Judge Fletcher again offered his unique take on Johnson v. Jones and asked the Supreme Court to overrule it. But I don’t read the case like he does.
January 19, 2021
Jurisdiction over appeals from the denial of qualified immunity can be complex. In Mitchell v. Forsyth, the Supreme Court held that defendants can immediately appeal these denials via the collateral-order doctrine. Ten years later, in Johnson v. Jones, the Supreme Court limited that right to appeal when the district court denies immunity at the summary-judgment stage. The interplay of these two cases is not entirely intuitive. And some of the Supreme Court’s recent decisions—particularly Scott v. Harris—have raised questions about Johnson’s meaning and continued vitality. So confusion over Johnson occasionally crops up in the courts of appeals. And with confusion come efforts to make sense of the law in this area.
Judge William A. Fletcher of the Ninth Circuit has twice tried to reconcile the Supreme Court’s caselaw in this area: about a year ago, in a concurring opinion in Tuuamalemalo v. Greene; and again last week, in a dissenting opinion in Estate of Anderson v. Marsh. He reads Johnson to permit appeals only when the defendant does not dispute the the facts in the district court. And that rule, he explains, is an odd one—most denials of qualified immunity involve disputes over the facts, so Johnson would seem to bar most appeals from these denials. Judge Fletcher has accordingly called for the Supreme Court to revisit—and overrule—Johnson.
As I said last January when talking about Judge Fletcher’s opinion in Tuuamalemalo, I disagree with his reading of Johnson. He reads Johnson to make appellate jurisdiction turn on what the defendant argues in the district court. But Johnson makes appellate jurisdiction turn on what the defendant argues in the appeal. With rare exceptions, Johnson prohibits challenges to the factual basis of a district court’s immunity denial. So on appeal, the defendant cannot dispute the factual basis for the district court’s denial of qualified immunity. But defendants are free to do so in the district court without losing their opportunity to appeal.
Johnson’s prohibition on fact-based qualified-immunity appeals is a sound rule. It exists to streamline these appeals and focus appellate courts on the core qualified-immunity issues. So Johnson should not be overruled. If anything, its rule should should be reiterated and strengthened.
The Improper Appeal in Anderson
Anderson was a relatively unexceptional fact-based qualified-immunity appeal involving an excessive-force claim. After a high-speed chase ended with the driver crashing into fence, the pursuing officer approached the vehicle. According to the officer, the driver then reached down towards the passenger seat, causing the officer to fear that the driver was reaching for a weapon. But according to the district court, a reasonable jury could find that the driver was sitting still, unarmed, and with his hands on the steering wheel and gear shift at the time of the shooting. So when the officer sought qualified immunity, the district court denied that request. If a reasonable jury believed that the driver was sitting still—and not reaching for the passenger seat—when the officer shot, then the officer violated clearly established law.
The officer then appealed. But in that appeal, the officer did not challenge the law governing the plaintiff’s claim. Indeed, the officer conceded that were the facts as the plaintiff alleged, the officer violated clearly established law. The officer instead challenged the factual basis for the district court’s immunity denial: he argued that the district court erred in concluding that a reasonable jury could find that the driver was sitting still when the officer shot him.
The Ninth Circuit held that it lacked jurisdiction over the appeal. All of the officer’s arguments on appeal challenged the district court’s determination of what a reasonable jury could find. The officer made no argument that he did not violate clearly established law under the facts that the district court took as true for purposes of summary judgment. Because all of the officer’s arguments went to the sufficiency of the evidence, the court lacked jurisdiction over the appeal.
Judge Fletcher on Qualified-Immunity Appeals
Judge Fletcher dissented to criticize the state of the law governing appeals from the denial of qualified immunity at summary judgment. He echoed and expanded on several criticisms he made about a year ago when concurring in Tuuamalemalo v. Greene. And he ultimately called for the Supreme Court to overrule Johnson v. Jones.
Judge Fletcher’s Reading of Johnson
Judge Fletcher ultimately read Johnson to make appellate jurisdiction turn on what the defendant argues in the district court. But before getting to Johnson, Judge Fletcher began with the Supreme Court’s decision in Mitchell v. Forsyth. He noted that Mitchell did not change the normal summary-judgment standard; even when evaluating a motion seeking qualified immunity, the court must look at the evidence in the light most favorable to the non-moving party (i.e., the plaintiff). So Mitchell should have allowed interlocutory qualified-immunity appeals regardless of whose version of the facts the district court assumed to be true when denying qualified immunity:
The most obvious way to implement Mitchell would have been to allow an interlocutory appeal to determine the correctness of the district court’s denial of defendant’s motion, whether the court (1) used defendant’s version of disputed evidence, (2) used plaintiff’s version of disputed evidence, viewing the evidence in the light most favorable to the plaintiff, or (3) used undisputed evidence.
But Judge Fletcher understood Johnson to mean that appellate jurisdiction exists in only the first and third scenarios. That is, jurisdiction exists “only in cases where the district court relied on evidence the defendant did not dispute.”
Judge Fletcher gleaned this rule from two passages in Johnson. First was the Supreme Court’s description of the order at issue in Johnson:
The order in question resolved a fact-related dispute about the pretrial record, namely, whether or not the evidence in the pretrial record was sufficient to show a genuine issue of fact for trial. We hold that the defendants cannot immediately appeal this kind of fact-related district court determination.
That dispute, Judge Fletcher noted, “was whether the circumstantial evidence, which the [defendants] disputed, was sufficient to deny summary judgment to the defendant[s].” Second was the Court’s description of the issue and holding in Johnson:
We . . . consider the appealability of a portion of a district court’s summary judgment order that, though entered in a “qualified immunity” case, determines only a question of “evidence sufficiency,” i.e., which facts a party may, or may not, be able to prove at trial. This kind of order, we conclude, is not appealable. That is, the District Court’s determination that the summary judgment record in this case raised a genuine issue of fact concerning petitioners’ involvement in the alleged beating of respondent was not a “final decision” within the meaning of the relevant statute.
The fact issue, Judge Fletcher reiterated, was “was whether the defendant officers were ‘involve[d] in the alleged beating’ of the plaintiff.”
Judge Fletcher read these passages to mean that appellate jurisdiction in a qualified-immunity appeal turns on what the defendant argues in the district court and the basis for a district court’s denial of immunity. A district court might deny immunity based on evidence that the defendant does not dispute (i.e., the defendant’s evidence, or a case in which the parties don’t dispute what happened). Or a district court might hold that under the plaintiff’s version of the facts, the defendant is not entitled to qualified immunity, but that version of the facts is disputed. Judge Fletcher read Johnson to hold that appellate jurisdiction exists only in the first scenario, not the second:
[A] court of appeals has jurisdiction only when a district court denies a defendant’s motion for summary judgment based on evidence that the defendant does not dispute. A court of appeals does not have jurisdiction when a district court denies a defendant’s motion for summary judgment based on evidence it assumes to be true but that a defendant disputes.
This rule, Judge Fletcher thought, was an odd one. After all, most denials of qualified immunity involve disputed questions of fact. But that is precisely the scenario in which Judge Fletcher’s reading of Johnson deprives the courts of appellate jurisdiction. Johnson thereby “frustrates the purpose of qualified immunity”—which is to protect defendants from the burdens of litigation—“in cases where the district court, relying on plaintiff’s view of the evidence, mistakenly holds as a matter of law that an officer is not entitled to qualified immunity.”
The Confusion Over Johnson
The seeming oddity of Johnson’s rule, Judge Fletcher, argued, “has created persistent confusion as courts of appeals, including our own, have struggled to reconcile its apparent holding with the purpose of qualified immunity.” He explained this same tension in his Tuuamalemalo concurrence:
On the one hand, the courts of appeals understand the purpose of Mitchell. They understand the importance of interlocutory appellate jurisdiction in cases where, in the view of the district court, plaintiff’s version of the facts, construed in the light most favorable to plaintiff, would defeat qualified immunity. On the other hand, they are confronted with the language of Johnson that appears to preclude the exercise of appellate jurisdiction in exactly those cases.
Judge Fletcher saw this tension play out with courts—including the Supreme Court—doing exactly what he thought Johnson said not to do: hearing an appeal from the denial of immunity while crediting the plaintiff’s version of disputed facts. Judge Fletcher thought the Supreme Court did as much in Saucier v. Katz, Brosseau v. Haugen, and Scott v. Harris. And in in Plumhoff v. Rickard, the Court distinguished Johnson rather explain the tension between Johnson’s language and the common practice in the courts.
Indeed, Judge Fletcher read Plumhoff to create an even less intuitive rule:
After Plumhoff, in a case where the district court has denied a motion for summary judgment based on qualified immunity, the rule now appears to be the following: When a district court relies on plaintiff’s version of disputed evidence in denying the motion for summary judgment, a court of appeals may generally exercise interlocutory appellate jurisdiction. Only when officers provide disputed evidence showing that they were not present, and were in no way involved in the challenged conduct, is an appellate court without jurisdiction to hear the officers’ interlocutory appeal.
But defendants who argue no involvement, Judge Fletcher thought, are most deserving of the protections of immediate appeals.
A Call to Overrule Johnson
Judge Fletcher ended his separate opinion once again calling on the Supreme Court to revisit—and overrule—Johnson. He asked the Court to say clearly “whether and in what circumstances an interlocutory appeal may be taken when the district court, viewing disputed evidence in the light most favorable to plaintiff, has denied a motion for summary judgment based on qualified immunity.”
Another Reading of Johnson
I read Johnson quite a bit differently than Judge Fletcher does.
Johnson’s Bar on Reviewing the Genuineness of Fact Disputes
Johnson holds that when a district court denies immunity at the summary-judgment stage, only part of the district court’s decision can be immediately reviewed. Denying immunity at summary judgment requires determining both the genuineness and materiality of any fact disputes. Like any other summary-judgment decision, the genuineness determination requires assessing the record and assuming (for the purposes of the motion) the most plaintiff-favorable version of the facts that a reasonable factfinder could find. If the parties dispute this version of the facts and have evidence to back up that dispute, a genuine fact issue exists.
The district court must then determine whether any fact issues are material. That requires asking the two core qualified-immunity questions. Assuming the most plaintiff-favorable version of the facts that a reasonable factfinder could find, do those facts make out a violation of federal law? And if they do, was the law clearly established at the time of the violation? If the district court answers both of these questions affirmatively—that is, based on the most plaintiff-favorable version of the facts, a clearly established violation of federal law occurred—then the defendant would be liable under those facts. The genuine dispute over the facts is material, and the district court should deny immunity.
Johnson held that jurisdiction in a qualified-immunity appeal exists to review only the latter inquiries: do the facts taken as true by the district court show a violation of federal law, and was that violation clearly established? The court of appeals lacks jurisdiction to review what facts a reasonable factfinder could find. So defendants cannot challenge—and courts of appeals lack jurisdiction to review—the factual basis for the district court’s denial of qualified immunity. The court of appeals must instead take the facts as the district court saw them.
To be sure, some exceptions to Johnson exist. Johnson said that if a district court does not explain the facts it took to be true in denying immunity, the court of appeals can review the record itself to determine what the district court likely assumed to be true. And most courts of appeals hold that Scott v. Harris created a blatant-contradiction exception to Johnson: courts of appeals can review the genuineness of fact disputes when something in the record blatantly contradicts the version of events that the district court took as true.
But absent one of these exceptions to Johnson, the courts of appeals must take as given the factual basis for the district court’s immunity denial and cannot review the district court’s determination of what facts a reasonable factfinder could find. Johnson ended the opinion by saying as much: “a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Indeed, the opinion repeatedly framed the issue as whether appellate courts can review the genuineness of fact disputes in qualified-immunity appeals.
Jurisdiction & the Defendant’s Arguments
So—and as the majority in Anderson noted—jurisdiction over an appeal from the denial of qualified immunity at summary judgment “ultimately turns on the nature of the defendant’s argument on appeal.” Insofar as the factual basis for qualified immunity is concerned, a defendant has essentially two kinds of arguments.
- First, the defendant can accept the factual basis for the district court’s immunity denial and argue that, even under those facts, the defendant did not violate clearly established federal law.
- Second, the defendant can challenge the factual basis for the district court’s immunity denial, arguing under some different version of the facts that the defendant did not violate clearly established federal law.
Defendants might make only one kind of argument in their appeal, or they might argue them both in the alternative.
Johnson holds that the courts of appeals generally lack jurisdiction to address the second kind of argument. Anytime defendants base an argument on facts other than those that the district court took as true (and don’t invoke an exception to Johnson), the court of appeals lacks jurisdiction over that argument. If only some of the defendants’ argument rely on different facts, courts of appeals will often ignore those arguments and address other arguments over which they have jurisdiction. If all of the defendants arguments rely on different facts, then the court lacks jurisdiction over the entire appeal.
Jurisdiction in qualified-immunity appeals thus turns on what the defendant argues in the court of appeals, not—as Judge Fletcher contends—what the defendant argues in the district court. As much can be seen in the Supreme Court’s decision in Behrens v. Pelletier. Decided a year after Johnson, Behrens is known primarily for holding that defendants can appeal from the denial of qualified immunity at both the motion-to-dismiss and summary-judgment stages, even if that means two appeals in a single action. But the plaintiff in Behrens also argued that there was no appellate jurisdiction over the denial of qualified immunity because the district court had determined that genuine issues of material fact existed.
Behrens said that this argument misreads Johnson:
Johnson held, simply, that determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified-immunity case; if what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that particular conduct occurred, the question decided is not truly “separable” from the plaintiff’s claim, and hence there is no “final decision” . . . .
But, the Court continued, denials of qualified immunity at summary judgment are appealable to the extent they raise abstract issues of law relating to immunity, such as whether the violated right was clearly established. So despite the district court’s conclusion in Behrens that material fact issues existed, the defendant could appeal to argue that the facts taken as true by the district court—that is, the facts that the district court thought a reasonable factfinder could find—did not amount to a clear constitutional violation.
Reinforce—not Overrule—Johnson
Once you slice up the aspects of a district court’s denial of qualified immunity at summary judgment, Johnson makes a lot more sense. And Johnson’s limit on the scope of qualified-immunity appeals is a good rule. Johnson should streamline these appeals by focusing appellate courts on the core qualified-immunity questions: did a violation of federal law occur, and was that violation clearly established? So Johnson should not be overruled. If anything, it should be reiterated and strengthened.
Estate of Anderson v. Marsh, 2021 WL 139733 (9th Cir. Jan. 15, 2021), available at the Ninth Circuit and Westlaw.