Gerald Marshall v. Bruce Kirby

MEMORANDUM

The plaintiff, Gerald Marshall, sued the defendant, Lieutenant Bruce Kirby, alleging unlawful detention, use of excessive force, and arrest without probable cause, all in violation of the Fourth Amendment and 42 U.S.C. § 1983 . Kirby appeals from the trial court’s order denying his Rule 50(a) motion for judgment as a matter of law on qualified immunity grounds. The motion was made before the jury announced that it was unable to reach a unanimous verdict. The case thus comes to us in the posture of an interlocutory appeal. We dismiss the appeal and remand for further proceedings.

Our jurisdiction, or scope of review, in an appeal of a district court’s denial of an official’s motion for qualified immunity is limited to questions of law and does not extend to matters of fact or questions of evidence sufficiency. In Johnson v. Jones, 515 U.S. 304 , 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995), the Supreme Court held that “a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s ... order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id. at 319-20 , 115 S.Ct. 2151 . The…