Elvia Cordero v. Todd Froats

Plaintiff Elvia Cordero, as personal representative of the estate of Robert Montes,

filed a complaint in the United States District Court for the District of New Mexico

* After examining the briefs and appellate record, this panel has determined unanimously

to honor the parties’ request for a decision on the briefs without oral argument. See Fed.

R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without

oral argument.

FILED

United States Court of Appeals

Tenth Circuit

September 2, 2015

Elisabeth A. Shumaker

Clerk of Court

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against the City of Las Cruces, New Mexico (the City), and three officers of the Las

Cruces Police Department. Plaintiff asserted that the officers violated Montes’s

constitutional rights by using excessive force when they shot and killed him. The district

court denied the defendants’ motion for summary judgment, concluding that a jury could

find that the officers’ use of deadly force was unreasonable. The defendants filed an

interlocutory appeal, arguing that the court’s conclusion was contrary to the record. We

requested briefing on the issue of appellate jurisdiction and now dismiss the appeal for

lack of jurisdiction.

The officers argued below that they are entitled to qualified immunity. We have

jurisdiction to review an interlocutory appeal from the denial of qualified immunity. See

Felders v. Malcom, 755 F.3d 870, 878 (10th Cir. 2014). “[W]e ordinarily do not consider

questions about what facts a jury might reasonably find—that is the exclusive job of the

district court.” Id. We do, however, recognize an exception to that rule when “the

version of events the district court found a reasonable jury could believe is blatantly

contradicted by the record.” Id. n.2 (internal quotation marks omitted).

In this case the parties agree that our jurisdiction depends on whether the evidence

of Plaintiff’s witnesses is “blatantly contradicted by the record.” Those witnesses state

that the officers shot Montes while he was handcuffed, unarmed, and fleeing. The

officers acknowledge that if those witnesses can be believed, they are not entitled to

qualified immunity. But they contend that audio recordings, a videotape, and physical

evidence totally undermine Plaintiff’s witnesses. They argue that “[t]he totality of the

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record establishes that Montes retrieved, pointed, and fired a handgun at the Officers

before they returned fire . . . .” Aplt. Br. at 11.

We have reviewed that evidence. We agree that it strongly supports the

defendants’ position. But we cannot say that it “blatantly contradicts” the Plaintiff’s

witnesses. The standard is a very difficult one to satisfy. For example, it would not be

enough that we disagreed with the district court and think that summary judgment for the

defendants should have been granted. If that were the standard, we could, contrary to

Felders, review a denial of summary judgment whenever the district court’s assessment

of the facts was questioned. If the video showed Montes holding a gun and firing at the

officers, the contradiction would be blatant. See Scott v. Harris, 550 U.S. 372 (2007).

But the video here does not clearly show Montes holding a gun. We hold that this is not

the rare, exceptional case in which we can resolve disputed facts.

As for the City’s appeal, a municipality cannot raise the defense of qualified

immunity, so it ordinarily could not appeal the denial of its summary-judgment motion.

If we had jurisdiction over the officers’ appeal, we might have pendent jurisdiction to

hear the City’s appeal. See Lynch v. Barrett, 703 F.3d 1153, 1163 (10th Cir. 2013). But

because we lack jurisdiction to hear the officers’ appeals, we necessarily lack jurisdiction

to hear the City’s.

We DISMISS the appeal for lack of jurisdiction.