Daniel THOMAS, Individually and as Representative of the Estate of Daniel Christopher Thomas; Gloria Thomas, Individually and as Representative of the Estate of Daniel Christopher Thomas; Mary Kelley, as Next Friend of Kristen Danyaile Thomas, Plaintiffs-Appellees v. Robert MARTINEZ, Individually and in His Official Capacity; Larry Norman, Individually and in His Official Capacity, Defendants-Appellants, 490 F. App'x 628

PER CURIAM: San Antonio police officers Robert Martinez and Larry Norman (“Officers”) appeal the district court’s denial of their motion for

summary judgment on the ground of qualified immunity in a shooting incident that killed an unarmed, drunken suspect. The district court denied qualified immunity at this stage because the testimony of an alleged eyewitness, Mr. Cardenas, directly contradicted the officers’ testimony concerning the demeanor of the suspect and the officers’ words and actions.

The parties are well aware that this court may not make credibility determinations in the course of deciding a qualified immunity appeal; that we must accept all facts in the light most favorable to the non-movant; and that we have appellate jurisdiction only if a qualified immunity defense turns on questions of law. Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir .2004). The district court found a genuine issue of material fact in the contrasting statements of the officers and Cardenas. This is undoubtedly correct.

The officers’ only response is to assert that Cardenas’s testimony was so incredible as to be unworthy of belief. The authority they rely on, Scott v. Harris, 550 U.S. 372, 380-81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), is distinguishable, because the undisputable evidence there was a videotape record of the car chase, whereas here, the evidence consists of conflicting testimony from the participants in the event and the eyewitness. Because this interlocutory appeal does not turn on a question of law, the appeal must be DISMISSED. Pursuant to 5th Cir.

R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.