The opinion of the court was delivered by: WILLIAM M. SKRETNY
The different factual versions being advanced by the parties are fully set forth in this Court's Decision and Order ("Decision") entered on April 26, 1993. In that Decision, this Court denied the motions of defendants Cedric Holloway and Marvin Sanford for summary judgment on their defenses of qualified immunity. These defendants argued that, given their version of the facts, plaintiff's decedent had no clearly established constitutional right to be protected from the force that was used against her, and that they had an objectively reasonable belief that their conduct did not violate her constitutional rights. This Court rejected defendants' argument, and held that because there was substantial evidence supporting the factual scenarios presented by both plaintiff and defendants, summary judgment was unwarranted on defendants' claims of qualified immunity. This Court wrote:
As noted above, factual issues exist regarding the objective reasonableness of defendants' use of force. Similar factual issues preclude this Court from ruling as a matter of law that, under the circumstances that existed, Brantley had no constitutional right to be free from the use of deadly force against her, or that the officers had a reasonable belief that they were not violating Brantley's constitutional rights. It cannot yet be said what the true circumstances were. Therefore, summary judgment on the issue of qualified immunity is unwarranted.
On May 7 and 11, 1993 defendants filed Notices of Appeal of this Court's Decision and Order, "insofar as said order denied qualified immunity and related issues" (Notices of Appeal, p. 1). On May 11, 1993 counsel for the parties appeared before this Court for a status conference, at which defendants' notices of appeal were addressed. Counsel advised this Court that they would be seeking a stay pending resolution of their appeal. By Order of this Court entered on May 12, 1993, counsel for the defendants were directed to submit authority for the issuance of a stay together with their motions. On May 14 and 18, 1993 defendants filed their motions for a stay. On May 14, 1993 counsel for defendant Holloway submitted a Memorandum of Law in Support of Motion for Stay Pending Appeal ("D. Memo."). On May 21, 1993 plaintiff filed a Cross Notice of Motion Opposing Stay and for Conditioning Stay on Bond in the Alternative, accompanied by a Memorandum of Law in Opposition to Defendants Motion for Stay Pending Appeal ("P. Memo.").
The Supreme Court has explained that although the Courts of Appeals have jurisdiction only over "final decisions" of the district courts pursuant to 28 U.S.C. § 1291, a "final decision" is not necessarily the last order that can possibly be made in a case. Mitchell v. Forsyth, 472 U.S. 511, 524, 105 S. Ct. 2806, 2814, 86 L. Ed. 2d 411 (1985). A district court order can be appealed if it falls within "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. at 524-25, 105 S. Ct. at 2814 (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1225, 93 L. Ed. 1528 (1949)). In Mitchell, the Court explained that in some cases a district court's denial of summary judgment on the issue of qualified immunity may be appealed under Cohen's "collateral order doctrine". "Accordingly," the Court wrote, "we hold that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable "final decision" within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Id. at 530, 105 S. Ct. at 2817 (emphasis added).
In the present case, however, this Court's denial of summary judgment on the issue of qualified immunity turned not on an issue of law, but on issues of fact. As this Court explained in its previous Decision and Order, qualified immunity cannot be determined as a matter of law if material factual issues exist. Decision, p. 16 (citing Rivera v. United States, 928 F.2d 592 (2d Cir. 1991)). See also Finnegan v. Fountain, 915 F.2d 817, 821 (2d Cir. 1990). This Court determined that there are sufficient facts in the record to permit a reasonable jury to conclude that defendant was fatally shot after she had made no threatening comments to the officers and was standing unarmed at some distance from the officers, and that the officers were standing outside of their car. Therefore, this Court held that defendants Holloway and Sanford were not entitled to qualified immunity as a matter of law. Because genuine issues exist regarding the facts and circumstances surrounding the event, this Court could not make the legal determination that Brantley had no constitutional right to be free from the use of deadly force against her, or that the officers had a reasonable belief that they were not violating Brantley's constitutional rights. See Krause v. Bennett, 887 F.2d 362 (2d Cir. 1989).
In Kaminsky v. Rosenblum, 929 F.2d 922 (2d Cir. 1991), the Second Circuit explicitly held that a district court's denial of summary judgment on the issue of qualified immunity is not an appealable order within the scope of Cohen and Mitchell where the denial was premised upon the existence of factual issues. In Kaminsky, the district court denied defendants' motion for summary judgment on the issue of qualified immunity because it determined that factual issues existed regarding the nature of defendants' actions. The Court of Appeals dismissed defendant's appeal, writing:
Consequently, because a factual finding is essential to resolving the issue of qualified immunity, the denial of appellants' summary judgment motion was not based on a misapprehension or misapplication of law. Inasmuch as there are unresolved disputed questions of fact outstanding, the district court's order is not final. Hence, we lack jurisdiction over the order appealed from and must dismiss the appeal.
Id. at 927. See also Golino v. City of New Haven, 950 F.2d 864 (2d Cir. 1991), cert. denied by Lillis v. Golino, U.S. , 120 L. Ed. 2d 902, 112 S. Ct. 3032 (1992); Mahoney v. Hankin, 844 F.2d 64 (2d Cir. 1988) (because resolution of the qualified immunity defense involved questions of both law and fact, court ...