Given issues of material fact about whether plaintiff was surrendering to police or lunging for gun and whether plaintiff was an immediate threat to safety of officers or others, court has no jursdiction to decide either aspect of the issue of qualified immunity on interlocutory appeal. The fact that the plaintiff wasn't combative or armed complicates the application of relevant precedent that asks if the right was clearly established
An appeal of the sufficiency of the evidence for the denial of quualified immunity can't be decided on interlocutory review.
DISSENT (CJ)
Some of the benefit of qualified immunity is lost if the case is allowed to go to trial; the question is conceptually separate from the underlying claim. The evidence establishes the historical facts of this situation, and the appellate courts can resolve the issues of law arising from those facts.