A Video-Evidence Exception for Qualified-Immunity Appeals

In Argueta v. Jaradi, the Fifth Circuit created a new exception to the bar on reviewing the genuineness of fact disputes in qualified-immunity appeals. In most of those appeals, the court must take as given the district court’s determination of what facts a reasonable jury could find. But according to the Fifth Circuit, an appellate court doesn’t have to do that when video evidence exists.

The Video-Evidence Exception

Again, the general rule in qualified-immunity appeals is that appellate jurisdiction exists only to review the materiality of factual disputes, not their genuineness. But most courts of appeals have held that the Supreme Court’s decision in Scott v. Harris created an exception to this rule when something in the record blatantly contradicts the district court’s assessment of the record. I’ve written quite a bit about this exception and how unpragmatic and unnecessary it is.

The Fifth Circuit has taken Scott a step further. The Argueta court said that it can review the genuineness of fact disputes in qualified-immunity appeals when video evidence exists. The Fifth Circuit recognized that one could read Scott (as most courts have) to permit “review the genuineness of fact disputes only to determine whether video evidence ‘blatantly contradicts’ one party’s version of events.” (Emphasis in original.) But the Fifth Circuit thinks that Scott “recogniz[ed] a general exception to the prohibition on interlocutory review of genuineness in cases involving video evidence.”

A Terrible Reading of Scott

This might be the worst reading of Scott that I’ve come across. This video-evidence exception has many of the same problems as the blatant-contradiction exception. (See my article on the blatant-contradiction exception for more on this point.) But what might be even worse is the just-quoted language from Argueta. The Fifth Circuit said that Scott “recogniz[ed] a general exception to the prohibition on interlocutory review of genuineness in cases involving video evidence.” Nonsense. Scott didn’t say—much less recognize—anything about appellate jurisdiction. The majority didn’t mention it or Johnson v. Jones, the case that established the bar on reviewing the genuineness of fact disputes. The blatant-contradiction exception has come from appellate courts’ attempts to reconcile Scott and Johnson.

Nor do the cases the Fifth Circuit cited clearly establish this exception. One case Argueta relied on was Curran v. Aleshire. But that was a curious citation. At one point, Curran noted that a defendant “invite[d] the court to view the video and still pictures and draw its own conclusions about whether [the plaintiff] exhibited signs of resistance.” The Curran court could do so, it said, under Scott, “which created an unexplained exception to the materiality/genuineness rule.” But the Fifth Circuit then added that “Scott instructs that a plaintiff’s version of the facts should not be accepted for purposes of qualified immunity when it is ‘blatantly contradicted’ and ‘utterly discredited’ by video recordings.” Curran thus adopted the blatant-contradiction exception. It did not create a broader video-evidence exception.

The Fifth Circuit also cited to Poole v. City of Shreveport. (I wrote about Poole when it was decided; see this roundup.) And at one point, Poole said that Scott created an exception to the bar on reviewing the existence of fact disputes: “On interlocutory review, a court may consider video recordings in determining whether a factual dispute exists.” But the only citations for this proposition were Scott and the just-discussed Curran. Further, the court in Poole went on to agree with the district court that genuine fact disputes existed. So any statement about a video-evidence exception was unnecessary to the court’s decision—the same outcome would have been reached by accepting the district court’s version of events.

Avoiding Argueta in the Future

Similarly, a future court might avoid reading Argueta to establish a video-evidence exception. Just like in Poole, the Fifth Circuit went on to agree that genuine fact disputes existed. (A majority of the panel then held that even if these fact disputes were resolved in the plaintiff’s favor, the defendant was entitled to qualified immunity. Judge Haynes dissented on this point.) So any recognition or invocation of the video-evidence exception was unnecessary to the outcome.

Argueta v. Jaradi, 2023 WL 7974744 (5th Cir. Nov. 17, 2023), available at the Fifth Circuit and Westlaw