When defendants flout the jurisdictional limits on the scope of interlocutory qualified-immunity appeals, everyone loses.
February 5, 2020
In Monday’s Orn v. City of Tacoma, the Ninth Circuit repeatedly rejected a defendant’s attempt to argue the facts in an interlocutory qualified-immunity appeal. Although defendants have a right to immediately appeal the denial of qualified immunity, that right is limited when immunity is denied at summary judgment. The court of appeals can review whether the defendant violated clearly established federal law. But in doing so, the court of appeals must take as true the same facts that the district court determined a reasonable jury could find. The appellate court lacks jurisdiction to look behind the facts that the district court assumed were true to see if the summary-judgment record supported them. Granted, a few exceptions to these general jurisdictional limits exist. But these general rules were laid down 25 years ago in Johnson v. Jones and have remained the law ever since.
Defendants nevertheless flout these jurisdictional rules with some regularity. When they do, they needlessly delay district court proceedings, create unnecessary work for the courts and parties, and waste everyone’s time. Orn is another unfortunate example. The practice needs to stop. In this post, I use Orn to illustrate this problematic practice. And (if you’ll excuse the self promotion) for a more in-depth discussion of this issue—including how courts or rulemakers can clarify and improve this area of the law—you can read the new draft of my article Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals, which I recently posted to SSRN.
District court proceedings in Orn
Orn involved a low-speed car chase that ended in a police officer shooting and partially paralyzing the car’s driver. When police tried to pull over the plaintiff, he refused to stop. He instead drove home to his apartment complex, traveling at 25–35 miles per hour and stopping at traffic lights and stop signs. Police followed him. And upon reaching the apartment complex, the police attempted to stop the plaintiff’s car in the parking lot. As the plaintiff tried to maneuver around one of the police cars in the parking lot, one officer—the defendant in Orn—shot him several times.
The parties disputed the exact circumstances of the shooting. The plaintiff contended that he was moving slowly at the time he was shot and never posed any threat to anyone. According to the plaintiff, he was maneuvering around police vehicles at a speed of about five miles per hour. As his vehicle passed one of the police SUVs, the defendant approached the passenger side window and began firing. One of the rounds struck the plaintiff in the spine, causing him to go numb and stomp on the accelerator. As the car then then sped off, the defendant continued shooting at the back of it.
The defendant contended that he was in the path of the car and thus at risk of being run over. The defendant argued that the plaintiff had turned his car towards the defendant and began accelerating hard. Fearing that he would be pinned between the plaintiff’s car and another car, the defendant fired. After the plaintiff passed the defendant, the defendant chased after it and continued shooting because he feared for the safety of another officer.
At summary judgment, the district court took the plaintiff’s version of the facts as true and denied qualified immunity. Were the facts as the plaintiff contended, neither the defendant nor anyone else was in any danger when the defendant fired at the plaintiff. And that rendered the defendant’s behavior clearly unconstitutional.
The improper appeal
The defendant appealed from the denial of qualified immunity. And in doing so, the defendant failed to abide by the jurisdictional limits on interlocutory qualified-immunity appeals.
Under Mitchell v. Forsyth, defendants have a right to appeal from the denial of qualified immunity. But when that denial comes at summary judgment, the court of appeals has jurisdiction to review only certain parts of the district court’s decision. The court of appeals can address whether, under the facts that the district took as true when denying qualified immunity, the defendant violated clearly established federal law. But under the Supreme Court’s decision in Johnson v. Jones, the court of appeals generally lacks jurisdiction to review whether the summary-judgment record supports those facts that the district court took as true. In other words, the court of appeals can address only the materiality of any fact disputes; it cannot review whether those disputes are genuine.
The defendant in Orn nevertheless premised his appellate arguments on his own version of the facts. These arguments, the Ninth Circuit said, violated the general rule that defendants must take the district court’s version of the facts as true for purposes of the appeal:
Notwithstanding this clear rule, [the defendant] asks us at several key junctures to credit his version of the facts and to assume that a jury would resolve factual disputes in his favor. This we are not permitted to do.
Throughout his arguments, the defendant contended that he was in the path of the plaintiff’s car and that it accelerated towards him. But the district court had determined that a reasonable jury could find that the plaintiff’s version of the shooting was true—that the plaintiff’s car was moving slowly, not towards the defendant, and accelerated only after the plaintiff was already shot. Those were the facts for the purposes of determining, in the interlocutory appeal, whether the officer violated clearly established law.
The court also rejected the defendant’s attempt to invoke the blatant-contradiction exception to the normal rules on interlocutory qualified-immunity appeals. That rule, which stems from the Supreme Court’s decision in Scott v. Harris, permits appellate courts to review the genuineness of a fact dispute when something in the summary-judgment record “blatantly contradicts” the district court’s version of the facts. The Ninth Circuit determined that nothing in the record conclusively showed that the district court’s was wrong. So the court of appeals limited itself to the district court’s version of the facts.
Under those facts, the district court properly denied qualified immunity. Indeed, the defendant apparently did not argue otherwise; he did not dispute that, under the version of facts assumed by the district court, a clear constitutional violation occurred and qualified immunity was improper:
[The defendant] does not dispute that an officer who fires into the side or rear of a vehicle moving away from him lacks an objectively reasonable basis for claiming that he did so out of fear for his own safety. He instead urges us to analyze the lawfulness of his actions under his version of events, in which he stood in the path of [the plaintiff]’s vehicle as it accelerated toward him, causing him to fear for his life.
The defendant’s briefing—in urging a different version of the facts—“highlight[ed] the factual disputes that a jury must ultimately resolve.” The Ninth Circuit accordingly affirmed the denial of qualified immunity.
A larger problem
Orn is an example of a larger problem: defendants taking improper qualified-immunity appeals. With some regularity, defendants flout the jurisdictional limits on these appeals. Whether intentionally violating those limits or not understanding them, these defendants argue their own version of the facts on appeal. To be fair, defendants aren’t the only ones who misunderstand the rules governing qualified-immunity appeals; plaintiffs and even courts sometimes do, too.
The confusion over the jurisdictional rules governing qualified-immunity appeals—particularly the opportunities the confusion creates for defendants to take unfounded appeals—is a problem. When defendants take improper appeals, courts generally sort out the jurisdictional issues. Often after full briefing and perhaps even oral argument, they dismiss these appeals for a lack of appellate jurisdiction. But at that point the damage has been done. The appeal added unnecessary work, expense, delay, and uncertainty to the case. District court proceedings have stalled. Parties have researched and briefed both jurisdiction and the merits of the qualified-immunity appeal. And months have passed between the notice of appeal and the eventual dismissal. All of this makes civil rights litigation even more burdensome for plaintiffs.
A possible solution
Qualified-immunity appeals are in need of reform. And I have some ideas for how to do so. I’ve recently posted a new article draft that comprehensively addresses the scope of appellate jurisdiction when qualified immunity is denied at summary judgment. In the article, I lay out the general jurisdictional rules for qualified-immunity appeals that defendants seems to have so much trouble with. I explain the relatively recent addition of the blatant-contradiction exception to those rules. I argue—based on my analysis of 12 years of decisions invoking that exception—that the blatant-contradiction exception is neither pragmatic nor needed. And I offer reforms, via Supreme Court decision or rulemaking, that would clarify and improve the law governing qualified-immunity appeals. In particular, I urge the Supreme Court or rulemakers to adopt a variation on the Third Circuit’s Forbes rule: require that district courts state the facts they assume in denying qualified immunity at summary judgment, and limit the courts of appeals to deciding whether those facts specified by the district court amount to a violation of clearly established law.
These reforms could dispel the confusion that parties and courts run into in qualified-immunity appeals. And dispelling that confusion might stop defendants from using improper appeals to add unnecessary costs and delays to civil rights litigation through improper appeals. Or it might provide grounds for starting to sanction defendants when they flout the jurisdictional limits in those appeals.
Orn v. City of Tacoma, 2020 WL 524787 (9th Cir. Feb. 3, 2020), available at the Ninth Circuit and Westlaw.
Bryan Lammon, Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals (February 2020 draft), available at SSRN.