Whether an appellate court may review disputed material facts and substitute its own findings when deciding qualified immunity

QUESTIONS PRESENTED FOR REVIEW In the case at bar, the Eleventh Circuit accepted jurisdiction of an interlocutory ruling based upon the defense of qualified immunity. The district court had denied summary judgment as to all counts, including the defense of qualified immunity. The denial was based upon the Petitioner’s extensive record evidence from which the district court had found: “{Pllaintiff disputes almost every aspect of Wengert’s story. She contends, inter alia, that Thompson had nothing to do with the robbery, did not fit the robbery suspects’ descriptions, did not flee arrest, was not armed, and did not shoot at Wengert. Under those facts, there would have been no probable cause for Thompson’s arrest, no legal reason for Wengert to shoot him, and therefore no qualified immunity.” (App. B, 32a). Thereafter, the Eleventh Circuit reversed the district court’s denial of summary judgment based upon qualified immunity, as well as all other federal and state claims which had been brought by the Petitioner, “[b]ecause the district court’s findings were not adequate. We undertake our own review of the record.” (App. A, p. 3a). Three questions are presented: 1. Under what circumstances may an appellate court review the findings of the district court with respect to the validity of the disputed material facts where there exists no legal question concerning a clearly established federal right that needs to be decided by the court? u 2. Can an appellate court, having disagreed with a district court’s assessment of the evidence, thereafter reverse the findings of the district court, and substitute its findings of fact based upon the moving parties version of the evidence? 3. Canan appellate court substitute its own findings of fact based upon the moving parties’ version of the evidence then accept pendent jurisdiction and reverse a district court’s non-final order on federal and state claims not the subject of the appeal by finding that they were “inextricably intertwined,” to the defense of qualified immunity?