FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                       December 17, 2012
                      UNITED STATES COURT OF APPEALS                  Elisabeth A. Shumaker
                                                                          Clerk of Court
                                     TENTH CIRCUIT




 WESLEY T. MOORE,

       Plaintiff - Appellee,

 v.                                                         No. 12-6022
                                                            (W.D. Okla.)
 DANIEL GODSIL,                                      (D.C. No. 11-CV-00086-M)

       Defendant - Appellant,

 and

 CITY OF OKLAHOMA CITY,

       Defendant.


                               _________________________________

                           ORDER AND JUDGMENT*
                         ————————————————

Before KELLY and HOLMES, Circuit Judges, and MARTÍNEZ, District Judge.**
                   _______________________________




       *
          This order and judgment is not binding precedent, except under the doctrines of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.
       **
          The Honorable William J. Martínez, U.S. District Judge, District of Colorado,
sitting by designation.
       Defendant-appellant Daniel Godsil (“defendant”) brings this interlocutory appeal

from the district court’s denial of his motion for summary judgment based on qualified

immunity in this 42 U.S.C. § 1983 civil rights action. Because we lack subject matter

jurisdiction to entertain defendant’s appeal, we dismiss.

                                       I. Background

A. Factual Background1

       On July 24, 2009, Defendant Oklahoma City Police Officer Daniel Godsil

responded to a call at a convenience store regarding illegal activity. One suspect fled

from the area and was apprehended near plaintiff-appellee Wesley Moore’s house.

       Moore, who had nothing to do with the convenience store incident, came out of his

house to watch the suspect’s arrest. Moore’s mother, Mrs. Maxine Moore, also came out

of her residence next door to plaintiff’s house. Mrs. Moore informed her son that she

needed to go to the pharmacy to retrieve some medication. At this point, Mrs. Moore had

room to pull her vehicle out of her driveway. However, before Mrs. Moore could pull her

car out of her driveway, another police car pulled up and blocked her exit from her

driveway. This police car was driven by Officer Burton, and it parked parallel to Officer

Godsil’s car. Officer Godsil estimated that the two police cars were stopped in this

manner for a “couple of minutes, a few minutes.”

       Moore approached another police officer at the scene, Officer Garrett, who was

standing near Officer Burton’s and Officer Godsil’s cars. Moore asked Officer Garrett if

       1
           The following facts are taken as the district court found them.

                                              -2-
the police officers could move the police car blocking the driveway (Officer Burton’s car)

so that Mrs. Moore could leave to pick up her prescription medication. Officer Garrett

told Moore to “wait a minute” or “give him a minute.”

       Soon thereafter, Moore observed his mother trying to drive over the curb in an

attempt to drive her car out of the driveway, despite the obstructing presence of the police

car. After observing his mother’s actions, Moore entered the street and began walking

towards Officer Burton’s car in order to ask the police officers to move the police car

blocking his mother’s driveway. In response, Officer Godsil ordered Moore to exit the

roadway. Moore was standing in the road, close to the curb, when this order was given.

It is unclear how many times Officer Godsil gave this order to Moore.

       Moore subsequently argued with Officer Godsil about whether the road was part of

Moore’s property. Officer Godsil then placed Moore under arrest for interfering with an

official process by disobeying a lawful command. Moore estimated it was “a few

minutes” between the time the second car blocked his mother’s driveway and the time he

was arrested.

B. Procedural Background

       On December 29, 2010, Moore brought this action against Officer Godsil and the

City of Oklahoma City. The case was originally filed in state court, but was removed

to the United States District Court for the Western District of Oklahoma on January

28, 2011. Moore brought a claim against Officer Godsil under 42 U.S.C §1983 alleging

that Officer Godsil violated Moore’s constitutional and civil rights by falsely arresting

                                             -3-
him.

       On December 1, 2011, Officer Godsil filed a Motion for Summary Judgment (the

“motion”). The district court denied the motion on January 23, 2012. In reaching its

holding, the district court stated:

       [T]he Court finds that there are disputed issues of material fact
       which prevent this Court from being able to determine whether Officer
       Godsil had probable cause to believe that plaintiff disobeyed a lawful
       command of a police officer in the discharge of his duties. Having
       reviewed the evidence submitted, the Court finds that it is disputed and/or
       unclear as to (1) how many times Officer Godsil ordered plaintiff to exit
       the roadway; (2) where specifically plaintiff was standing each time
       Officer Godsil ordered plaintiff to exit the roadway; (3) whether plaintiff
       was blocking the open portion of the roadway, and (4) whether there was
       any traffic on the street at the time of the incident. The Court finds
       a resolution of these disputed facts is necessary to determine whether
       Officer Godsil’s order to plaintiff to exit the roadway was a lawful
       command of a police officer in the discharge of his duties.

       Regarding Officer Godsil’s argument that he was entitled to qualified immunity on

Moore’s §1983 claim, the district court stated:

       [T]he Court finds that there are disputed issues of material fact which
       prevent this Court from being able to determine whether Officer Godsil had
       probable cause to believe that Plaintiff disobeyed a lawful command of a
       police officer in the discharge of his duties. The Court further finds that
       these same disputed issues of material fact prevent the Court from being
       able to determine whether it would have been clear to a reasonable officer
       that probable cause was lacking under the circumstances, i.e. that the
       constitutional right at issue was clearly established in this specific situation.
       Accordingly, the Court finds that summary judgment is not appropriate on
       the grounds of qualified immunity.

       On January 24, 2012, Officer Godsil appealed the district court’s denial of

qualified immunity.


                                              -4-
                                        II. Discussion

A. Qualified Immunity

       Qualified immunity protects public officials performing discretionary functions

unless their conduct violates “clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 

, 818,

, 

 (1982). Qualified immunity leaves “ample room for

mistaken judgments,” protecting “all but the plainly incompetent or those who knowingly

violate the law.” Malley v. Briggs, 

, 341, 

, 

(1986).

       When a defendant seeks summary judgment on the basis of qualified immunity,

the burden shifts to the plaintiff to meet a strict two-part test. “First, the plaintiff must

demonstrate that the defendant’s actions violated a constitutional or statutory right.

Second, the plaintiff must show that the constitutional or statutory rights the defendant

allegedly violated were clearly established at the time of the conduct at issue.” Nelson v.

McMullen, 

, 1206 (10th. Cir. 2000). Only if the plaintiff makes this

two-part showing does the burden then shift back to the defendant to demonstrate “that

there are no genuine issues of material fact and that he or she is entitled to judgment as a

matter of law.” Id.

B. Jurisdiction

       We review issues of subject matter jurisdiction de novo. United States ex rel.

Hafter D.O. v. Spectrum Emergency Care, Inc., 

, 1160 (10th Cir. 1999).

                                               -5-
Federal courts are courts of limited jurisdiction. Therefore, “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.” Id. (citations omitted).

       An order denying summary judgment is a collateral order subject to immediate

appeal where (1) the defendant raised a qualified immunity defense, and (2) the issue

appealed concerns, not which facts might be provable, but whether certain facts establish

the violation of clearly established law. Mitchell v. Forsyth, 

, 527-28, 

, 

 (1985). An order denying qualified immunity is appealable

before trial only if it involves “neat abstract issues of law.” Johnson v. Jones, 

, 317, 

, 

 (1995) (quotations omitted); see also Gross v.

Pirtle, 

, 1156 (10th Cir. 2001). When a district court’s denial of qualified

immunity rests on the existence of genuine material disputes of fact, the order is not

immediately appealable. See Gross, 245 F.3d at 1156 (courts “clearly lack jurisdiction to

review summary judgment orders deciding qualified immunity questions solely on the

basis of evidence sufficiency”) (quotation omitted); Armijo ex rel. Chavez v. Wagon

Mound Pub. Sch., 

, 1259 (10th Cir. 1998) (“where the district court makes

a legal finding and states specific facts upon which that finding is based, we do not have

jurisdiction to delve behind the ruling and review the record to determine if the district

court correctly interpreted those facts to find a genuine dispute”).




                                             -6-
C. Analysis

       In this case, the right asserted by plaintiff is the Fourth Amendment right to be free

from arrest without probable cause. “Probable cause to arrest exists where, under the

totality of the circumstances, a reasonable person would believe that an offense has been

committed by the person arrested.” Morris v. Noe, 

, 1192 (10th Cir. 2012)

(internal citations omitted). The probable cause inquiry is an objective one. Id. “An

arrest is not invalid under the Fourth Amendment simply because the police officer

subjectively intended to base the arrest on an offense for which probable cause is lacking,

so long as ‘the circumstances, viewed objectively, justify’ the arrest.” Howards v.

McLaughlin, 

, 1142 (10th Cir. 2011) (quoting Devenpeck v. Alford, 

, 153 (2004)). “That is, an arrest is lawful as long as probable cause exists for

some offense.” Morris, 672 F.3d at 1192.

       The district court held that genuine disputes of material facts prevented the court

from finding that Officer Godsil had probable cause to arrest plaintiff, and we agree.

Here, the district court specifically noted the conflicting material facts related to the

incident and articulated how these conflicting facts prevented a finding of probable cause.

Viewing the facts in the light most favorable to plaintiff as the nonmoving party, which

the court must do when considering summary judgment, a reasonable officer could have

believed that he did not have probable cause to arrest plaintiff under clearly established

law. See Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 

, 1326 (10th Cir.), cert. denied, 

, 

, 

                                              -7-
(1999). Therefore, genuine issues of material fact prevent the court from finding that

there was probable cause to arrest plaintiff.

       Given the facts and law described above, the district court correctly stated that

“disputed issues of material fact prevent the [c]ourt from being able to determine whether

it would have been clear to a reasonable officer that probable cause was lacking under the

circumstances, i.e. that the constitutional right at issue was clearly established in this

specific situation.” Aplt. App. 646. Accordingly, genuine material disputed facts prevent

a finding that defendant breached his duty under the Fourth Amendment or is entitled to

qualified immunity.

       Because this court cannot “review the record to determine if the district court

correctly interpreted th[e] facts to find a genuine dispute,” we lack subject matter

jurisdiction to entertain this appeal. Armijo, 159 F.3d at 1259; see also Gross, 245 F.3d at

1158 (holding that when appellate review “would necessitate an assessment of the district

court's evidentiary conclusions, we must dismiss [defendants’] appeal of the district

court’s decision” denying qualified immunity).



                                       III. Conclusion

       For the foregoing reasons, the appeal of Daniel Godsil is DISMISSED.

                                                           Entered for the Court


                                                           William J. Martínez
                                                           United States District Judge

                                                -8-
12-6022, Moore v. City of Oklahoma City

HOLMES, Circuit Judge, concurring in the judgment.

       I respectfully concur in the judgment. I agree with the majority that the appeal

should be dismissed for lack of subject-matter jurisdiction. The proponent of subject-

matter jurisdiction has the burden to establish it. See, e.g., Raley v. Hyundai Motor Co.,

, 1275 (10th Cir. 2011) (“Where an appellant fails to lead, we have no duty

to follow. It is the appellant’s burden, not ours, to conjure up possible theories to invoke

our legal authority to hear her appeal.”). In my view, Officer Godsil has failed to do this.

       The district court expressly set forth what it considered to be genuine disputes of

material fact that caused it to deny Officer Godsil’s motion for summary judgment. I do

not need to agree with the district court’s assessment of the factual landscape. Indeed, it

would not be appropriate for me to second-guess that assessment. See, e.g., Clanton v.

Cooper, 

, 1153 (10th Cir. 1997). It suffices for me to observe that, absent

some cogent argument from Officer Godsil to the contrary, see, e.g., York v. City of Las

Cruces, 

, 1210 (10th Cir. 2008) (“Our jurisdiction also extends to situations

where a defendant claims on appeal that accepting the plaintiff’s version of the facts as

true, he is still entitled to qualified immunity.”), under controlling precedent, it

ineluctably follows from the district court’s resolution of Officer Godsil’s motion that we

must dismiss this appeal for lack of subject-matter jurisdiction, see, e.g., Fogarty v.

Gallegos, 

, 1154 (10th Cir. 2008); Gross v. Pirtle, 

, 1156

(10th Cir. 2001). Officer Godsil makes no such argument in his opening brief under the

rubric of jurisdiction. See Aplt. Opening Br. at 2 (“[T]his court’s jurisdiction necessarily
includes reviewing the record to determine whether there is a genuine issue for trial.”

(emphasis added)). And he only does modestly better—notably, in late-blooming

fashion—in his reply brief. See Aplt. Reply Br. at 4–5. In my view, Officer Godsil has

not carried his burden on the critical, threshold question of jurisdiction. Accordingly, this

matter should be dismissed. I thus respectfully concur in the judgment.




                                             -2-