5th circuit lacks jurisdiction in 1983 action with two Mississippi police officers


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Martha Dee and Donald Gater were both employed by the Jackson Police Department (JPD) in the Investigative Division. Gater was a Commander in the division, and Dee was a detective. Dee alleges that on April 2, 2019, she was in the JPD building assisting another detective with a homicide investigation. She further alleges that when she and the other detective were leaving to perform investigatory work, Gater approached them in the hallway.

She contends Gater asked the other detective a question, but when the other detective did not answer, she responded instead. Gater then told Dee, “I was not talking to you.” Dee explained that she responded to Gater’s question because she knew the answer. Dee maintains that Gater then pulled out his loaded service revolver and pointed it directly at her forehead. Gater then returned the firearm to its holster and stated, “I’m sorry. I shouldn’t have done that.”

Gater denies he pointed his service revolver at Dee. He agrees that he approached the detectives, and that he spoke to them. Specifically, he contends that he talked to them about weapon retention and pulled out his firearm to demonstrate “firearm retention issues,” but that he never pointed a firearm at Dee.

Dee thereafter filed suit against Gater for unlawful seizure and excessive force under 42 U.S.C. § 1983. The district court determined that a genuine dispute of material fact existed as to whether Dee was seized as contemplated by the Fourth Amendment. Specifically, the court determined that Dee’s version of the facts supports that a jury could conclude a reasonable person felt seized, while Gater’s version supports the opposite conclusion. The district court also determined that based on the parties’ differing accounts of the incident, a genuine dispute of material fact also existed as to Dee’s excessive force claim. Based on these findings, the district court denied Gater’s motion for summary judgment based on qualified immunity. The 5th dismissed the appeal for lack of jurisdiction (in other words, the case continues).


Where the district court determines that genuine issues of material fact preclude a determination of qualified immunity, we have jurisdiction only to address the legal question of whether the genuinely disputed factual issues are material for the purposes of summary judgment. We have no jurisdiction to consider the correctness of the plaintiff’s version of the facts and cannot review the district court’s factual determination that a genuine factual dispute exists. See Ducksworth.

As he did in the district court, Gater argues that he did not seize Dee, and that both parties testified that no arrest occurred. Gater further argues that because Dee was not seized, then no excessive force could have been used. However, as the district court noted, a seizure occurs when a reasonable person would have believed that she was not free to leave. See SCOTUS United States v. Mendenhall, 446 U.S. 544 (1980). We agree with the district court that in light of the parties’ varying accounts, there is a genuine dispute whether a reasonable person would have believed she was free to leave.

As noted above, we lack jurisdiction to consider Gater’s appeal of the genuineness of the district court’s factual determinations. Therefore, we must dismiss this appeal.