308
Opinion of the Court
admitted they were present at the arrest and in or near the
booking room when Jones was there.
The District Court denied the officers' summary judgment motion. The court wrote that Seventh Circuit precedent indicated potential liability if the three officers "stood by and allowed others to beat the plaintiff." App. to Pet. for Cert. 7a. And, the court held that there was "sufficient circumstantial evidence supporting [Jones'] theory of the case." Id., at 8a.
The three officers immediately appealed the District Court's denial of their summary judgment motion. They argued, in relevant part, that the denial was wrong because the record contained "not a scintilla of evidence . . . that one or more" of them had "ever struck, punched or kicked the plaintiff, or ever observed anyone doing so." Brief for Appellants in No. 93-3777 (CA7), p. 10. But, the Seventh Circuit refused to consider this argument—namely, that the District Court had improperly rejected their contention that the record lacked sufficient evidence even to raise a "genuine" (i. e., triable) issue of fact. The Seventh Circuit held that it "lack[ed] appellate jurisdiction over th[is] contention," i. e., of the "evidence insufficiency" contention that "we didn't do it." 26 F. 3d 727, 728 (1994). It consequently dismissed their appeal.
Courts of Appeals hold different views about the immediate appealability of such pretrial "evidence insufficiency" claims made by public official defendants who assert qualified immunity defenses. Compare, e. g., Kaminsky v. Rosenblum, 929 F. 2d 922, 926 (CA2 1991) (saying that no appellate jurisdiction exists); Giuffre v. Bissell, 31 F. 3d 1241, 1247 (CA3 1994) (same); Boulos v. Wilson, 834 F. 2d 504, 509 (CA5 1987) (same); Elliott v. Thomas, 937 F. 2d 338, 341-342 (CA7 1991) (same), cert. denied, 502 U. S. 1074, 1121 (1992); Crawford-El v. Britton, 951 F. 2d 1314, 1317 (CADC 1991) (same), with Unwin v. Campbell, 863 F. 2d 124, 128 (CA1
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