FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         December 4, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JANELLE BRIDGES, individually and as
the surviving spouse of Shane Allen
Bridges, deceased, and as the Mother and
Next Friend of: A.B., a minor child; B.B., a
minor child; S.B. Jr., a minor child; A.C., a
minor child; J.S., a minor child; J.H., a
minor child,

      Plaintiffs - Appellees,                               No. 16-5177
                                                (D.C. No. 4:15-CV-00126-GKF-PJC)
v.                                                          (N.D. Okla.)

KYLE WILSON, in his individual and
official capacity,

      Defendant - Appellant,

and

MIKE REED, in his individual and official
capacity; MAYES COUNTY,

      Defendants.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, EBEL, and MATHESON, Circuit Judges.
                   _________________________________




       *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      The Appellees, heirs of Shane Bridges (hereinafter the “estate of Shane

Bridges” or the “estate”), brought this action under 42 U.S.C. § 1983. The estate

alleges Appellant Kyle Wilson—a deputy sheriff in Mayes County, Oklahoma—used

excessive force in violation of the Fourth Amendment in shooting and killing Bridges

on January 1, 2014. Following discovery, Wilson filed a motion for summary

judgment. The district court determined that a jury could find Bridges did not fire or

even point a gun at Wilson. By taking this view—the version of the facts most

favorable to the estate, the non-moving party—the district court concluded Wilson

did not carry his burden of proving that he was entitled to qualified immunity. The

district court subsequently denied Wilson’s summary judgment motion because there

were genuine issues of material fact. Wilson now brings this interlocutory appeal,

arguing that we have jurisdiction under 28 U.S.C. § 1291. Because Wilson asks us to

resolve disputes of material fact that do not rest on discrete questions of law, we lack

appellate jurisdiction and dismiss this appeal.

                                           I

      When reviewing a district court’s denial of qualified immunity at the summary

judgment stage, we generally do not make our own factual determinations, but rely

instead on the district court’s recitation of the facts. See Johnson v. Jones, 

, 319–20 (1995). Here, the district court found the following:

                    This case arises from the fatal shooting of Shane
             Bridges by [Kyle Wilson, a deputy sheriff of the Mayes
             County Sheriff’s Office,] on January 1, 2014 . . . . Wilson
             received a dispatch call notifying him that there was an
             intoxicated, possibly suicidal person who was possibly

                                           2
                threatening harm to a child at the Bridges’s residence.
                Wilson arrived and exited his vehicle and stood by the
                front, driver’s side tire of his patrol car. Shane Bridges
                was in the front room of the house when Wilson arrived,
                and went to the door, opening and closing the door.
                Wilson fired thirteen shots in Bridges’s direction, hitting
                Bridges twice and fatally wounding him . . . .
                       [V]iewing the evidentiary materials in the light most
                favorable to the plaintiffs, Wilson did not identify himself
                as law enforcement officer, order Bridges to drop a
                weapon, or give Bridges any other commands; Bridges did
                not fire a gun; and, at the time of the shooting, the distance
                between Wilson and Bridges was approximately thirty to
                thirty-five feet.

D. Ct. Order at 1, 3–4 (record citations omitted).

          Wilson argues for a different version of the facts on appeal, as he did in his

summary judgment briefing before the district court. In its summary judgment order,

the district court explained why it discounted Wilson’s version of the events. It

stated:

                       Deputy Wilson testified that after he exited his
                vehicle, Bridges opened the front door of the residence,
                stepped onto the front porch, and fired a single shot,
                although not in Wilson’s direction. Wilson testified that
                he then shouted Shane Bridges’s name, after which Shane
                turned and started firing again. Turning a gun on Wilson
                would be a hostile motion, even if Bridges did not fire.
                Although the testimony of Janelle Bridges[, Shane
                Bridges’s widow,] and Rex Dale Cowan[, a neighbor and
                first responder who lived in the home closest to the
                Bridges and heard gunshots,] addresses whether Shane
                Bridges fired a gun [and suggests Shane Bridges did not
                fire his gun], the only evidentiary material addressing
                whether Shane Bridges turned the gun in Wilson’s
                direction is Wilson’s own testimony.        None of the
                evidentiary materials submitted by the parties contradicts
                Wilson’s testimony on this issue. However, “courts should
                be cautious on summary judgment to ‘ensure that the

                                               3
             officer is not taking advantage of the fact that the witness
             most likely to contradict his story—the person shot dead—
             is unable to testify.’” [Pauly v. White, 

,
             1079–80 (10th Cir. 2016)][1] (quoting Abraham v. Raso,
             

, 294 (3d Cir. 1999)). “[T]he court may not
             simply accept what may be a self-serving account by the
             police officer.” 

(quoting Scott v. Henrich, 

, 915 (9th Cir. 1994)). The court “must also look
             at the circumstantial evidence that, if believed would tend
             to discredit the police officer’s story, and consider whether
             this evidence could convince a rational factfinder that the
             officer acted unreasonably.” 

concludes a
             rational factfinder could—based on the testimony of
             Janelle Bridges and Rex Dale Cowan—conclude Wilson’s
             testimony that Bridges fired a gun was inaccurate, and
             could, accordingly, discredit Wilson’s testimony that
             Shane Bridges turned to point a gun at him.

D. Ct. Order at 4 (record citations omitted).

      Thus, the district court determined that, viewing the facts in the light most

favorable to the estate, Wilson committed a clearly established Fourth Amendment

violation. 

The district court then held “summary judgment is not

appropriate because genuine issues of material fact remain, including . . . whether

Bridges pointed or fired a gun at Wilson before Wilson shot Bridges, and thus

whether Wilson’s use of deadly force was objectively reasonable in light of the

circumstances.” 

Wilson then filed this interlocutory appeal of the district

court’s denial of qualified immunity. Vol. VIII at 1427.


      1
        The Supreme Court subsequently vacated this opinion. See Pauly v. White,

(2017).
      2
        In addition to this § 1983 excessive force claim against Wilson in his
individual capacity, the estate’s complaint also included a § 1983 claim against
                                                                        (continued . . .)
                                           4
                                           II

                                           A

       Before we can consider the merits of Wilson’s qualified immunity argument,

we must address the threshold question of whether we have appellate jurisdiction.

See Cox v. Glanz, 

, 1241 (10th Cir. 2015). Under 28 U.S.C. § 1291,

we can review “all final decisions of the district courts.” A denial of summary

judgment is ordinarily not an appealable final order under § 1291. Roosevelt–Hennix

v. Prickett, 

, 753 (10th Cir. 2013). Yet, under the collateral order

doctrine, a state official may appeal the district court’s denial of qualified immunity

at summary judgment—but only to the extent it involves abstract issues of law. See

Mitchell v. Forsyth, 

, 530 (1985); see also Fancher v. Barrientos, 

, 1198 (10th Cir. 2013).

       To satisfy the requirements for appellate jurisdiction under the collateral order

doctrine, the appellant-defendant “must establish that the district court’s order (1)

conclusively determined the disputed question, (2) resolved an important issue

completely separate from the merits of the case, and (3) is effectively unreviewable

on appeal from a final judgment.” Henderson v. Glanz, 

, 947 (10th Cir.

(continued . . .)

Wilson in his official capacity, an Oklahoma Government Tort Claims Act cause of
action against Wilson, claims against the Mayes County sheriff in his individual and
official capacities, and municipal liability claims against Mayes County. Although
the district court granted summary judgment on all of those claims, none of those
claims are relevant to this appeal, as we are merely addressing Wilson’s interlocutory
appeal from the denial of qualified immunity.

                                            5
2015) (quotation omitted); see also 

. If the district court

denied summary judgment because there was a genuine issue of material fact, we

lack jurisdiction because the defendant-appellant “may not appeal a district court’s

summary judgment order insofar as that order determines whether or not the pretrial

record sets forth a ‘genuine’ issue of fact for trial.” 

–20.

       Yet, even under Johnson and its progeny, a district court’s determination that

genuine issues of material fact preclude summary judgment does not necessarily bar

our exercise of appellate jurisdiction in all cases. See 

.

We still have jurisdiction to address the merits of the qualified immunity analysis,

but “only if our review would [not] require second-guessing the district court’s

determinations of evidence sufficiency.” 

v. Cram, 

, 1130 (10th Cir. 2001)). That is, “[w]e may not and do not . . . second guess the

district court’s determinations of evidence sufficiency,” T.D. v. Patton, 

, 1213 n.4 (10th Cir. 2017), because “‘whether or not the pretrial record sets

forth a genuine issue of fact for trial’ is not an abstract legal question, and a court of

appeals lacks jurisdiction to review a district court’s ruling on such a matter,”

Allstate Sweeping, LLC v. Black, 

, 1267 (10th Cir. 2013) (quoting

).

       We are left then with jurisdiction to hear cases in which “‘the defendant does

not dispute the facts alleged by the plaintiff’ and raises only legal challenges to the

denial of qualified immunity based on those facts.” 

(quoting Farmer v. Perrill, 

, 1258 n.4 (10th Cir. 2002)). By contrast,

                                             6
we lack jurisdiction if the defendant-appellant’s appeal presents a revised version of

the facts and challenges “the district court’s conclusion [that p]laintiffs presented

sufficient evidence to survive summary judgment.” 

v. Day, 

, 1018 (10th Cir. 2015)).

                                             B

       In this appeal from the denial of qualified immunity, Wilson challenges the

district court’s version of the facts. Wilson argues the district court “went out of its

way to ignore the undisputed fact that Shane Bridges pointed his gun toward

Wilson,” Aplt. Op. Br. at 29, because the paths of the bullets indicate that Bridges’s

arm may have been raised, 

and the estate allegedly has “no physical

evidence” to contradict Wilson’s testimony that Bridges pointed a gun at him. 

Wilson therefore argues that “viewing the facts in the light most favorable to

the” estate still requires that we reject the district court’s findings and accept the

assumption that Bridges “turned toward [Wilson] with a pointed firearm.” 

see also Aplt. Reply Br. at 6. Wilson then argues that, under this revised view of the

facts, he is entitled to qualified immunity because there was no clearly established

law which would have alerted a reasonable officer in Wilson’s position that his use of

deadly force would violate the Fourth Amendment. Aplt. Op. Br. at 30.

       The type of factual analysis that Wilson urges us to undertake “would require

second-guessing the district court’s determinations of evidence sufficiency.” 

(quotation omitted). In its summary judgment order, the district

court concluded that “genuine issues of material fact remain” regarding whether

                                             7
Bridges raised or fired a gun at Wilson. D. Ct. Order at 5–6. That is precisely the

type of evidentiary analysis that we lack jurisdiction to address. 

–20.

                                            C

      But that conclusion does not end our review. Even if, on appeal from a denial

of qualified immunity at summary judgment, a defendant-appellant challenges the

district court’s determinations of evidence sufficiency, we are still permitted to

address the merits in two circumstances: (1) when the record “blatantly contradict[s]”

the district court’s factual recitation, Scott v. Harris, 

, 380 (2007), or (2)

when the district court failed to specify the facts upon which it based the denial of

qualified immunity, 

–54 (holding that a review of

the district court record was appropriate because the district court merely provided a

short statement that the case was “quintessentially a jury matter”).

      Wilson makes two arguments in support of his contention that the record

blatantly contradicts the district court’s conclusion that a jury could find Bridges did

not point a gun at Wilson. Aplt. Op. Br. at 30–35. We conclude that neither

argument has merit.

      First, Wilson refers to his expert’s testimony that the paths of the two bullets

that entered Bridges’s body indicate Bridges had his right arm raised. 

But that testimony only provides the positioning of Bridges’s arm at the time the

bullets entered his body. It does not establish whether Bridges was inside or outside

of his home at the time, and thus whether Wilson could see Bridges and perceive him

                                            8
as a threat. Moreover, the expert’s testimony does not indicate whether there was a

gun in Bridges’s right hand when the bullets struck him.

      Second, Wilson argues Bridges must have been outside of his home at the time

of the shooting—a factual dispute that the district court did not explicitly address.

Wilson attempts to establish that Bridges was outside based on three pieces of

evidence: (1) his expert’s testimony that the paths of the bullet holes in the Bridges’s

front door show the door was closed throughout the shooting, (2) Janelle Bridges’s

testimony that she heard Shane Bridges open and close the front door, 

and

(3) Janelle Bridges’s testimony that she “stuck” her hands “out the door” to show she

did not have a gun after she discovered her husband lying on the floor in the living

room, Vol. II at 195. According to Wilson, this evidence conclusively establishes

that the front door was closed during the shooting, but became ajar thereafter.

Further, Wilson argues the only explanation for the door being open after the

shooting is that Shane Bridges was outside when Wilson shot Bridges, forcing

Bridges to retreat into the house and leave the door ajar behind him.

      But the evidence that Wilson cites does not directly contradict the district

court’s factual recitation for two reasons. First, Wilson mischaracterizes Janelle

Bridges’s testimony. She actually testified that she “heard [Shane Bridges] open the

door[,] . . . heard him shut the door and walk back around the couch[,] and then . . .

heard gunshots.” 

see also 

(“He opens the door, he sees there’s a

car, he shuts it and walks back.”). This testimony undermines Wilson’s argument

that Shane Bridges had to be outside at the time of the shooting. Further, Janelle

                                           9
Bridges’s testimony about sticking her hands out of the door was that she “ran to the

door and . . . put [her] hands up.” 

She did not explicitly testify about

whether the door was open or closed at the time. This inconclusive testimony does

not blatantly contradict the district court’s account, which did not address whether

Shane Bridges was inside or outside during the shooting or whether the door was

open following the shooting.

       Also, the inferences that Wilson draws from the three pieces of evidence

ignore the estate’s evidence about the shooting. The estate’s investigator identified

thirteen bullet holes outside of the Bridges’s house—three in Janelle Bridges’s

vehicle, three north of the front door, two south of the front door, and five in the front

door. Vol. VII, at 1019–38; see also Vol. VI, at 826–30. And the coroner recovered

two bullets from Shane Bridges’s body. The estate argues that, logically, unless two

of the bullet holes predated January 1, 2014, the bullets that entered and killed

Bridges had to have traveled through the house or front door before hitting him.

Thus, the estate argues there is evidence that Bridges was inside the house when he

was shot, and not outside pointing a gun at Wilson. At the very least, the estate’s

evidence counters the testimony that Wilson cites, and demonstrates that the record

does not blatantly contradict the district court’s factual recitation.

       Finally, we conclude the district court sufficiently articulated its reasoning for

finding that there was a genuine issue of material fact as to whether Bridges raised or

fired a gun at Wilson. In support of its determination that a jury could find that

Bridges never fired a shot at Wilson, the district court cited Janelle Bridges’s and

                                            10
Rex Dale Cowen’s testimony that it sounded as if shots were coming from only one

gun. And the district court noted that Wilson’s testimony was the only evidence to

support a finding that Bridges may have raised a gun and pointed it at Wilson. Since

a jury could discount Wilson’s credibility—in part, because there was “circumstantial

evidence” that could discredit Wilson’s version of the events—the district court

concluded there were genuine issues of material fact. D. Ct. Order at 4–6. The

district court’s ruling sufficiently identified the basis for concluding that genuine

issues of material fact remained. Cf. 

–54 (holding

the district court’s explanation was insufficient). Thus, we need not conduct our own

review of the record to determine whether there was support for the district court’s

conclusion.

                                           III

      Because this appeal focuses on second-guessing the district court’s ruling

regarding the sufficiency of the evidence, and because the district court’s reasoning

was sufficiently articulated and is not blatantly contradicted by the record, we

conclude that we lack jurisdiction and dismiss this appeal.


                                             Entered for the Court



                                             Mary Beck Briscoe
                                             Circuit Judge




                                           11