In Rios v. City of Azusa, published August 20, 2026, the 9th Circuit Court of Appeals dismissed an appeal for lack of jurisdiction. A man acting erratically was subjected to a use of force by police that left him in a vegitative state. He and his children sued individual police officers and their agencies asserting excessive-force and other constitutional claims under 42 U.S.C. section 1983. During discovery, the plaintiffs’ counsel became aware that a person who resided in the apartment complex where the incident took place had filed a pro se complaint against one of the defendant agencies, alleging excessive force in an unrelated episode. Counsel interviewed the person, and realized that they had already spoken with him shortly after the incident giving rise to the pending suit. The person had witnessed the use of force, but had refused to identify himself or provide a statement. This time, he was willing to do so. A few days before close of discovery, the plaintiffs supplemented their initial disclosures under FRCP 26(a) to identify the person as likely to have discoverable information. Soon thereafter, the plaintiffs provided defense counsel with a declaration by the person, describing the incident. The defendants moved for summary judgment, arguing that the officer defendants were entitled to qualfiied immunity on the excessive-force claim. The plaintiffs opposed summary judgment. They included the declaration from the person in the supplemental discovery disclosure. The defendants moved to strike the declaration under FRCP 37(c)(1), which bars using a witness not identified under FRCP 26 to supply evidence unless the failure was substantially justified or harmless. The district court denied the motion to strike, ruling that the plaintiffs timely disclosed the person as a potential witness soon after learning he saw the incident. The district court also denied the summary judgment motion, ruling that, viewing the facts in the light most favorable to the plaintiffs, a jury could find use of excessive force. The defendants appealed on the ground that the district court abused its discretion in denying the motion to strike the declaration. The defendants argued that the declaration was the only evidence the district court relied on to find a genuine dispute of facts.
The 9th Circuit ruled that the argument was not properly before them. In an interlocutory appeal of a summary judgment motion based on qualified immunity, the appellate court may review whether the facts establish a violation of a clearly established constitutional right, thus defeating qualified immunity. But it may not review a portion of a district court decision that determines only a question of evidence sufficiency. The defendants did not argue that if the declaration was included, they were nevertheless entitled to qualified immunity on the excessive-force claim. The argument was instead about what facts were properly before the district court. That is a question about evidence sufficiency. The appellate court therefore lacked jurisdiction to review the district court’s denial of qualified immunity.
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