The Tenth Circuit Court of Appeals published its opinion in Fancher v. Barrientos on Friday, July 12, 2013.
Defendant Johnny Barrientos, a deputy of the Doña Ana County Sheriff’s Department, appealed the district court’s denial of his motion for summary judgment in a 28 U.S.C. § 1983 action brought by Lucia Fancher, individually and on behalf of the estate of her son, Nick Dominguez. Fancher alleged Barrientos used excessive force in violation of the Fourth Amendment when he shot Dominguez seven times following a confrontation in Mesquite, New Mexico. Dominguez died as a result of one or more gunshot wounds. Barrientos asserted he was entitled to qualified immunity because his use of deadly force was objectively reasonable and did not violate clearly established law. The district court granted Barrientos’s motion for summary judgment to the extent Fancher’s claim arose from the firing of the initial shot, but denied the motion to the extent the claim arose from the firing of the subsequent six shots.
On appeal, Barrientos made three arguments. First, he asserted the district court erred in analyzing the second through seventh shots separately from the first shot. Next, he argued the district court did not sufficiently consider the risks posed to third parties in analyzing the reasonableness of shots two through seven.
The Tenth Circuit held it lacked jurisdiction to consider the first two arguments. The court has jurisdiction to review all final decisions of the district courts of the United States. Ordinarily, an order denying summary judgment is not a “final decision.” The denial of qualified immunity to a public official is immediately appealable under the collateral order doctrine to the extent it involves abstract issues of law. Barrientos’s argument amounted to nothing more than a request for review of the factual conclusions of the district court, a task which exceeded the scope of the Tenth Circuit’s jurisdiction on interlocutory review of the denial of qualified immunity.
Third, Barrientos argued the law was not clearly established that his actions violated the Fourth Amendment. The Tenth Circuit was not persuaded. Under the circumstances of the case, the Court had no trouble concluding Barrientos lacked probable cause to believe Dominguez posed a threat of serious harm to Barrientos or others at the time he fired shots two through seven. The Tenth Circuit further had no trouble concluding a reasonable officer in Barrientos’s position would have known that firing shots two through seven was unlawful.
Thus, the Tenth Circuit affirmed the denial of summary judgment by the district court.