The Seventh Circuit recently declined to apply Scott’s blatant-contradiction exception to Johnson v. Jones. But it never should have been asked to do so; this exception is neither practically sound nor needed.
May 19, 2019
Update: My article on this issue—Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals—is now available to read on SSRN.
Last week, in Gant v. Hartman, the Seventh Circuit held that it lacked jurisdiction under Johnson v. Jones to review an interlocutory qualified-immunity appeal when the defendant failed to accept the facts assumed by the district court. In the course of doing so, the court held that Scott v. Harris’s blatant-contradiction exception to Johnson did not apply, as nothing in the summary-judgment record blatantly contradicted the district court’s assumed facts. Most courts have read Scott to create this blatant-contradiction exception. And I’m currently working on an article arguing that this is the best way to reconcile Johnson and Scott. But I also argue that the blatant-contradiction exception is an unpragmatic and unnecessary rule that should be rejected.
This post covers the decision in Gant, including background on Johnson and Scott. It then briefly addresses why Scott’s blatant-contradiction exception is an impractical rule of appellate jurisdiction.
The Seventh Circuit’s Decision in Gant
Gant involved an excessive force claim against a police officer who shot the plaintiff while he fled an armed robbery. The officer moved for summary judgment on qualified-immunity grounds, but the district court denied the motion. The district court concluded that the evidence would permit a reasonable jury to find that the plaintiff was trying to surrender (or did not have the opportunity to surrender) when he was shot.
The officer immediately appealed. But the Seventh Circuit held that it lacked jurisdiction to review the officer’s challenge to the district court’s assessment of the summary-judgment record.
Although the Supreme Court held in Mitchell v. Forsyth that defendants can immediately appeal the denial of qualified immunity under the collateral-order doctrine, it subsequently placed limits on the scope of that appeal. When a district court denies qualified immunity at the summary-judgment stage, it must first determine what plaintiff-favorable facts a reasonable jury could find. The district court then determines whether those facts make out a clear violation of federal law. In Johnson v. Jones, the Supreme Court held that in an appeal from a district court’s denial of qualified immunity at the summary judgment stage, the court of appeals has jurisdiction to address only the second question—whether the district court’s assumed facts constitute a clear violation of federal law. The court of appeals lacks jurisdiction over the first question—whether the summary-judgment record supports the district court’s assumed facts.
The defendant in Gant failed to accept the district court’s version of the facts—indeed, based his argument on facts different than those assumed by the district court—and the Seventh Circuit accordingly held that it lacked jurisdiction to hear the appeal under Johnson.
The Gant court also held that Scott v. Harris’s “blatant-contradiction” exception to Johnson did not apply. In Scott, the Supreme Court rejected the facts that the district court had assumed, holding that a video of a high-speed car chase “blatantly contradicted” the those assumed facts. The Court did so, however, without mentioning Johnson or appellate jurisdiction. Courts of appeals have since struggled to reconcile Johnson’s jurisdictional limit with the analysis in Scott. Most have concluded that Scott created a blatant-contradiction exception to Johnson: an appellate court can review the district court’s assumed facts when something in the summary-judgment record blatantly contradicts those assumed facts.
The Seventh Circuit emphasized this exception’s narrow scope and held that it did not apply to the record in Gant. Nothing in the summary-judgment record, including videos of the shooting, blatantly contradicted the district court’s assumed facts.
The Blatant-Contradiction Exception
The Seventh Circuit was almost certainly correct to refuse to apply Scott’s blatant-contradiction exception in Gant. The problem with Gant is that a court again had to deal with Scott‘s blatant-contradiction exception.
I’m currently working on a series of articles on interlocutory appeals from the denial of qualified immunity (which I often just call “qualified-immunity appeals,” for simplicity’s sake). One of them tackles this blatant-contradiction exception. The article contends that the blatant-contradiction exception is probably the best way of reconciling Johnson and Scott, which at first (and probably second and third) glance seem squarely inconsistent with one another. Most other ways of reconciling the cases make no sense, deem Johnson implicitly overruled, or both.
I also argue that the blatant-contradiction exception is a bad rule. Some have argued that Scott wrongly changed the summary-judgment standard and opened the door (or further opened the door) to resolving fact questions at summary judgment. Others have asked whether it is even possible for courts to identify blatant contradictions; video evidence must be interpreted and construed, and different people might view a video differently without appreciating the subjectivity of their perception. (I have linked to several articles on both of these points below.)
But even if courts can occasionally identify blatant contradictions in a summary-judgment record, Scott’s exception to Johnson is a bad rule of appellate jurisdiction for at least two reasons.
First, it is an unwieldy and inefficient method for determining appellate jurisdiction. Johnson meant to make qualified-immunity appeals more efficient by saving appellate courts from having to review a summary-judgment record. Scott creates an exception to this rule when something in that record blatantly contradicts the district court’s assumed facts. But determining whether the exception applies requires reviewing the summary-judgment record—the very action that Johnson meant to save the courts from doing. Scott’s blatant-contradiction rule also results in many wasteful appeals, as courts regularly decide whether a blatant-contradiction exists—and thus whether they have jurisdiction to hear the case—only after full briefing and argument on the merits. This often results in wasted efforts and unnecessary delays in district court proceedings.
Second, all of this work is unnecessary. My intuition says there’s no reason to believe that district courts frequently assume facts that are blatantly contradicted by the record. To test this intuition, I read every qualified-immunity appeal that invoked some variation on the Scott’s blatant-contradiction exception in the twelve years since Scott was decided. There were 228 cases. Of those, the court squarely addressed whether something in the summary-judgment record blatantly-contradicted the district court’s assumed facts 136 times. And the court unanimously held that a blatant contradiction existed in only 21 of those decisions (or 15%). In 100 decisions, the court unanimously held that there was no blatant contradiction. The remaining cases were either split or could not be coded for a variety of reasons.
The blatant-contradiction exception’s existence nevertheless invites defendants to invoke it, even when there is little chance of succeeding on the argument. It also requires appellate courts to beat back these attempts. Even assuming that district courts occasionally assume facts that are blatantly contradicted by the summary-judgment record (and assuming that the courts of appeals can reliably identify them), all of this work is hardly worth it to identify the rare case in which the district court actually makes such a clear error.
Scott’s blatant-contradiction exception to Johnson needs to go. A better practice would be one modeled on that of the Third Circuit. In Forbes v. Township of Lower Merion—in an opinion by then-Judge Alito—the Third Circuit created a supervisory rule that requires district courts denying qualified immunity to specify the material facts that are and are not subject to genuine dispute and explain their materiality. A similar procedure would require district courts to expressly state their assumed facts and then limit the appellate analysis to whether those assumed facts constitute a clear constitutional violation. There would be no going behind those assumed facts, even if the defendant argues that the record blatantly contradicts them.
This change could be made via judicial decision. But a better path would be rulemaking. The Rules Committee can create rules governing the timing of appeals. And, whether part of wholesale reform or a more focused effort, qualified-immunity appeals are ripe for rulemaking. Granted, many other issues will need to be resolved before a satisfactory rule can be crafted (including, for example, pendent appellate jurisdiction in qualified-immunity appeals). But the blatant-contradiction exception must be part of any reform.
Links
- Gant v. Hartman, ___ F.3d ____, 2019 WL 2098368 (7th Cir. 2019): Slip opinion, Google Scholar, Westlaw
Scholarship on Scott and the Perception of Video Evidence
- Dan M. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 Harvard Law Review 837 (2009).
- Elizabeth G. Porter, Taking Images Seriously, 114 Columbia Law Review 1687 (2014).
- Jessica Silbey, Cross-Examining Film, 8 University of Maryland Law Journal of Race, Religion, Gender & Class 101 (2008).
- Howard M. Wasserman, Video Evidence and Summary Judgment: The Procedure of Scott v. Harris, 91 Judicature 180 (2008).
- Howard M. Wasserman, Orwell’s Vision: Video and the Future of Civil Rights Enforcement, 68 Maryland Law Review 600 (2009).
Scholarship on Scott and Summary Judgment
(Note, several of the articles on Scott and video evidence also discuss Scott’s effect on summary judgment.)
- Alexandra D. Lahav, Procedural Design, 71 Vanderbilt Law Review 821 (2018)
- Richard Marcus, Confessions of a Federal “Bureaucrat”: The Possibilities of Perfecting Procedural Reform, Western State University Law Review 103 (2007)
- Tobias Barrington Wolff, Scott v. Harris and the Future of Summary Judgment, 15 Nevada Law Journal 1351 (2015)
See also
- Michael E. Solimine, Are Interlocutory Qualified Immunity Appeals Lawful?, 94 Notre Dame Law Review Online (forthcoming 2019), which argues that the current law on qualified-immunity appeals should be overturned or limited, with further development left to the rulemaking process.