Appeal from the United States District Court for the District of Arizona; D.C. No. CV-88-0429-RMB B; Richard M. Bilby, Chief Judge, Presiding.
Stephen Reinhardt, Robert R. Beezer and Alex Kozinski, Circuit Judges.
KOZINISKI, Circuit Judge.
Plaintiff Ralph Duran directed a series of expletives and an obscene hand gesture at defendant Gilbert Aguilar, a police officer. Officer Aguilar responded by detaining and arresting Duran, who, along with his wife, now brings this lawsuit for injuries he suffered during the incident.
In the late evening of November 18, 1987, Aguilar and another officer of the Douglas, Arizona, Police Department were dispatched to a downtown hotel in response to a bartender's complaints about an unruly patron. The officers arrived to find Duran intoxicated and threatening the bartender. Aguilar and Duran exchanged a few heated words, following which Aguilar escorted Duran out. Duran left the bar in an automobile driven by his wife, Alice.
Soon thereafter, while out on patrol, Aguilar observed a car with a passenger who was directing an obscene gesture toward him through an open window. Aguilar did not know the passenger's identity at that time because the car had darkly-tinted glass, making it impossible to observe its occupants except through the open window. It was, however, the car driven by Alice Duran, who was taking her husband home.
Duran's obscene gesture caught Aguilar's eye, and Aguilar began following the car. As he followed the Durans down a rural highway beyond the Douglas city limits, Ralph Duran began yelling profanities in Spanish and continued to make obscene gestures. At this point, Aguilar identified the passenger as the man he had confronted at the bar. Believing that Duran was "probably not going to be friendly," Aguilar Depo. (Sept. 13, 1988), CR 33, at 80-81, Aguilar called for backup and prepared to make a traffic stop.
Aguilar and backup officer Rudy Salazar followed the Durans' car into a mobile home park, where it stopped in front of what turned out to be their residence. Aguilar does not contend that Duran was yelling or otherwise causing a disturbance when the car drove into the park. Nevertheless, Aguilar initiated a traffic stop by turning on his emergency lights. Aguilar ordered Duran to step away from the car, to which Duran replied "I don't have to." Aguilar Affidavit, CR 104, at 3. Aguilar then told Duran that the reason for the traffic stop was to find out why Duran had yelled profanities and made an obscene gesture toward him. Aguilar Depo. at 85-86. Duran responded with further profanities in both Spanish and English. In response, Aguilar decided to arrest Duran for disorderly conduct. Id. at 91-92. A scuffle ensued, during which Aguilar and Duran were injured before Duran was subdued and shackled. After his transport to the police station, it was discovered that Duran had a dislocated elbow requiring hospitalization. Duran claims to have suffered some permanent loss of range in his elbow.
The Durans brought this action for damages stemming from the allegedly unlawful stop and arrest against Aguilar, Salazar, the City of Douglas and various other police officers and city officials. The Durans filed a motion for partial summary judgment, seeking a determination of liability as to defendant Aguilar under 42 U.S.C. § 1983 (1982). Aguilar countered with his own motion for summary judgment on the grounds of qualified immunity. Following a hearing, the district court entered a single order ruling in favor of the Durans on both motions. Aguilar appeals the district court's order.*fn1
As a preliminary matter, the Durans contend that we lack jurisdiction over this appeal. A motions panel of this court has held that, on the basis of Mitchell v. Forsyth, 472 U.S. 511, 530, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985), we do have jurisdiction. See Duran v. City of Douglas, No. 89-15236 (9th Cir. Jun. 6, 1989) (Order). Under the law of the case doctrine, "one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case." Kimball v. Callahan, 590 F.2d 768, 770 (9th Cir.), cert. denied, 444 U.S. 826, 62 L. Ed. 2d 33, 100 S. Ct. 49 (1979). The law of the case doctrine, however, is inapplicable to the question of our jurisdiction to consider an appeal. United States v. Houser, 804 F.2d 565, 568-69 (9th Cir. 1986). We must therefore take a second look at plaintiffs' contention that we lack jurisdiction.
"The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States." 28 U.S.C. § 1291 (1982) (emphasis added). A district court's order denying a motion for summary judgment is not ordinarily a final decision, and is thus usually not reviewable on appeal. Roth v. Veteran's Admin., 856 F.2d 1401, 1404 (9th Cir. 1988). However, the Supreme Court has established a limited exception to this rule: "[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." Mitchell, 472 U.S. at 530. So long as the issue on appeal "is a purely legal one" - whether the facts alleged by the plaintiff support a claim of violation of a clearly established constitutional right - we have jurisdiction. See id. at 528 n. 9. Because Aguilar claims on appeal that the district court erred in finding that the Durans raised a material issue of fact as to whether defendant violated a clearly established right, we conclude that he may bring this appeal.
Likewise, Aguilar may appeal the district court's grant of summary judgment in favor of the Durans on the issue of section 1983 liability. The legal issues involved in that appeal - whether Aguilar violated clearly established constitutional protections - are identical to those governing the question of Aguilar's qualified immunity. As the relevant facts are not disputed, the resolution of the qualified immunity question will also decide the question of Aguilar's ...