BOGGS, Circuit Judge.
In this action brought under 42 U.S.C. § 1983, Plaintiff Germaine Bomar alleges that Officer Daniel Main, the sole remaining defendant, violated her clearly established right not to be subjected to excessive force. Bomar claims that Main pepper-sprayed her in the eye and punched her in the jaw—both after she had been successfully restrained and handcuffed. In the proceedings below, Defendants denied that Main took those actions and moved for summary judgment based on qualified immunity. The district court held that a genuine issue of material fact existed for trial and denied the motion. Main now appeals that order, and we dismiss his appeal for lack of jurisdiction.
On September 11, 2007, police officers conducted an evening drug raid at a house in Pontiac, Michigan. Officer Main was one of the officers in charge. During the course of the raid, the officers learned that a vehicle containing drugs and weapons, including AK-47 assault rifles, was scheduled to arrive shortly. Approximately 15 minutes later, at around 9:20 p.m., a vehicle described as a tan or pewter sedan showed up at the house. The vehicle reversed and fled at high speed when officers attempted to secure it. The officers noted that the vehicle was driven by a black male, possibly in his twenties.
The vehicle fled down a street that had only one forward path of egress—Bomar's street. Officer Main immediately hopped into an unmarked police car with two other officers and entered Bomar's street from the other direction, hoping to intercept the fleeing suspect. When the officers arrived, however, the suspect sedan was nowhere to be found. Main slowly drove up the street, observing driveways to determine whether the suspect had pulled up to a house to hide. The officers stopped to observe a vehicle that looked similar to the one they were chasing, and a young black male—later identified as K.M., Bomar's twelve-year-old son—stood up from behind the car, as though he had been crouching.
Officer Main followed K.M. into the house. Once inside, Main grabbed K.M., who had moments earlier told Bomar that he was being chased. Chaos ensued. Not realizing that Main was an officer,
The parties dispute how Main responded to Bomar's verbal combativeness. Bomar testified that, after she had been restrained on the ground and handcuffed, Main sprayed her in the eye with pepper spray and punched her in the jaw. K.M. testified to the same, that after Main handcuffed Bomar, he pepper-sprayed and punched her.
The officers promptly concluded that twelve-year-old K.M. was not the assault-rifle-toting suspect they had been pursuing and released both him and his mother from handcuffs. Soon after the officers departed, K.M. complained of a headache,
Bomar, individually and on behalf of K.M. and K.B., filed a six-count complaint on June 20, 2008, asserting both federal and state-law claims against Main, several other police officers, and the City of Pontiac.
Main appeals the district court's denial of qualified immunity and argues that this court has jurisdiction to review the denial under 28 U.S.C. § 1291.
In general, denials of summary judgment are not appealable final orders. However, certain summary judgment orders denying qualified immunity may be appealable pursuant to the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 525-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir.2006).
Significantly, not all summary judgment orders denying qualified immunity are appealable. The Supreme Court has distinguished between denials of qualified immunity at the summary judgment stage that are based on the district court's "determination about pre-existing clearly established law" and, on the other hand, those that are based on the district court's "determination about genuine issues of fact for trial." Johnson v. Jones, 515 U.S. 304, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (internal punctuation omitted). In short, the former are appealable final orders; the latter are not. Id. at 313, 115 S.Ct. 2151.
Pursuant to Johnson, this circuit has held that interlocutory jurisdiction is conferred only where the defendant's appeal "involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established law." Gregory, 444 F.3d at 742 (quoting Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir.1998)). Accordingly, if the defendant disputes the plaintiff's version of the facts and wishes to file an interlocutory appeal of the district court's denial of qualified immunity at the summary judgment stage, "the defendant must. . . be willing to concede the most favorable view of the facts to the plaintiff for purposes of the appeal." Berryman, 150 F.3d at 563. The underlying principle is that, in the qualified-immunity context, this court may entertain interlocutory appeals of denials of summary judgment in order to resolve legal disputes, not factual ones.
The district court denied Main's motion for summary judgment because it found "a genuine issue of material fact regarding whether Ms. Bomar was sufficiently restrained, and thus, whether Defendant Main's presumed use of force after Ms. Bomar was handcuffed was excessive and requires that he be denied qualified
Main fights this conclusion with a novel jurisdictional theory. Main latches onto language used in prior decisions of this circuit to argue that this court can review a district court's denial of summary judgment for factual reasons if it considers only the facts alleged by the plaintiffs. Reply Br. at 10-11 (quoting Shehee v. Luttrell, 199 F.3d 295, 299 (6th Cir.1999) ("[I]n order for an interlocutory appeal to be appropriate, a defendant seeking qualified immunity must be willing to concede to the facts as alleged by the plaintiff and discuss only the legal issues raised by the case.")). Significantly, Main interprets "the facts as alleged by the plaintiff[s]" to include plaintiffs' deposition testimonies and nothing else. Here, and although he concedes that the officers' testimony indicates otherwise, Main maintains that we may consider only the depositions of Bomar and her children, which he interprets to reveal that Bomar continued to struggle after being handcuffed.
However, the language relied upon by Main—"the facts as alleged by the plaintiff"—is not the touchstone of our jurisdictional inquiry, but is rather one application of the underlying principle established by the Supreme Court in Johnson: if the defendant disputes the facts in an appeal of a denial of qualified immunity at the summary judgment stage, this court's jurisdiction is at an end. In most cases, a defendant's concession to the facts "as alleged" by the plaintiff will be sufficient to avoid a factual dispute and allow this court to decide pure legal issues. See Shehee, 199 F.3d at 299. Here, however, Bomar relies upon the entire record, not only plaintiffs' deposition testimony, in order to create a genuine issue of material fact for trial. In that context, Main's "concession" is nothing more than a dispute over what happened, which is precisely what we are without jurisdiction to entertain at this stage of the proceeding.
Accordingly, Main's interpretation of the phrase "the facts as alleged by the plaintiff" is far too narrow. The facts as alleged by the plaintiff are not simply the facts that can be gleaned from the plaintiff's deposition testimony, but are rather the facts in the entire record, interpreted in the light most favorable to the plaintiff. Meals v. City of Memphis, 493 F.3d 720, 726-27 (6th Cir.2007) ("[A] defendant is required to limit her argument to questions of law premised on facts taken in the light most favorable to the plaintiff."). The scope of the facts that may be considered on appeal is thus consistent with the familiar summary judgment inquiry of viewing all record evidence in the light most favorable to the plaintiff.
Main argues that Rule 56 is irrelevant because he is not appealing the summary judgment "portion" of his motion for summary judgment, but rather only the qualified-immunity portion of the motion. But qualified immunity is Main's defense on the merits. That defense, like any other argument on the merits, can be asserted at various procedural stages of the proceeding—from a motion to dismiss to a trial on the merits—and the procedural stage dictates the scope of the factual inquiry. See Gunasekera v. Irwin, 551 F.3d 461, 471 (6th Cir.2009) (reviewing a grant of qualified immunity at the motion-to-dismiss stage). Here, Main asserted his qualified-immunity defense at the summary judgment stage, and he cannot appeal only the merits of his summary judgment motion (somehow divorced from the applicable standards governing a motion for summary judgment) any more than a defendant whose Rule 12(b)(6) motion was denied can appeal only the merits of his motion and rely on favorable evidence outside the pleadings.
We therefore reject Main's proposed jurisdictional analysis, which is inconsistent not only with the underlying legal principle articulated in Johnson, but also with Rule 56. And, because Main hangs his hat entirely on his novel jurisdictional theory, we lack jurisdiction to consider his arguments on the merits, all of which are rife with factual disputes and present no question of pure law. Huckaby v. Priest, 636 F.3d 211, 216 (6th Cir.2011) (dismissing appeal of denial of qualified immunity at the summary-judgment stage where defendants "refuse to concede the facts in the light most favorable to [plaintiff], and fail to raise a legal issue on appeal that is separate from their interpretation of the disputed facts in a light most favorable to Defendants").
For the foregoing reasons, we DISMISS Officer Main's appeal for lack of jurisdiction.