Can the courts of appeals separate the “factual” and “legal” arguments in a qualified immunity appeal, ignoring the former and addressing the latter? Should they?
December 7, 2021
When a district court denies qualified immunity at summary judgment, defendants have a right to appeal. But the scope of that appeal is limited. With rare and narrow exceptions, the court of appeals lacks jurisdiction to review the genuineness of any fact disputes—i.e., the facts that (according to the district court) a reasonable jury could find. The court of appeals must instead take the factual basis for the immunity denial as given and address only whether those facts amount to a violation of clearly established law. So courts of appeals must dismiss appeals that challenge the factual basis of an immunity denial and review only those that raise more abstract questions about the existence and clarity of a constitutional violation.
But what should an appellate court do if a defendant both challenges the factual basis for an immunity denial and raises those more abstract questions? The Sixth Circuit recently wrestled with this question in Gillespie v. Miami Township. The defendant in Gillespie repeatedly challenged the factual basis for an immunity denial. The Sixth Circuit dismissed the appeal in its entirety, concluding that these factual challenges were crucial to all of the defendant’s arguments. Judge Bush dissented in part to argue that the court should have separated the defendant’s impermissible factual challenges from his other arguments and addressed the latter.
The disagreement in Gillespie—the extent to which a court of appeals should dismiss factual challenges but then address any residual legal issues—seems to be one about how much leeway to give defendants in qualified-immunity appeals. If a defendant challenges the factual basis for an immunity denial, should the court of appeals pick through the defendant’s brief in search of arguments over which the court might have jurisdiction? Given the frequency of defendants’ challenging the factual basis for immunity denials—and the clarity of the law holding that those challenges are improper—I lean towards dismissing appeals when defendants never accept (for the purposes of appeal) the district court’s version of events. As Gillespie pointed out (and as I have, too), the limits on the scope of qualified-immunity appeals have been the law for over 25 years. Defendants who flout those limits add wholly unnecessary complexity, expense, and delay to civil-rights litigation. If these defendants cannot be bothered to keep their appeals within clear jurisdictional bounds, they should not get the benefit of immediate appellate review.
The Gillespie Litigation
The plaintiff in Gillespie spent 20 years in prison before the Ohio courts vacated his convictions due to the failure to disclose exculpatory evidence and the plaintiff’s actual innocence. The plaintiff then sued the police officer who was largely responsible for his prosecution and conviction. The plaintiff alleged that the officer “suppressed exculpatory evidence, arranged an unduly suggestive eyewitness identification procedure, fabricated inculpatory evidence, assisted in maliciously prosecuting him, and destroyed exculpatory evidence.”
The officer eventually sought qualified immunity. But the district court determined that genuine issues of fact precluded the defense. The officer then appealed.
“Factual” and “Legal” Issues in Qualified-Immunity Appeals
In denying qualified immunity at summary judgment, a district court must determine the genuineness of any fact disputes. This requires assessing the record and taking as true (for purposes of the motion) the most plaintiff-favorable version of the facts that a reasonable jury could find. If the parties dispute this version of event—and have evidence to back up that dispute—a genuine fact issue exists.
The district court must also determine whether those fact issues are material. This inquiry requires asking the two core qualified-immunity questions. Taking as true the most plaintiff-favorable version of the facts that a reasonable jury could find, do those facts make out a violation of federal law? If they do, was the law clearly established at the time of the violation? If the answer to both questions is yes, then summary judgment should be denied.
These two inquiries are often referred to as the “factual” and “legal” issues in a qualified-immunity denial. These are odd labels. Both are legal issues—the genuineness of a factual dispute is a legal question for the district court, as is the materiality of any fact dispute.
Regardless, the factual/legal argument distinction is well established and, putting aside the odd labels, makes a lot of sense. The distinction matters for appellate jurisdiction. Defendants have a right to appeal from the denial of qualified immunity. But when the district court denies immunity at summary judgment, the scope of that appeal is limited. Johnson v. Jones held that the courts of appeals have jurisdiction to address only the materiality of any fact disputes. With rare and narrow exceptions, they cannot review whether those fact disputes are genuine.
The courts of appeals thus lack jurisdiction to address challenges to the factual basis for an immunity denial. They can address only the more abstract questions of whether the facts taken as true by the district court amount to a violation of clearly established law. The courts of appeals accordingly dismiss appeals that challenge nothing more than district court’s determination that fact issues are genuinely disputed. And they do so with some regularity, as defendants all too frequently flout this jurisdictional limit on qualified-immunity appeals.
The Arguments in Gillespie
In Gillespie, the Sixth Circuit concluded that the defendant had similarly flouted Johnson’s limit on qualified-immunity appeals. And that flouting required dismissing the appeal.
Before doing so, however, the court had to determine whether it could separate the officer’s improper factual challenges and the legal arguments over which the court would normally have jurisdiction. The Sixth Circuit said that when factual challenges are “crucial” to a qualified-immunity appeal, it will dismiss the appeal for a lack of jurisdiction. This rule holds even if a defendant also contests whether the law is clearly established. When defendants fail to take the facts as given and instead rely on their own version of events, the “court cannot consider those otherwise valid arguments because [the defendants have] failed to satisfy a crucial jurisdictional prerequisite.” But when factual disputes are not “crucial” to a qualified-immunity appeal, the Sixth Circuit will “separate an appealed order’s reviewable determination (that a given set of facts violates clearly established law) from its unreviewable determination (that an issue of fact is ‘genuine’).”
In Gillespie, “almost all” of the officer’s arguments consisted of challenges to the factual basis for the immunity denial. “This repeated failure to accept [the plaintiff]’s version of the facts [was] fatal to [the officer]’s appeal”:
The factual disputes he raises in his briefing serve as the sole bases for his arguments about clearly established law, and he continued with that approach at oral argument. These disputes are “crucial” to [the officer]’s contentions, which assert that because the district court erred in finding certain facts, the law was not clearly established. [The officer] effectively says that “the resolution of these factual issues is needed to resolve the legal issue”—which, as we have recognized, strips jurisdiction entirely. These disputes are not minor, and [the officer]’s insistence that the district court’s thorough opinion is blatantly and demonstrably false is unavailing. We conclude that [the officer]’s failure to comply with the basic requirements of an appeal from a denial of qualified immunity means that we do not have jurisdiction over his appeal.
The court went on to explain the costs of improper, fact-based qualified-immunity appeals, as these appeals stymie a case’s development in the district court. And “[i]t has been clear for decades to litigants that this litigation strategy is improper.” Indeed, the Sixth Circuit noted that these appeals can warrant sanctions.
Separating the Arguments in Gillespie & Elsewhere
Judge Bush concurred in part and dissented in part. He agreed with the majority that the court lacked jurisdiction over the officer’s factual challenges. But he thought that those factual disputes were not not enough to deprive the court of jurisdiction over the entire appeal. As Judge Bush saw things, the court could “excise the prohibited fact-based challenge” and address what remained. On the merits of what remained, Judge Bush would have affirmed.
This isn’t the first time the Sixth Circuit has disagreed about whether it could sever the core qualified-immunity issues from a defendants’ factual challenges. Last year, in Sevy v. Barach, the court divided over whether it could hear an appeal when the defendant never accepted the district court’s reading of the record. The majority concluded that the factual disputes were crucial to the plaintiff’s claims and the defendant’s immunity, requiring the court to dismiss for a lack of jurisdiction. Concurring in part and in the judgment, Judge Readler contended that the court could conduct at least some review of the factual basis for an immunity denial. He also argued that the court should not dismiss an appeal “merely because the defendant made some factual arguments or used aspects of her own factual account in mounting a legal argument for qualified immunity.” Dismissal was required, Judge Readler thought, when defendants challenge only the factual basis for assessing immunity and admit that the plaintiff’s version of events make out a clearly established violation of federal law.
What to Do With These Appeals
So what should the courts of appeals do when defendants challenge the factual basis for an immunity denial and also make some separate (or separable) argument about the existence and clarity of a constitutional violation? It might help to consider the different kinds of arguments defendants might make in a qualified-immunity appeal. In any case, the defendant wants the court of appeals to hold that there was no constitutional violation or, if there was, that the law was not clearly established. Those arguments must be based on some set of facts. Putting aside any exceptions to Johnson v. Jones, there are essentially two kinds of arguments:
- Under the version of the events that the district court thought a reasonable jury could find, did the defendant violate the law, and was that law clearly established?
- Under some other version of events—probably one more favorable to the defendant—did the defendant violate the law, and was that law clearly established?
The court of appeals has jurisdiction to review the first argument. But absent an exception to Johnson, the court lacks jurisdiction over the second. So if the defendant makes only the first argument—relying on the version of the events that the district court thought a reasonable jury could find—the court of appeals can hear the case. If the defendant makes only the second argument—relying on some other version of events—the court of appeals lacks jurisdiction. And if the defendant makes both (say, as alternative arguments), the court of appeals should address the first argument but dismiss the appeal insofar as it makes the second argument.
This suggests that a defendant must accept the district court’s version of events—at least in the alternative—before the court of appeals can hear the appeal. A contrary rule requires courts of appeals to parse defendants’ arguments in an effort to decipher and separate any arguments over which the court might have jurisdiction. That’s an odd use of appellate resources. In most other contexts, courts refuse to do the parties’ work for them.
Further, the more abstract qualified-immunity issues—over which the appellate courts have jurisdiction—cannot be cleanly separated from a defendant’s presentation of the facts. These issues cannot be decided in a vacuum. They must instead be decided with reference to some set of facts. Indeed, when discussing clearly established law, courts often emphasize that they cannot define the law at too high a level of generality.
Thanks to Michael Solimine for sending this case my way.
Gillespie v. Miami Township, 2021 WL 5575563 (6th Cir. Nov. 30, 2021), available at the Sixth Circuit and Westlaw.