The Eighth Circuit said it could review the misstatement and misapplication of the summary-judgment standard in a qualified-immunity appeal. But that might circumvent Johnson v. Jones.
October 21, 2023
In Washington v. City of St. Louis, the Eighth Circuit vacated a denial of qualified immunity because the district court misstated and misapplied the summary-judgment standard. The Eighth Circuit thought this was a legal issue over which it had jurisdiction in a qualified-immunity appeal.
But I’m not sure. Most (if not all) reversible summary-judgment decisions can be characterized as misunderstandings or misapplications of the summary-judgment standard. And Johnson v. Jones said that some of these reversible summary-judgment decisions—those involving evidence sufficiency—are off limits in immediate appeals from the denial of qualified immunity. Washington might have just restated the evidence-sufficiency inquiry in a way that gets around Johnson.
The Denial of Immunity in Washington
Washington stemmed from the overdose and death of someone held in jail. Simplifying only a little bit, the decedent’s representative sued three jail guards for deliberate indifference. Alongside their answer to the complaint, the defendants moved for summary judgment on qualified-immunity grounds and also sought a stay of discovery.
It appears that no discovery took place. That created an obvious problem for the plaintiff: without discovery, she could not adequately respond to the defendants’ motion.
The district court nevertheless denied summary judgment. I’ll get to its reasons in a moment. For now, it’s enough to know that the district court did so, and the defendants then appealed.
Jurisdiction Over the Summary-Judgment Standard
The Eighth Circuit vacated the district court’s decision and remanded for further proceedings. The court of appeals recognized its limited jurisdiction in qualified-immunity appeals; sufficiency of the evidence was off of the table. But the Eighth Circuit said that it could review “abstract issues of law.” And the court found two such issues in the appeal.
First, the district court applied the wrong summary-judgment standard. The district court had denied summary judgment because the defendants had not produced evidence to definitively defeat the plaintiff’s claim. But Celetex Corp. v. Catrett says that doing so is not necessary. Defendants can instead point to the lack of evidence supporting the plaintiff’s claims.
Second, the district court relied on the plaintiff’s unsworn complaint in rejecting the evidence that the defendants had supplied. (I’m guessing this was because the district court did not allow any discovery.) But a party cannot resist summary judgment by relying on unsworn allegations in a complaint.
The Eighth Circuit accordingly vacated the district court’s decision and remanded for further proceedings. In doing so, the court of appeals noted that the district court could reconsider its decision to stay discovery.
Circumventing Johnson?
I have some doubts about Washington. The Supreme Court held in Johnson v. Jones that the scope of qualified-immunity appeals generally does not include the genuineness of any fact disputes. With narrow exceptions, courts of appeals must instead take as given the district court’s conclusion about what facts a reasonable jury could find. The court of appeals reviews only whether those facts amount to a violation of clearly established law.
Washington might tread into the forbidden territory. To be sure, the court addressed only legal issues. But not all legal issues are fair game in a qualified-immunity appeal. After all, the very question that Johnson forbade appellate courts from reviewing—the genuineness of a fact dispute—is a legal issue.
Washington doesn’t look much different from reviewing the genuineness of the fact disputes. Presumably the district court determined that a reasonable jury could find that the plaintiff’s version of events was accurate. That determination might be right or wrong. But Johnson says that it’s generally off limits.
The Eighth Circuit appears to have gotten around Johnson by holding that the district court (1) applied the wrong summary-judgment standard and (2) relied on inappropriate material. But most (if not all) reversible summary-judgment decisions could be characterized as “misapplications” of the summary-judgment standard. And inquiring into what stuff (or lack of stuff) the district court relied on in denying summary judgment is little more than in inquiry into what facts a reasonable jury might find.
The summary-judgment denial in Washington might be especially wrong. (That’s probably because the district court did not allow any discovery; had it done so, the plaintiff might have had the evidence needed to avoid summary judgment.) In fact, the case might have been an appropriate one to apply the blatant-contradiction exception to Johnson, though I still doubt that this exception is ever appropriate. But courts should not try to circumvent Johnson by re-characterizing the very issue that Johnson forbade them from reviewing.
Washington v. City of St. Louis, 2023 WL 6887729 (8th Cir. Oct. 19, 2023), available at the Eighth Circuit and Westlaw