderson appeared to reach for a weapon before Marsh shot him. Rather than arguing that, taking the facts in the light most favorable to Anderson’s Estate, the law was not clearly established that Marsh’s conduct was unconstitutional— which the panel would have had jurisdiction to consider— Marsh contested whether there was enough evidence in the record for a jury to conclude that a certain fact favorable to ESTATE OF ANDERSON V. MARSH 3 the Estate was true, which the panel did not have jurisdiction to resolve. Because it could not review on interlocutory appeal the question of evidence sufficiency Marsh raised, the panel dismissed his appeal for lack of jurisdiction. Dissenting, Judge W. Fletcher stated that he was sympathetic with the panel majority, for the law in this area is extraordinarily confused. However, Marsh did not dispute that he was at the scene. Indeed, he conceded that he shot Anderson. Therefore, under Plumhoff v. Rickard, 572 U.S. 765 (2014), and other case law, the panel had jurisdiction to hear this appeal. Judge Fletcher closed his dissent with a plea to the Supreme Court to state clearly, in an appropriate case, whether and in what circumstances an interlocutory appeal may be taken when the district court, viewing disputed evidence in the light most favorable to plaintiff, has denied a motion for summary judgment based on qualified immunity.
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