Andrew Kane v. Brian Lewi
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:08-cv-01157-BEL. Copies to all parties and the district court. [998876564]. [11-1378, 11-1379]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1378
ANDREW KANE, Individually and as Personal Representative of
the Estate of Andrew Dwayne Cornish,
Plaintiff - Appellant,
v.
BRIAN LEWIS; JOHN LEWIS, Officer; JENSEN SHORTER, Officer;
LEAF A. LOWE, Officer; KENNETH MALIK, Individually and in
his Official Capacity as Chief of Police for the Cambridge
Police Dept.; THE COMMISSIONERS OF CAMBRIDGE, A Body
Corporate and Politic,
Defendants - Appellees.
No. 11-1379
ANDREW KANE, Individually and as Personal Representative of
the Estate of Andrew Dwayne Cornish,
Plaintiff – Appellee,
v.
BRIAN LEWIS; JOHN LEWIS, Officer; JENSEN SHORTER, Officer;
LEAF A. LOWE, Officer; THE COMMISSIONERS OF CAMBRIDGE, A
Body Corporate and Politic; KENNETH MALIK, Individually and
in his Official Capacity as Chief of Police for the
Cambridge Police Dept.,
Defendants – Appellants.
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Appeals from the United States District Court for the District
of Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:08-cv-01157-BEL)
Argued:
May 17, 2012
Decided:
June 18, 2012
Before KING, DUNCAN, and THACKER, Circuit Judges.
Dismissed by unpublished opinion.
Judge Duncan wrote
opinion, in which Judge King and Judge Thacker joined.
the
ARGUED: Terrell Roberts, ROBERTS & WOOD, Riverdale, Maryland,
for Appellant/Cross-Appellee.
Victoria M. Shearer, KARPINSKI,
COLARESI & KARP, PA, Baltimore, Maryland, for Appellees/CrossAppellants. ON BRIEF: Daniel Karp, KARPINSKI, COLARESI & KARP,
PA, Baltimore, Maryland, for Appellees/Cross-Appellants.
Unpublished opinions are not binding precedent in this circuit.
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DUNCAN, Circuit Judge:
This
appeal
and
cross-appeal
arise
from
the
district
court’s partial grant of summary judgment on appellant Andrew
Kane’s
claims
under
Constitution. 1
shooting
execution
of
of
42
Kane’s
his
a
son,
U.S.C.
claims
Andrew
narcotics
§ 1983
are
based
Cornish,
search
by
warrant
and
on
the
the
police
at
Maryland
2005
fatal
during
Cornish’s
the
home.
Because the district court has not yet entered a final judgment
resolving all of Kane’s claims, however, his appeal is premature
under 28 U.S.C. § 1291.
Likewise, the cross-appeal brought by
appellees (“appellees” or “the officers”)--the four officers who
participated
properly
in
before
the
us
search
because
of
Cornish’s
their
apartment--is
contention
that
they
not
are
entitled to qualified immunity rests on an unresolved question
of
fact.
As
such,
we
dismiss
both
appeals
for
lack
of
jurisdiction.
1
Kane’s Maryland constitutional claims track his Fourth
Amendment claims. See Hines v. French, 852 A.2d 1047, 1069 (Md.
Ct. Spec. App. 2004) (“The standards for analyzing claims of
excessive force are the same under Articles 24 and 26 of the
Maryland Constitution as that under the Fourth Amendment of the
United States Constitution.”); Ford v. State, 967 A.2d 210, 231
(Md. Ct. Spec. App. 2009) (“Ordinarily, Article 26 of the
[Maryland] Declaration of Rights is to be read in pari materia
with the Fourth Amendment.”).
3
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I.
A.
Although
they
offer
differing
versions
of
the
story
at
specific points, the parties agree as to the general sequence of
events
that
led
which
Kane’s
to
claims
Cornish’s
are
fatal
based.
shooting--the
The
event
following
facts
upon
are
undisputed.
The City of Cambridge Police Department began investigating
Cornish based on an anonymous tip it received during the week of
March 28, 2005.
High
Street
activity.
in
The tip indicated that the occupants of 408
Cambridge,
Maryland,
were
engaging
in
drug
The residence located at 408 High Street has two
stories, which are divided into a downstairs apartment and an
upstairs apartment.
At the time police received the anonymous
tip, Nathan Latting and Karen Camper occupied the downstairs
apartment
(“Apartment
A”),
and
Andrew
Cornish
occupied
the
upstairs apartment (“Apartment B”). 2
In response to the tip, Officer Leaf Lowe twice pulled and
examined
trash
bins
from
the
sidewalk
Street.
On April 5, 2005, Lowe’s search yielded trace amounts
2
in
front
of
408
High
Andrew Cornish’s uncle Brad Cornish resided with him in
Apartment B.
Brad Cornish was not a target of the 2005
narcotics search, was not present at the time of the shooting,
and is not otherwise involved in this litigation.
4
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of marijuana, as well as letters addressed to both Latting and
Cornish.
A subsequent search of the trash from 408 High Street,
on April 19, 2005, produced similar results.
Based on this
information, Lowe sought warrants to search Apartments A and B
for
evidence
of
The
paraphernalia.
controlled
Dorchester
substances
County
and
District
associated
Court
issued
search warrants for both apartments on April 25, 2005.
On
May
6,
2005,
Lowe
and
eight
other
members
of
the
Cambridge Emergency Response Team and Narcotics Enforcement Team
set out to execute the warrants at 408 High Street.
Officers
Lowe, Brian Lewis, John Lewis, 3 and Jensen Shorter planned to
search Cornish’s upstairs apartment--Apartment B--and the other
five officers planned to search Apartment A.
At approximately
4:30 a.m., the officers entered the common door that led to both
apartments.
The four officers assigned to search Apartment B
climbed the stairs and lined up in the vestibule outside the
door to that apartment.
Brian Lewis used a sledgehammer to
breach the door, and the officers entered.
Shorter,
Cornish’s
acting
apartment.
as
the
The
point
man,
exterior
3
was
door
the
first
through
inside
which
the
John Lewis is Brian Lewis’s uncle. Because Brian Lewis is
the officer most directly involved in the shooting, references
in this opinion to “Officer Lewis” or “Lewis” indicate Brian
Lewis unless otherwise specified.
5
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officers entered opened into the apartment’s kitchen.
A door on
the left side of the kitchen led first to the living room and
then to the master bedroom; a bathroom and a second bedroom were
located off to the right side of the kitchen.
left
toward
the
living
room
and
master
Brian Lewis, acting as his cover man.
covered
the
right
side
of
the
Shorter proceeded
bedroom,
followed
by
Lowe and John Lewis
apartment,
moving
toward
the
second bedroom.
At some point during the officers’ search of Apartment B,
Cornish emerged from the master bedroom, wearing boxer shorts.
All four officers who participated in the search of Cornish’s
apartment reported seeing Cornish advancing on Brian Lewis with
some
sort
of
weapon--what
appeared
“pipe”--at the time of the shooting.
343-44, 423-24. 4
from
his
bedroom,
shots at Cornish.
to
be
a
“machete”
or
a
See J.A. 79-85, 238-50,
It is uncontested that, after Cornish emerged
he
encountered
Brian
Lewis,
who
fired
two
One shot hit Cornish in the cheek, and the
other hit Cornish’s forehead, fatally wounding him.
Cornish’s
body was found halfway between the living room and the kitchen,
4
Although Kane alleged in his complaint that Cornish had
“grabbed a sheathed knife for his protection” when the officers
entered his apartment, J.A. 18, he now posits that Cornish may
not have been armed at the time of the encounter, Appellant’s
Br. 40.
This factual dispute is not relevant to our
disposition.
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and a 15-inch knife, still in its sheath, was recovered from
underneath his right leg.
B.
On
May
5,
2008,
Cornish’s
father,
Andrew
Kane,
filed
a
complaint in his individual capacity and as representative of
Cornish’s estate in the U.S. District Court for the District of
Maryland.
Kane sought relief under 42 U.S.C. § 1983, alleging
that Officers Brian Lewis, John Lewis, Shorter, and Lowe had
violated the Fourth Amendment through use of excessive force
(namely,
Brian
Lewis’s
shooting
of
Cornish),
by
entering
Cornish’s apartment based on a warrant not supported by probable
cause, and by improperly executing the warrant by failing to
knock and announce their presence. 5
officers
violated
Declaration
of
equivalent
Rights.
He also claimed that the
provisions
Kane
alleged
of
that
the
Maryland
Cornish
suffered
injuries consisting of the violation of his Fourth Amendment
rights,
wrongful
suffering.
death,
and
physical
and
emotional
pain
and
He sought damages as compensation for these alleged
injuries.
5
Kane also named the Commissioners of Cambridge
of Police Kenneth Malik as defendants in his
asserting that they failed to properly train and
officers in violation of § 1983.
Kane voluntarily
these claims prior to this appeal.
7
and Chief
complaint,
supervise
dismissed
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Following
preliminary
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discovery,
the
officers
moved
for
summary judgment, claiming that their actions were protected by
qualified
immunity.
Discovery
elicited
the
undisputed
facts
previously laid out; it also exposed discrepancies between the
officers’ version of events and other evidence offered by Kane.
As
relevant
search
here,
claim
that
all
four
they
officers
knocked
and
who
participated
announced
their
in
the
presence
prior to breaching both the common door at 408 High Street and
the interior door to Cornish’s apartment. 6
Kane, on the other
hand,
knock
claims
that
the
officers
failed
to
and
announce
prior to entering either door, thus failing to alert Cornish to
the
fact
that
the
intruders
who
entered
hearing
evidence,
the
district
his
apartment
were
police officers.
After
court
granted
the
officers’ summary judgment motion in part and denied it in part.
Kane v. Lewis, Civil No. L-08-1157, 2010 WL 1257884, at *6-7 (D.
Md. March 26, 2010).
the
warrant
Specifically, the district court held that
authorizing
entry
into
Cornish’s
apartment
was
supported by probable cause and that Brian Lewis was entitled to
6
The parties also offer competing versions of what occurred
inside Apartment B in the moments leading up to Cornish’s death.
The district court found that Kane had not presented sufficient
evidence to create a genuine issue of fact regarding what
transpired in the apartment, and because of the procedural
issues explained below, we need not consider the differing
accounts at this juncture.
8
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qualified
immunity
“reasonable
probable
threat”
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officer”
cause
as
on
he
to
the
in
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excessive
Lewis’s
believe
approached
that
the
force
situation
Cornish
officers
authorizing the use of deadly force.
claim
“could
presented
with
a
because
have
a
had
deadly
knife,
Id. at *7.
a
thus
The court
denied summary judgment with regard to Kane’s knock-and-announce
claim, however, concluding that a genuine issue of material fact
existed
as
to
whether
the
officers
actually
knocked
and
announced their presence prior to entering Cornish’s apartment.
As the case progressed toward trial for a jury resolution
of this factual dispute, the officers filed a motion in limine
seeking to limit the type of damages a jury could award Kane
were
it
to
find
announce rule.
noted
that
damages:
Kane
nominal
that
the
officers
violated
the
knock-and-
In a July 9, 2010 order, the district court
could
damages
potentially
for
the
recover
alleged
three
Fourth
types
of
Amendment
violation itself 7; damages for the emotional distress Cornish
experienced from the time the officers entered his home until he
either discovered they were police officers or until his death;
7
We note that, prior to making a determination regarding
whether the jury would be entitled to award any actual damages,
the district court stated in a June 24, 2010 letter order that
“the case will go to trial, at least for nominal damages, to
determine whether the officers knocked and announced their
presence and purpose prior to entering Mr. Cornish’s apartment.”
J.A. 1437.
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and damages for Cornish’s death itself.
Kane
could
recover
nominal
damages
It then determined that
for
the
constitutional
violation itself and actual damages based on Cornish’s emotional
distress, if a jury found such awards appropriate.
It granted
the officers’ motion to limit damages in part, however, holding
that Kane could not recover actual damages based on Cornish’s
death because a reasonable jury would have to find that Cornish
knew he was advancing on police officers with a knife prior to
the
shooting,
and
the
decision
to
do
so
constituted
a
superseding cause of his death.
As a result of this order, the case was set to proceed to
trial for resolution of two questions.
First, the jury would
need to determine whether the officers knocked and announced
prior to entering Cornish’s apartment.
If it were to determine
that they did not, Kane would be entitled to nominal damages for
the violation of Cornish’s rights.
Assuming this outcome, the
jury would also have to resolve a second question: whether to
award
actual
damages
to
Kane
to
compensate
for
Cornish’s
emotional distress. 8
8
Following the district court’s ruling on the officers’
motion in limine regarding damages, Kane filed a motion for
reconsideration or, in the alternative, for an entry of judgment
under Rule 54(b) to allow him to appeal the district court’s
summary judgment and damages rulings to this court immediately.
The district court initially granted Kane’s motion for an entry
of judgment, but after further discussion with the parties, it
(Continued)
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On the morning of April 4, 2011, the date on which the
trial was scheduled to begin, Kane voluntarily dismissed with
prejudice
what
complaint.
he
had
designated
as
Counts
2
and
4
of
his
These counts were styled as follows:
Count 2--42 U.S.C. § 1983--Survival Action
Plaintiff Kane claims damages for Estate [sic] of his
son based upon . . . constitutional violations. Such
damages include the decedent’s pain and suffering,
fright suffered before the decedent was shot, pain and
suffering associated with his injuries, and the cost
of funeral and burial.
. . .
Count
Action
4--Maryland
Constitutional
Claim--Survival
Plaintiff Andrew Kane . . . claims damages as alleged
in Count 2.
J.A. 20.
At this point, the district court appears to have
halted the progression of the trial.
On April 14, 2011, Kane noted an appeal to this court,
challenging the partial grant of summary judgment and the order
limiting damages.
The officers filed a cross-appeal on April
18, 2011, challenging the partial denial of summary judgment
based on qualified immunity, the partial denial of their motion
declined to certify any issue in the case for interlocutory
appeal.
Instead, in an October 4, 2010 letter order, the
district court set a pretrial briefing schedule and determined
that trial would begin on April 4, 2011.
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in
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limine
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regarding
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damages,
and
various
other
pretrial
evidentiary rulings.
We
requested
supplemental
briefing
on
May
1,
2012,
to
address the question of whether we possess jurisdiction to hear
these appeals.
us.
Kane maintains that the case is properly before
In their supplemental brief, however, the officers concede
that “it does appear that jurisdiction may be lacking because a
‘final judgment’ under 28 U.S.C. § 1291 was never obtained.”
Appellees’ Sup. Br. 6.
oral
argument
that
Counsel for the officers confirmed at
they
have
come
to
believe
that
we
lack
jurisdiction.
II.
Although both parties initially asserted that this appeal
was
properly
before
our
court,
we
have
“an
independent
obligation to assess [our] subject-matter jurisdiction.”
Wye
Oak Tech., Inc. v. Republic of Iraq, 666 F.3d 205, 218 (4th Cir.
2011).
Upon review, we find jurisdiction lacking at this stage
of the litigation.
Specifically, we decline to consider the
various issues Kane raises on appeal--as well as the majority of
the
issues
the
officers
raise
on
cross-appeal--because
the
district court has not yet entered a final judgment under 28
U.S.C. § 1291.
Further, although the district court’s partial
denial of the officers’ claim to qualified immunity alone would
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be an appealable final decision if it turned on an issue of law,
we similarly lack jurisdiction over that holding because the
district court’s decision was based on a disputed question of
fact.
As such, we dismiss both the appeal and cross-appeal.
A.
Kane
summary
seeks
to
challenge
judgment
to
force
claim,
excessive
the
Officer
district
Brian
based
on
entitled to qualified immunity.
its
Lewis
court’s
grant
regarding
finding
that
of
Kane’s
Lewis
is
He also asks us to review the
district court’s limitation of damages regarding his knock-andannounce claim, contending that its decision not to present to
the
jury
the
erroneous. 9
option
of
awarding
wrongful
death
damages
was
Because it is indisputable that the threshold issue
of whether the officers knocked and announced prior to executing
the search warrant of Cornish’s apartment has not been resolved,
however, Kane’s appeal is premature.
Under
§ 1291,
“[t]he
courts
of
appeals
.
.
.
have
jurisdiction of appeals from all final decisions of the district
courts
of
the
United
States.”
9
28
U.S.C.
§ 1291
(emphasis
Kane raises a third issue on appeal, claiming that the
evidence Officer Lowe presented to establish probable cause to
support the warrant authorizing the search of Cornish’s
apartment was stale by the time the warrant was executed.
For
the reasons set forth herein, we lack jurisdiction over this
claim, as well.
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added).
A
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final
decision
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“generally
is
one
which
ends
the
litigation on the merits and leaves nothing for the court to do
but execute the judgment.”
Dilly v. S.S. Kresge, 606 F.2d 62,
63 (4th Cir. 1979) (quoting Catlin v. United States, 324 U.S.
229, 223 (1945)).
As such, “[t]he partial grant of summary
judgment to defendants [is] not a ‘final decision’ for purposes
of 28 U.S.C. § 1291” if “[t]here is obviously something else for
the district court to do but execute the judgment.”
Bellotte v.
Edwards, 629 F.3d 415, 426 (4th Cir. 2011) (quoting Dilly, 606
F.2d at 63).
Further, we have previously held that “a judgment
on liability that does not fix damages is not a final judgment
because the assessment of damages is part of the merits of the
claim that must be determined.”
Carolina Power and Light Co. v.
Dynegy Mktg. and Trade, 415 F.3d 354, 358 (4th Cir. 2005).
It
stands to reason that the reverse must also be true: a judgment
that partially determines damages but does not resolve the issue
of liability leaves unresolved a portion of the merits of a
claim.
Based on these principles, we find that here, “[t]here is
obviously
something
else
Bellotte, 629 F.3d at 426.
for
the
district
court
to
do.”
Although the district court granted
summary judgment on Kane’s excessive force and probable cause
claims,
it
declined
announce claim.
to
do
so
with
regard
to
his
knock-and-
It denied summary judgment because the question
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of whether the officers knocked and announced their presence
prior to entering Cornish’s apartment must be determined by a
trier
of
fact
before
the
issue
compensation can be addressed.
of
Kane’s
right
to
any
The question of liability has
thus not been resolved.
The knock-and-announce claim therefore
still
case
remains
in
the
pending
the
district
court’s
resolution of this factual dispute.
Kane contends in his supplemental brief that the district
court’s limitation of damages on the one issue remaining in the
case--the knock-and-announce question--“was a final adjudication
because it completely foreclosed Kane’s wrongful death claims.”
Appellant’s Sup. Br. 4.
Kane argues that the district court’s
limitation
death
of
wrongful
damages
and
Kane’s
subsequent
choice to voluntarily abandon his attempt to seek damages for
Cornish’s
emotional
distress
district court to do.
left
We disagree.
nothing
further
for
the
Rather, we find that Kane’s
voluntary abandonment of the other “claims” in his complaint
merely foreclosed the possibility of his recovering a certain
type of damages.
The question that will determine liability--
whether the officers knocked and announced prior to entering
Cornish’s apartment--is still live.
Further, if this question
is resolved in Kane’s favor, he will be able to recover nominal
damages
under
§ 1983
constitutional rights.
for
the
violation
of
Cornish’s
See Carey v. Piphus, 435 U.S. 247, 266
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(1978) (holding that under § 1983, violations of constitutional
rights
are
“actionable
actual injury”).
for
nominal
damages
without
proof
of
As such, a jury must resolve this factual
dispute before the district court may enter a final judgment
under § 1291.
Absent a final decision or another valid means of
establishing Kane’s right to appear before this court--which he
has not presented--we lack jurisdiction over his appeal.
B.
Although
jurisdiction
the
over
officers
their
have
conceded
cross-appeal,
briefly explain why we agree.
for
that
we
thoroughness,
lack
we
The officers assert on cross-
appeal that the district court erred by denying their motion for
summary judgment based on qualified immunity with respect to the
knock-and-announce claim. 10
We lack jurisdiction over this claim
as well.
“Notwithstanding the absence of a final judgment, we have
jurisdiction to review a district court’s denial of a claim of
qualified immunity . . . to the extent that it turns on an issue
of law. . . .”
Orem v. Rephann, 523 F.3d 442, 445 (4th Cir.
10
The officers also contend on cross-appeal that the
district court erred by denying their motion for a protective
order and by denying their motion to exclude evidence of
Cornish’s shooting at trial.
We lack jurisdiction over these
claims for the reason detailed above: the district court has not
issued a final judgment under § 1291.
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2008) (quotations omitted) (emphasis added).
“However, we lack
jurisdiction to review the district court’s order ‘insofar as
that order determines whether or not the pretrial record sets
forth a ‘genuine’ issue of fact for trial.’”
Gould v. Davis,
165 F.3d 265, 268 (4th Cir. 1998) (quoting Johnson v. Jones, 515
U.S. 304, 320 (1995)).
In other words, “a defendant, entitled
to
immunity
invoke
a
qualified
defense,
may
not
appeal
a
district court’s summary judgment order” if the district court
“acted
on
disputes
the
of
basis
that
material
fact
there
and
existed
that
in
the
the
case
resolution
genuine
of
such
disputes at trial was necessary before the legal issue of . . .
qualified immunity could be determined.”
Culosi v. Bullock, 596
F.3d 195, 201-02 (4th Cir. 2010) (quoting Johnson, 515 U.S. at
319-20).
Here, the district court denied the officers’ motion for
summary
judgment
based
on
qualified
immunity
with
regard
to
Kane’s knock-and-announce claim “because a dispute of material
fact exists as to whether the officers knocked and announced.” 11
J.A. 1348.
“Whether we agree or disagree with the district
court’s assessment of the record evidence on that issue . . . is
11
As discussed above, the district court found that
conflicting testimony elicited during the discovery process
created a genuine issue of material fact as to whether the
officers knocked and announced their presence before entering
Cornish’s apartment, as required under the Fourth Amendment.
See Bellotte, 629 F.3d at 419.
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of
no
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moment
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in
the
context
Culosi, 596 F.3d at 201.
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of
this
interlocutory
appeal.”
This is because “there is no legal
issue on appeal on which we could base jurisdiction.”
Shreve, 535 F.3d 225, 237 (4th Cir. 2008).
Iko v.
Illustrative of this
point is the fact that the officers present no legal questions
in
their
opening
brief,
only
arguments
about
the
disputed
factual questions regarding the knock-and-announce claim.
As
such,
of
we
must
also
dismiss
the
cross-appeal
for
lack
jurisdiction.
III.
For the foregoing reasons, this appeal and cross-appeal are
dismissed for lack of jurisdiction and remanded to the district
court for further proceedings in line with this opinion.
DISMISSED
18
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