Jerry Lum v. County of San Joaquin

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT AUG 04 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JERRY LUM, individually and as No. 12-15979 successor in interest to Jeremy Lum and DOROTHEA TIMMONS, individually D.C. No. 2:10-cv-01807-LKK- and as successor in interest to Jeremy DAD Lum,

Plaintiffs - Appellees, MEMORANDUM*

v.

COUNTY OF SAN JOAQUIN; et al.,

Defendants - Appellants.

Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Senior District Judge, Presiding

Argued and Submitted July 9, 2014 San Francisco, California

Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.

Ray Walters, Steven Pease, Robert Davis, Felipe Mendoza, the County of

San Joaquin, and the City of Lathrop (collectively “Defendants”) appeal the district

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. court’s partial denial of their motion for summary judgment on the claims brought

by Jerry Lum and Dorothea Timmons…

*450 MEMORANDUM *

Ray Walters, Steven Pease, Robert Davis, Felipe Mendoza, the County of San Joaquin, and the City of Lathrop (collectively “Defendants”) appeal the district court’s partial denial of their motion for summary judgment on the claims brought by Jerry Lum and Dorothea Timmons (collectively “Plaintiffs”). Reviewing de novo, see Liberal v. Estrada, 632 F.3d 1064, 1073 (9th Cir.2011), we affirm in part and dismiss in part.

1. We have jurisdiction to review the district court’s denial of qualified immunity on the Fourth Amendment claim. See Mitchell v. Forsyth, 472 U.S. 511, 530 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985); Huskey v. City of San Jose, 204 F.3d 893, 896 (9th Cir.2000) (“Even though the parties dispute some of the facts, this court has jurisdiction over the legal question the individual defendants have raised regarding, whether [Plaintiffs’] version of the facts can sustain a claim that [Jeremy Lum’s] clearly established constitutional rights ha[d] been violated.”). Viewing the evidence in the light most favorable to Plaintiffs, Munger v. City of Glasgow Police Dep't, 227 F.3d 1082 , 1087 (9th Cir.2000), an officer could not have reasonably believed there was…

concurring in part and dissenting in part:

Our memorandum disposition represents the correct manner in which to decide all of the issues therein except that part determining that we have jurisdiction to decide the Fourteenth Amendment claim qualified immunity issues. There is no question that the district court order only addressed the merits of the Fourteenth Amendment question: The district court did not apply qualified immunity standards. Thus, we cannot determine qualified immunity as to the Fourteenth Amendment claims and should dismiss these claims. See Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir.2011); Huskey v. City of San Jose, 204 F.3d 893, 905 (9th Cir.2000). There is no precedent authorizing jurisdiction on the basis that the district court believed it had decided an issue. One only has to review the district court opinion to reach this conclusion.