DONALD C. ASHMANSKAS, United States Magistrate Judge.
On June 7, 2001, this court denied Defendants' motion for summary judgment on the issue of qualified immunity finding that the conflicts in the evidence were "sufficient to create a genuine issue of material fact regarding what actually occurred on the night of the incident and whether Balzer reasonably believed that Gilbaugh posed a threat of death or serious bodily injury to either himself or Rabey." Defendants filed a notice of appeal on this issue with the Ninth Circuit. In the Docketing Statement prepared by Defendants, Defendants describe the issue to be raised on appeal as follows:
Because it is uncontroverted that Peter Gilbaugh was drunk and violent and that he attempted to seize Officer Balzer's gun, are Officer Balzer and Officer Rabey entitled to qualified immunity on Gilbaugh's claim that the officers violated his Fourth Amendment rights when Officer Balzer shot him?
Presently before the court is Plaintiff's Motion for Certification that Defendants' Appeal is Frivolous.
The court agrees that Plaintiff has not presented any evidence that Peter Gilbaugh did not grab for Balzer's gun just before he was shot. However, the conflicts in the evidence noted in the opinion call the Officer's credibility into question. Accordingly, an issue exists with regard to whether Officer Balzer's statement that Gilbaugh grabbed for his gun, which is the sole piece of evidence on that issue, is credible. The Ninth Circuit has clearly held that any genuine issue of material fact concerning the underlying historical facts bars a finding of qualified immunity at the summary judgment stage. Sinaloa Lake Owners Ass'n v. City of Simi Valley, 70 F.3d 1095, 1099 (9th Cir. 1995).
The court finds that Defendants' appeal of this ruling is not well founded. Plaintiff's motion (75) to certify the appeal as frivolous is GRANTED.