Defendants far too frequently take improper, fact-based qualified-immunity appeals. If immunity sticks around, these appeals should become discretionary.
September 22, 2020
With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment can dispute only the materiality of any fact disputes. These defendants cannot argue that the district court erred in concluding that fact disputes were genuine—that is, they cannot dispute the district court’s determination of what a reasonable jury could find. But defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue only that the district court erred in determining what a reasonable jury could find. The appellate courts eventually dismiss these improper appeals. But at that point, the damage is done. District court often stay proceedings pending the appeal, which can take months or years. These improper appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation.
I regularly mention these improper appeals as part of my weekly roundup. But last week saw enough examples to warrant its own post. These examples illustrate one of the ways in which the special appellate procedures that accompany qualified immunity make civil-rights litigation so difficult. It’s already hard to win a civil-rights suit due to the substantive defense of qualified immunity. The special appellate rules that come with qualified immunity add unnecessary procedural hurdles to that suit. Should qualified immunity stick around in its current or an altered form, the appeals should become discretionary.
The (Supposedly) Limited Scope of Qualified-Immunity Appeals
First, a primer on the limited scope of qualified-immunity appeals. Under Mitchell v. Forsyth, defendants have a right to appeal from the denial of qualified immunity. But when the district court denies immunity at the summary-judgment stage, that right to appeal is limited. In Johnson v. Jones, the Supreme Court held that the court of appeals must take as true the most plaintiff-favorable version of events that the district court thought a reasonable jury could find. With rare exceptions, the court of appeals lacks jurisdiction to review whether the summary-judgment record supports that version of events. It can address only whether that version of events amounts to a clearly established violation of federal law. In other words, the court of appeals can address only the materiality of any factual disputes, not their genuineness.
This has been the law for 25 years. Yet defendants regularly flout these jurisdictional limits. They appeal from the denial of qualified immunity and challenge the version of events that the district court took as true for the purposes of summary judgment. Because the court of appeals lacks jurisdiction to address that challenge, it eventually dismisses the appeal for a lack of jurisdiction. But the damage is done. District court often stay proceedings for months (or even years) while the appeal is pending. This entirely improper appeal thus adds difficulty, delay, and expense to civil-rights litigation.
For a more in-depth discussion of the law in this area, see my forthcoming article “Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals”.
Four Improper Appeals in One Week
Last week saw several improper attempts to challenge the facts in a qualified-immunity appeal.
Stojcevski
Let’s start with the Sixth Circuit’s decision in Stojcevski v. Macomb County, which might be the most flagrant recent attempt to appeal the facts.
The Appeal
Stojcevski arose from the death of a man who was imprisoned in a Macomb County, Michigan jail. The decedent had been locked up after failing to appear for a careless-driving charge. (The judge gave him the choice of paying a $772 fine or spending 30 days in jail; he chose the latter.) Before his imprisonment, the decedent had been taking methadone, oxycodone, Xanax, and Klonopin. Several days into his sentence, the decedent began suffering from severe drug withdrawal. Jail employees moved him to a mental-health unit, where he was regularly monitored.
The employees initially sought medical assistance when the decedent displayed symptoms of withdrawal. But they eventually stopped doing so. The employees instead watched as the decedent spent his last 51 hours lying on the floor of his cell—naked and convulsing, and not eating or drinking for that entire period. After over two days lying on his cell floor, the decedent died.
The decedent’s estate brought Eighth Amendment deliberate-indifference claims against jail employees and failure-to-train claims against the county. The district court dismissed some of the estate’s claims. But it denied several employees’ requests for qualified immunity. The district court also denied the county’s motion to dismiss. Both the employees who were denied immunity and the county then tried to appeal.
The Dismissal
The Sixth Circuit held that it lacked jurisdiction over the employees’ appeal. There appeared to be no dispute over the clearly established law; everyone agreed that, had the employees not sought medical assistance as the decedent’s condition deteriorated, they would be liable for deliberate indifference. The employees instead argued the facts. More specifically, they argued that the decedent’s condition had not worsened in his final hours, such that their earlier requests for medical assistance discharged any duty they owed to the decedent.
That argument directly challenged the district court’s assessment of the record. According to the district court, a reasonable jury could find that the decedent’s condition seriously worsened, but the employees did not seek additional medical assistance. The district court had seen “alarming changes” in the decedent’s condition, particularly in the decedent’s final days. And the employees sought no additional medical assistance as the decedent’s condition deteriorated.
The dispute, then, was about the decedent’s condition before his death. The district court had concluded that a genuine fact issue existed as to this condition, and the Sixth Circuit lacked jurisdiction to review that determination in an interlocutory qualified-immunity appeal.
The Municipal Appeal
The Sixth Circuit also dismissed the county’s appeal. Municipal defendants normally cannot appeal from the denial of a motion for summary judgment. But courts will sometimes allow them to piggyback on their employees’ qualified-immunity appeals via the doctrine of pendent appellate jurisdiction. If the appellate court determines that the plaintiff has not shown a constitutional violation by the individual defendants, these courts will also reverse the denial of summary judgment for the municipality. With no constitutional violation, there is nothing for the municipality to be liable for. The individual defendants’ appeal thus necessarily resolves the claims against the municipality, which the Sixth Circuit and other courts have held is a proper ground for extending pendent appellate jurisdiction.
But the individual employees’ appeal in Stojcevski did not necessarily resolve the claims against the county. For one thing, the Sixth Circuit lacked jurisdiction over the employees’ appeal, so there was no jurisdictional hook for the exercise of pendent appellate jurisdiction. For another, the municipality’s arguments on appeal raised issues unrelated to the individual employees’ entitlement to qualified immunity. There was no overlap in the two appeals, much less “coterminous” issues that might warrant pendent appellate jurisdiction.
Hall
Next is the Eleventh Circuit’s decision in Hall v. Flourney.
The Appeal
Hall involved claims that a deputy sheriff had planted marijuana on the plaintiff’s property. The plaintiff had purchased a property in which someone had been squatting and selling marijuana. A deputy sheriff heard rumors that the plaintiff was selling drugs on this new property, and she arranged for a confidential informant to try and purchase drugs there. The informant returned to the deputy sheriff, claiming to have purchased marijuana on the plaintiff’s property from the squatter that had originally been there. (The plaintiff denied that a sale occurred or that the squatter had ever returned to the property after being evicted. The marked bill that the informant used was never recovered.)
The deputy sheriff and other officers then executed a search warrant on the plaintiff’s property, where they found less than an ounce of marijuana. Although the plaintiff was charged with possession of marijuana, the charge was later dismissed for want of prosecution.
The plaintiff sued the deputy sheriff for, among other things, false arrest and malicious prosecution, alleging that the deputy planted the drugs. The district court denied the deputy’s request for qualified immunity. The district court concluded that genuine fact issues existed as to whether the marijuana found in the plaintiff’s property was planted. And were a jury to find that the deputy sheriff was involved in planting the drugs, she would not be entitled to qualified immunity. The deputy sheriff then appealed.
The Dismissal
The Eleventh Circuit held that it lacked jurisdiction over the appeal. Like the appeal in Stojcevski, there was no dispute over the law; the deputy sheriff “concede[d] that the planting of evidence, if true, would violate clearly established law.” And the court explained that if a qualified-immunity appeal presents no legal questions, the court “cannot review a trial court’s determination of the facts alone at the interlocutory stage.” Yet the deputy sheriff argued on appeal that the district court had erred in concluding that a genuine fact dispute existed as to whether the drugs were planted.
The Eleventh Circuit noted some doubt about the district court’s conclusion; the district court drew inferences that were “far from airtight.” But the question was one of evidence sufficiency, i.e., what a reasonable jury could find based on the record. Reviewing the district court’s answer to that question would mean re-evaluating the summary-judgment record, which is precisely what Johnson prohibits.
Estate of Matthews
In Estate of Matthews v. City of Dearborn, the Sixth Circuit split on the extent to which it could overlook the defendant’s attempts to challenge the facts.
The Appeal
Matthews involved a fatal shooting. A police officer he tried to stop the decedent on suspicion of stealing a Red Bull from a gas station. A scuffle between the decedent and the officer ensued. It ended when the officer shot the decedent nine times. The decedent’s estate sued the officer for deadly force. When the officer sought qualified immunity, the district court determined that fact disputes precluded granting immunity.
The main factual dispute concerned whether the decedent had obtained control of the officer’s gun. The officer contended that the decedent was going after it. But other evidence indicated that the officer’s gun was secured in the officer’s double-locked holster and could not have been loose. The estate’s experts also disputed the officer’s story that the decedent was leaning over the officer when the officer fired; the experts’ assessment of the physical evidence suggested that the decedent was on his back or side.
The officer nevertheless appealed the denial of qualified immunity.
The Dismissal
A majority of the Sixth Circuit held that it lacked jurisdiction over the appeal. The officer’s arguments did not accept the plaintiff’s version of the facts for purposes of the appeal. He instead presented his own version of events. For example, the officer pointed to his own testimony that his gun was loose to dispute the district court’s conclusion that a reasonable jury could find that the gun wasn’t loose. The officer also disputed the district court’s conclusion that a jury could find that the decedent was not standing over the officer when the officer shot him. These factual disputes were central to the immunity issue. Because the officer’s arguments turned on his own version of disputed fact issues, the Sixth Circuit lacked jurisdiction over the appeal.
Judge Readler concurred in the judgment. He thought that the court had jurisdiction over the appeal. Granted, the officer had disputed the genuineness of fact disputes. But Judge Readler thought the court could ignore arguments based on the officer’s version of events and evaluate immunity under the facts that the district court took as true. Conducting that inquiry, Judge Readler concluded that the district court correctly denied immunity. Given the evidence that the officer was in no immediate danger of serious harm, a jury could find that the use of force was excessive.
Responding to the concurrence, the majority noted that the officer had failed to concede the plaintiff’s version of events for purposes of the appeal. So for the officer’s appeal to succeed, the court would need “to resolve disputed facts in his favor and thereby overlook the district court’s factual determinations.” That was something the court lacked jurisdiction to do.
Vasquez
Last is the Fifth Circuit’s decision in Vasquez v. Landon.
Vasquez contains few details. Police responded to a call that the plaintiff in Vasquez was intoxicated and had threatened his neighbor. An officer employed a “distractionary strike” strike on the plaintiff when he did not respond to the officer’s directions. The plaintiff claimed this broke his nose, and he sued the officer for excessive force. Relying largely on body-camera footage of the event, the district court denied the officer’s request for qualified immunity. A reasonable jury, the district court concluded, could determine that the use of force was excessive.
The officer appealed, and the Fifth Circuit dismissed for a lack of appellate jurisdiction. The court of appeals reviewed the body-camera footage and agreed with the district court that genuine fact issues precluded immunity.
The (Unpragmatic) Exception to the Rule: El v. City of Pittsburgh
As mentioned above, there are rare exceptions to Johnson’s general prohibition on reviewing the district court’s assumed facts. Among them is Scott v. Harris’s “blatant-contradiction” exception, which permits a court of appeals to review the genuineness of fact disputes when something in the summary-judgment record “blatantly contradicts” the facts that the district court assumed to be true.
Last week’s Third Circuit decision in El v. City of Pittsburgh illustrates this exception.
The Appeal
El involved excessive-force and failure-to-intervene claims against several police officers. Police stopped the plaintiffs on suspicion of carrying synthetic marijuana. When the plaintiffs emptied their pockets, the police found only tobacco. But one plaintiff (who was 18) did not have identification, and an officer suspected that he made an underage tobacco purchase. When the plaintiffs complained of being harassed, an officer asked, “[D]o you want to know what it feels like to be harassed?” One of the plaintiffs stood and took “one or two small steps.” An officer then grabbed that plaintiff, slammed him into a wall, and then slammed him on the ground. When the other plaintiff rose to defend his compatriot, another officer Tased him.
The plaintiffs sued, and the district court denied qualified immunity. As relevant to the present discussion, one of the plaintiffs’ claims was that an officer failed to intervene to prevent another officer’s use of excessive force. The district court concluded that this officer had adequate time to intervene but failed to do so. The district court also denied qualified immunity on the excessive-force claim. The officers then appealed.
The “Blatant Contradiction”
Regarding the failure-to-intervene claim, the officer argued that the district court erred in concluding that she had sufficient time to intervene. Normally, this issue would be outside the scope of the interlocutory appeal. But the Third Circuit concluded that a video of the altercation blatantly contradicted the district court’s assessment of the evidence. The video showed that everything occurred too quickly for the officer to be able to intervene:
Given the speed with which the incident ended, no reasonable jury could conclude that Lieutenant Kacsuta had a realistic and reasonable opportunity to intervene.
Applying the blatant-contradiction exception, the Third Circuit rejected the district court’s conclusion that the officer had sufficient time to intervene and reversed the denial of qualified immunity.
The court went on to affirm the denial of qualified immunity to the officer who grabbed and slammed one of the plaintiffs. The district court had determined that the plaintiff did not pose a threat to anyone when the officer grabbed him. And the video did not blatantly contradict that conclusion. Nor did the presence of a video allow the court of appeals to come to its own determination of the genuinely disputed facts.
Judge Phipps dissented from the majority opinion insofar as it affirmed the denial of immunity for the officer who grabbed and slammed the plaintiff. Judge Phipps’s disagreement appears to stem from an independent assessment of the video and a de novo determination of the most plaintiff-favorable, record-supported version of the facts. The majority responded to this point by noting that the blatant-contradiction exception is a narrow exception and not “an invitation to find our own facts.”
The Costs of Improper Qualified-Immunity Appeals
The four appeals that the appellate courts dismissed never should have been filed. The appeal in El is defensible only insofar as courts should recognize the blatant-contradiction exception. As I’ve argued elsewhere, they shouldn’t; it is a profoundly unpragmatic and unnecessary rule of appellate jurisdiction.
To be sure, the courts of appeals correctly dismissed the appeals in which the defendants challenged only the facts. But the plaintiffs’ victories on appeal do not repair the damage that the improper appeals have caused. The district court dockets in each of these cases suggest that the improper appeals added wholly unnecessary—and often substantial—delays to the litigation:
- The defendants in Stojcevski filed their notice of appeal in October 2019. That means over 300 days passed between the notice of appeal and last week’s decision. And district court proceedings were stayed for most of that time; the district court stayed all proceedings pending the outcome of the appeal in February 2020.
- The defendant in Hall filed her notice of appeal in July 2018. Resolution of the appeal thus took over two years. And the district court administratively closed the case pending the appeal in November 2018.
- The defendant in Matthews filed his notice of appeal in May 2019. So over 15 months passed between the notice and last week’s decision. Although there is no indication on the district court’s docket that proceedings were stayed, the docket does not reveal any substantial activity in the interim.
- Vasquez involved the smallest delay, though it was still substantial. The defendant appealed in March 2020, and the district court stayed all proceedings the following month. The Fifth Circuit decided the appeal in a relatively brisk five months. Still, that’s five unnecessary months added to the litigation.
A Discretionary Alternative
One way of avoiding these delays would be to make qualified-immunity appeals discretionary. Like interlocutory appeals from class-certification decisions, defendants would have a short window of time to seek permission to appeal the denial of qualified immunity. And while that motion was pending, district court need not stay proceedings. This reform would hopefully cut back on defendants’ taking immediate appeals to delay litigation or impose costs on plaintiffs. Litigation could proceed while the appellate court decided whether to hear the appeal. That discretionary decision could also weed out improper attempts to challenge the district court’s factual assumptions without the need for full briefing and argument.
Stojcevski v. Macomb County, 2020 WL 5569676 (6th Cir. Sep. 17, 2020), available at the Sixth Circuit and Westlaw.
Hall v. Flourney, 2020 WL 5555082 (11th Cir. Sep. 17, 2020), available at the Eleventh Circuit and Westlaw.
Estate of Matthews v. City of Dearborn, 2020 WL 5520638 (6th Cir. Sep. 14, 2020), available at the Sixth Circuit and Westlaw.
Vasquez v. Landon, 2020 WL 5580463 (5th Cir. Sep. 17, 2020), available at the Fifth Circuit and Westlaw.
El v. City of Pittsburgh, 2020 WL 5541155 (3d Cir. Sep. 16, 2020), available at the Third Circuit and Westlaw.