22-413 Jok v. City of Burlington, et al.

United States Court of Appeals For the Second Circuit

August Term 2022

Argued: May 31, 2023 Decided: March 15, 2024

No. 22-413

MABIOR JOK,

Plaintiff-Appellee,

v.

CITY OF BURLINGTON, VERMONT; BRANDON DEL POZO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE FOR THE CITY OF BURLINGTON, VERMONT; JOSEPH CORROW, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER FOR THE CITY OF BURLINGTON, VERMONT,

Defendants-Appellants,

JASON BELLAVANCE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER FOR THE CITY OF BURLINGTON, VERMONT; JANINE WRIGHT, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS A POLICE OFFICER FOR THE CITY OF BURLINGTON, VERMONT,

Defendants.

1 Appeal from the United States District Court for the District of Vermont No. 2:19CV00070, William K. Sessions III, Judge.

Before: LEE, PÉREZ, AND MERRIAM, Circuit Judges.

Plaintiff-appellee Mabior Jok alleges that defendant-appellant Joseph Corrow, an officer of the Burlington Police Department, used excessive force in violation of the Fourth Amendment when he took Jok to the ground outside of a bar in Burlington, Vermont. Jok brought this suit asserting a variety of claims against Corrow, the City of Burlington, and other police officers in the United States District Court for the District of Vermont (Sessions, J.). Defendants moved for summary judgment, asserting that Corrow was entitled to qualified immunity. The District Court denied summary judgment, finding that disputes of material fact precluded a finding of qualified immunity. Corrow filed an interlocutory appeal. We hold that Corrow has failed to establish appellate jurisdiction because he continues to assert disputes of fact, and no pure question of law is presented for our review. We therefore DISMISS the interlocutory appeal for lack of appellate jurisdiction.

ROBB A. SPENSLEY, Chadwick & Spensley, PLLC, Pittsford, VT, for Plaintiff-Appellee.

PIETRO J. LYNN, Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, VT, for Defendants-Appellants.

SARAH A. L. MERRIAM, Circuit Judge:

In the early morning hours of September 8, 2018, plaintiff-appellee Mabior

Jok and a group of people were standing outside a bar in Burlington, Vermont.

2 The group was loud. Defendant-appellant Joseph Corrow, an officer of the

Burlington Police Department who was on patrol in the area, approached the

group, having been “drawn to an altercation . . . by multiple males yelling.”

App’x at 142. Much of what happened next is hotly disputed, but all agree that

shortly thereafter, Corrow placed his hands on Jok and took him to the ground,

using what Corrow claimed was “a modified arm bar.” Id. at 168. Jok hit his

head on the sidewalk, lost consciousness, and started bleeding; as a result, he

was taken by ambulance to the hospital. Jok was charged with disorderly

conduct, but the charge was later dismissed. See Jok v. City of Burlington, No.

2:19CV00070(WKS),

, at *1 (D. Vt. Feb. 14, 2022). He thereafter

brought suit against Corrow and others, asserting a variety of claims including,

as relevant here, a claim that Corrow used excessive force against him in

violation of his Fourth Amendment rights.

Corrow moved for summary judgment on several grounds, including that

he was entitled to qualified immunity. The United States District Court for the

District of Vermont (Sessions, J.), denied the motion, concluding: “In this case,

there are disputes of fact and those disputes are material and genuine. Summary

judgment therefore cannot be granted on the basis of qualified immunity.”

at

3 *8. Corrow 1 then filed the instant interlocutory appeal, challenging that denial.

We hold that Corrow has failed to establish appellate jurisdiction, and

accordingly we dismiss the appeal.

I. Applicable Law

A. The Appellant Bears the Burden of Establishing Appellate Jurisdiction.

Under

, our appellate jurisdiction is generally limited to

reviewing “final decisions” of United States District Courts.

The statute is

designed to “disallow appeal[s] from any decision which is tentative, informal or

incomplete.” Cohen v. Beneficial Indus. Loan Corp.,

(1949).

“Generally, a final decision is one ‘that ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment.’” Bey v. City of New

York,

, 163 (2d Cir. 2021) (quoting Rabbi Jacob Joseph Sch. v.

Province of Mendoza,

(2d Cir. 2005)).

It is beyond dispute that a party seeking to invoke the jurisdiction of a

1The Notice of Appeal lists Joseph Corrow, the City of Burlington, Vermont, and Brandon del Pozo, as appellants. However, the Appellants’ brief makes arguments only on behalf of Corrow, and, indeed, refers to “Appellant” in the singular throughout. See, e.g., Appellants’ Br. at 1 (“[T]he issue on appeal is the District Court’s denial of Appellant Officer Corrow’s Motion for Summary Judgment on the basis of qualified immunity.”). We therefore proceed to evaluate the issues on appeal only as to Corrow. 4 federal court bears the burden of establishing it. See, e.g., Blockbuster, Inc. v.

Galeno,

(2d Cir. 2006) (“The line of cases confirming the rule that

the party invoking jurisdiction bears the burden is a venerable one.”). This

principle extends to appellate jurisdiction; the Federal Rules of Appellate

Procedure make it clear that an appellant must demonstrate that the Court has

appellate jurisdiction over the matter. See Fed. R. App. P. 28(a)(4)(B) (“The

appellant’s brief must contain . . . a jurisdictional statement, including . . . the

basis for the court of appeals’ jurisdiction, with citations to applicable statutory

provisions and stating relevant facts establishing jurisdiction . . . .”). Here, it is

Corrow, as the party seeking to invoke this Court’s appellate jurisdiction, who

bears the burden of establishing it. See Jelfo v. Hickok Mfg. Co.,

(2d Cir. 1976) (per curiam) (“The burden to show appealability rests upon

plaintiffs, who ask us to assume jurisdiction.”); see also Lujan v. Defs. of Wildlife,

(1992); Platinum-Montaur Life Scis., LLC v. Navidea

Biopharmaceuticals, Inc.,

, 617 (2d Cir. 2019) (“It is well-settled that

the party asserting federal jurisdiction bears the burden of establishing

jurisdiction, and it must prove jurisdiction by a preponderance of evidence.”

5 (citation and quotation marks omitted)). 2

B. An Order Denying Summary Judgment on Qualified Immunity Grounds Is Immediately Appealable Only Where the Order Turns on a Question of Law, and the Appellant Does Not Dispute the Material Facts.

The denial of a motion for summary judgment is immediately appealable

only in very limited circumstances. Normally, “we have no jurisdiction to hear

an immediate appeal from a district court order denying summary judgment

because such an order is not a final decision” under

. Demoret v.

Zegarelli,

(2d Cir. 2006). We may exercise jurisdiction under the

“collateral order doctrine” over “a narrow class of decisions that do not

terminate the litigation, but must, in the interest of achieving a healthy legal

2 The Circuits are in agreement on this point. See, e.g., Est. of Ceballos v. Husk,

(10th Cir. 2019) (“As the appellant, he bears the burden of establishing our appellate jurisdiction.”); SCF Waxler Marine, L.L.C. v. ARIS T M/V,

(5th Cir. 2018), as revised (Oct. 30, 2018) (“[The Appellants] bear the burden of establishing this court’s appellate jurisdiction over this appeal, and there is no need to explore jurisdictional bases the appellant does not address.” (citation and quotation marks omitted)); Ozenne v. Chase Manhattan Bank (In re Ozenne),

(9th Cir. 2016) (“On appeal, the appellant has the burden of establishing that the appellate court has jurisdiction to hear the case.”); U.S. Fid. & Guar. Co. v. Arch Ins. Co.,

(1st Cir. 2009) (“[T]he burden of establishing appellate jurisdiction rests with the party who asserts its existence.” (citation and quotation marks omitted)); Porchia v. Norris,

(8th Cir. 2001) (“[A]n appellant must prove that necessary preconditions to the exercise of appellate jurisdiction — including the timely filing of a notice of appeal — have been fulfilled.”). 6 system, nonetheless be treated as final.” Digit. Equip. Corp. v. Desktop Direct,

Inc.,

(1994) (citation and quotation marks omitted). “That small

category includes only decisions that are conclusive, that resolve important

questions separate from the merits, and that are effectively unreviewable on

appeal from the final judgment in the underlying action.” Swint v. Chambers

Cnty. Comm’n,

(1995).

“[A] decision denying a defendant the defense of qualified immunity

satisfies the collateral order doctrine” in certain limited circumstances,

specifically, “to the extent that it turns on an issue of law.” Coollick v. Hughes,

(2d Cir. 2012) (citation and quotation marks omitted).

We lack interlocutory jurisdiction to immediately review denials of

summary judgment based on “determinations of evidentiary sufficiency.”

Behrens v. Pelletier,

(1996); see also Salim v. Proulx,

(2d Cir. 1996) (“[D]eterminations of evidentiary sufficiency at summary

judgment are not immediately appealable . . . if what is at issue in the sufficiency

determination is nothing more than whether the evidence could support a

finding that particular conduct occurred . . . .” (alterations in original) (quoting

Behrens,

)); Doninger v. Niehoff,

(2d Cir. 2011)

7 (“We do not, however, have jurisdiction to review a denial of qualified immunity

to the extent it is based on a district court’s finding that there is enough evidence

in the record to create a genuine issue as to factual questions that are, in fact,

material to resolution of the qualified immunity claim.”).

Generally, we also lack jurisdiction over interlocutory appeals “from

denials of qualified immunity if resolution of the immunity defense depends

upon disputed factual issues.” Washington v. Napolitano,

, 103 (2d

Cir.) (citation and quotation marks omitted), cert. denied,

(2022);

see also In re State Police Litig.,

(2d Cir. 1996) (“Thus, where the

district court has ruled that adjudication of the immunity defense requires the

resolution of genuinely disputed questions of fact, the denial of summary

judgment is not immediately appealable.”). However, even when a district court

denies qualified immunity based on the presence of disputed material facts, an

appellant may still invoke appellate jurisdiction on an interlocutory basis if the

appellant “contends that on stipulated facts, or on the facts that the plaintiff

alleges are true, or on the facts favorable to the plaintiff that the trial judge

concluded the jury might find, the immunity defense is established as a matter of

law.” Salim,

; accord Washington, 29 F.4th at 103.

8 Thus, an interlocutory appeal of a denial of qualified immunity may be

brought if the district court’s denial of qualified immunity “turns on an issue of

law” –– that is, where the issue appealed “is a purely legal one.” Johnson v.

Jones,

(1995) (quoting Mitchell v. Forsyth,

, 528

n.9 (1985)). If, however, the district court denies qualified immunity because of a

dispute over material facts, the appellant must also establish one of the

following: (1) that the parties have agreed to “stipulated facts,” (2) that the

appellant has agreed to “facts that the plaintiff alleges are true,” or (3) that the

appellant has agreed to “facts favorable to the plaintiff that the trial judge

concluded the jury might find.” Salim,

; see also Franco v. Gunsalus,

, 174 (2d Cir. 2020) (“Defendants wishing to obtain immediate

review of a denial of qualified immunity may nonetheless do so by accepting, for

purposes of the appeal only, plaintiff’s version of the disputed facts.”); Francis v.

Fiacco,

, 139 (2d Cir. 2019). Indeed, the Supreme Court has taken

“pains to make clear that the denial of a claim of qualified immunity may

appropriately be appealed immediately only ‘to the extent that it turns on an

issue of law.’” In re State Police Litig.,

(emphasis altered) (quoting

Johnson,

).

9 The appellant bears the burden of demonstrating that the requirements are

met. See Platinum-Montaur Life Scis., LLC, 943 F.3d at 617. These requirements

ensure that we “review immunity denials only to the narrow extent they turn on

questions of law.” Bolmer v. Oliveira,

(2d Cir. 2010); see also In

re State Police Litig.,

(“To be appealable immediately, the

qualified-immunity denial must present ‘a legal issue that can be decided with

reference only to undisputed facts and in isolation from the remaining issues of

the case.’” (quoting Johnson,

)). “[S]tringent” enforcement of these

conditions also honors the Supreme Court’s instruction that the “narrow”

collateral order doctrine should “never be allowed to swallow the general rule

that a party is entitled to a single appeal, to be deferred until final judgment has

been entered.” Digit. Equip. Corp.,

(citation and quotation marks

omitted).

II. The Court Lacks Jurisdiction Over This Appeal.

Corrow, as the appellant, has failed to satisfy his burden of establishing

jurisdiction over this interlocutory appeal. Accordingly, we dismiss the appeal

for lack of appellate jurisdiction.

The District Court held that “[s]ummary judgment . . . cannot be granted

10 on the basis of qualified immunity” because there existed “disputes of fact and

those disputes are material and genuine.” Jok,

, at *8. Those

disputes have neither been resolved nor set aside for purposes of this appeal. To

the contrary, they remain vigorously disputed.

First, the parties dispute whether Jok punched, or even attempted to

punch, someone as Corrow approached the scene. See id. at *2. Corrow

maintains that he “watched as Jok threw either an overhand or haymaker punch,

and [he] heard the punch hit the other individual’s face.” Appellants’ Br. at 5

(citation and quotation marks omitted). Conversely, Jok maintains that he “did

not punch anybody.” Appellee’s Br. at 10. Jok claims that he “and the person he

was arguing with had stepped back from each other with their hands at their

sides prior to Officer Corrow slamming [him] face first to the ground.” Id.

Second, the parties dispute what occurred in the moments before Corrow

took Jok to the ground. See Jok,

, at *2. Corrow claims that he

“placed his hands on Jok and attempted to turn Jok around to place him in

handcuffs.” Appellants’ Br. at 5. Corrow states that “[i]n response, Jok began to

raise his arms, clench his fists, and assume the bladed stance characteristic of a

fighter,” which Corrow “recognized . . . as pre-fight or pre-assaultive cues.”

11 On the other hand, Jok contends that he “never resisted Officer Corrow, who

approached silently and unseen from outside [his] field of vision.” Appellee’s Br.

at 11.

Third, the parties dispute the atmosphere around the group of people

outside of the bar when Corrow approached the group. See Jok,

,

at *2. Corrow argues that testimony describing “members of the group as pissed

off, yelling, very drunk, and threatening to shoot one another . . . confirms the

group was, at the very least, tense.” Appellants’ Br. at 4 (citation and quotation

marks omitted). Corrow states that “[t]he tension in the group escalated when

Jok punched another member of the group in the face.” Id. at 5. Jok claims that

“the scene was calming down prior to Officer Corrow slamming [him]” and that

“[he] did not punch anybody and the tension in the group had deescalated prior

to Officer Corrow’s involvement.” Appellee’s Br. at 9, 10.

Finally, the parties dispute the extent of knowledge Corrow and other

Burlington Police Department officers had of Jok before the incident. See Jok,

, at *3. Corrow asserts that “[d]uring his time in Burlington,

Vermont prior to this incident, Jok engaged in a degree of criminal and violent

behavior that made him known to members of the Burlington Police

12 Department.” Appellants’ Br. at 3. Corrow claims that “Jok interacted with the

Burlington Police Department frequently enough to become familiar with

members of the Burlington Police Department himself.” Id. at 4. Jok disputes this

characterization, claiming that “Officer Corrow was most likely unaware of what

[he] now tries to describe as Mr. Jok’s known tendency towards physical

violence.” Appellee’s Br. at 9.

The District Court relied upon these factual disputes in denying summary

judgment, and resolving them is a “necessary predicate” to determining whether

Corrow is entitled to qualified immunity. Brown v. Halpin,

(2d

Cir. 2018) (quoting State Emps. Bargaining Agent Coal. v. Rowland,

(2d Cir. 2007)). As such, this interlocutory appeal is not limited to a question

of law. See

(“The question of whether Halpin is entitled to qualified

immunity is accordingly not a pure question of law that can be decided on

interlocutory appeal because it depends on the resolution of a factual dispute . . .

.”).

In his Jurisdictional Statement, Corrow cites to Bizzarro v. Miranda,

(2d Cir. 2005), for the following principle: “We have jurisdiction to

review the denial of a motion for summary judgment on the basis of qualified

13 immunity if the defendant is entitled to immunity as a matter of law on the

plaintiff’s version of the facts.” Appellants’ Br. at 1. He acknowledges, as he

must, that to establish our jurisdiction over this interlocutory appeal, he would

have to agree to “the facts as alleged by the plaintiff.” Salim,

. But

Corrow has not done so. To the contrary, as detailed above, Corrow’s arguments

on appeal depend entirely on his “versions of contested facts.” Terebesi v.

Torreso,

(2d Cir. 2014). Even in arguing that he did not violate

Jok’s clearly established rights, Corrow points to his account of what transpired,

arguing the factual contention that “Jok was not an unresisting detainee who

posed no threat to officers or public safety. On the contrary, . . . Jok posed a risk

both to Corrow and to the general public.” Appellants’ Br. at 15. In sum, Corrow

persists in disputing the facts underlying the District Court’s decision.

In his Reply, apparently recognizing his problem, Corrow claims that he

“does not substitute his own rendition of the facts, but, instead, argues based on

the undisputed facts in this matter.” Reply Br. at 3. He further contends that

“[s]ince [his] arguments for reversing the District Court’s decision on the

qualified immunity issue are grounded in undisputed facts, this Court has

jurisdiction over this matter.”

These statements, however, amount to nothing

14 more than lip service. In actuality, Corrow refuses to accept Jok’s facts and

continues to advance his own version of events. For instance, in arguing that he

should be entitled to qualified immunity because the precedent cited by the

District Court did not “match with the facts of this case,” Corrow repeats his

claims that “Jok was not an unresisting detainee who posed no threat to officers

or public safety,” that “Jok posed a risk both to Officer Corrow and to the general

public,” and that “Jok resisted Officer Corrow’s attempt to handcuff and arrest

Jok and signaled to Officer Corrow that he intended to fight with him.”

Appellants’ Br. at 14–15. 3 Indeed, Corrow’s own summary of his argument on

appeal asserts that because “the evidence in the record demonstrates Jok was

violent, was posing a threat to Officer Corrow, and was posing a threat to the

3Corrow further contends that the facts he relies on are “undisputed” because they are “documented in the video record of this incident.” Reply Br. at 3. However, the body-worn camera (“BWC”) footage submitted in this case does not “clearly contradict[] the version of the story told by” Jok. Scott v. Harris,

(2007). Viewing “the facts in the light depicted by the videotape” does not put these factual disputes to rest because the BWC footage does not depict the entire scene.

. In fact, in direct contrast to Corrow’s claims that the BWC footage supports his version of the facts, the District Court concluded that “a reasonable interpretation of the bodycam footage is that Jok did not appear to be the aggressor in a fight nor was he about to strike Officer Corrow, and that force was used by Officer Corrow immediately without any verbal command or warning.” Jok,

, at *2.

15 public, the precedent cited by the District Court is inapposite, and the District

Court’s denial of qualified immunity to Officer Corrow was error.” Id. at 17.

Corrow does not accept, even for the limited purposes of pursuing this

appeal, Jok’s version of the facts, or any set of stipulated facts. Corrow’s

conclusory assertion in his reply brief –– belied by his own briefing –– that he

agrees to undisputed facts is not sufficient. In fact, Corrow continues to rely on

disputed facts; as such, we are not presented with a question of law, and Corrow

may not seek “immediate review” of the District Court’s denial of qualified

immunity. Franco, 972 F.3d at 174. He has failed to satisfy his burden of

establishing appellate jurisdiction over this interlocutory appeal, and the appeal

is therefore dismissed. 4

III. Conclusion

For the reasons set forth herein, this appeal is DISMISSED for lack of

appellate jurisdiction.

4 See Tierney v. Davidson,

(2d Cir. 1998) (noting that for Court of Appeals to exercise appellate jurisdiction when a district court rules that “disputes of fact preclude summary judgment,” a defendant must show that “he is entitled to qualified immunity even under plaintiff’s version of the facts”); Terebesi,

(“In all other respects, the defendants’ arguments on appeal rely on disputed issues of fact and the appeal is therefore DISMISSED for lack of jurisdiction.”). 16