When the core qualified immunity issue is raised on appeal, the appellate court has two options regarding how to deal with the factual issue. “When faced with an argument that the district court mistakenly identified clearly established law, the court of appeals can simply take, as given, the facts that the district court assumed when it denied summary judgment for that (purely legal) reason.”
Id. at ––––, 115 S.Ct. at 2159. Or, the court of appeals can conduct its own review of the record in the light most favorable to the nonmoving party. First, the appellate court may have to do so because the trial court failed to state the facts it assumed.
Id. Second, the appellate court can do so because such a determination is part of the core qualified immunity analysis, as discussed above.
See Anderson, 483 U.S. at 641, 107 S.Ct. at 3039–40. Third, even if such a determination were not part of the core qualified immunity analysis, it would be “inextricably intertwined” with that analysis and within the appellate court's pendent jurisdiction.
Swint v. Chambers County Com'n, 514 U.S. 35, ––––, 115 S.Ct. 1203, 1209, 131 L.Ed.2d 60 (1995).
See also Johnson, 515 U.S. at ––––, 115 S.Ct. at 2159. Of course, if there is any evidence in the record to support the District Court's ruling that there was a genuine issue of material fact as to whether the official actually engaged in the conduct that violated clearly established law, the District Court's factual ruling will not be disturbed.
See Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.