Koh v. Ustich shows the need to screen fact-based qualified-immunity appeals before they impose unnecessary costs and delays in civil rights cases.
August 16, 2019
In Koh v. Ustich, the Seventh Circuit dismissed a qualified-immunity appeal because all of the defendants’ arguments disputed the version of facts assumed by the district court. It was an undoubtedly correct decision. But the appeal appears to be another unfortunate example of imposing unnecessary delay and expense on plaintiffs’ civil rights claims for no good reason. This can happen because the law governing qualified-immunity appeals is not conducive to early screening of improper appeals.
Koh’s confession, trial, acquittal, and § 1983 suit
Hyung Seok Koh was prosecuted for murdering his son. Early one morning, he and his wife found their son lying in a pool of blood in the entryway of their home. A knife was nearby. They called 911. But rather than allow the couple to accompany their son to the hospital, police took them to the station and began questioning Koh. Koh spoke Korean and limited English. But he was interrogated mostly in English (one officer spoke Korean in social settings but was not a trained translator). And at one point in the interrogation Koh gave a one- or two-word response indicating that he had killed his son in self defense.
Koh was charged with murder and spent nearly four years in jail before his case finally went to trial, where a jury acquitted him.
He and his wife then sued the officers who interrogated him. They pleaded a number of claims, but relevant to the present discussion is their fifth amendment claim that Koh’s confession was unlawfully coerced. The district court denied the officers’ request for qualified immunity, and they appealed.
The jurisdictional limits on qualified-immunity appeals
The Seventh Circuit began by setting out at length the jurisdictional limits on qualified-immunity appeals. It’s language is worth quoting at some length:
Our review . . . is limited to pure legal issues. Consideration of any factual questions is outside our jurisdiction. For purposes of appeal, an appellant may take all facts and inferences in plaintiff’s favor and argue those facts fail to show a violation of clearly established law. When the district court concludes that factual disputes prevent the resolution of a qualified immunity defense, these conclusions represent factual determinations that cannot be disturbed in a collateral order appeal, such as this one. Our review is further limited in that we may not make conclusions about which facts the parties ultimately might be able to establish at trial, nor may we reconsider the district court’s determination that certain genuine issues of fact exist. To establish jurisdiction, appellants must present purely legal arguments, but if those arguments are dependent upon, and inseparable from, disputed facts, we do not have jurisdiction to consider the appeal.
(Cleaned up.)
The court then explained that it lacked jurisdiction over all of the officers’ arguments, as they all relied on facts other than those assumed by the district court. The officers purported to accept the district court’s version of the facts on appeal. But the Seventh Circuit detected a “back-door effort to contents the facts,” as the officers characterized the interrogation in ways far different from the district court.
The officers’ improper arguments
The officers argued, for example, that they had “recruited an interpreter to eliminate or lessen the language barrier.” But the district court, viewing the evidence in the light most favorable to Koh, determined that Koh was confused and didn’t understand the officers:
Many of Koh’s answers were altogether nonsensical, showing (or so a reasonable jury could find) that he did not understand what was going on. For example, Koh responded to Graf’s question about what kind of person his son was by narrating what happened yesterday morning. At another point in the interview, Koh answered a question about whether he saw a weapon by telling Graf about the tools he kept for his vending machine business. During one tense moment, Graf asked Koh, “Would God want Paul to have his father sitting here and telling us a story that’s not true?”—a question that should obviously have been answered “no”—but Koh said “yeah.” As the interview went on, Koh largely defaulted to giving one word or unintelligible answers, or responding that he did not know or could not remember.
As another example, the same officers argued on appeal that they never threatened or intimidated Koh. But the district court held that a reasonable jury could find that they did so.
A third officer argued on appeal that he acted only as an interpreter and was not involved in the interrogation. But the district court had determined that this officer “participated in the interrogation itself and did not act as a mere interpreter” (or at least a reasonable jury could find as much).
These and other facts were material to Koh’s fifth amendment claim, and the district court deemed them genuinely disputed. The defendants nevertheless flouted the jurisdictional limits on qualified-immunity appeals and argued their own version of the facts. The court accordingly dismissed the appeal for lack of jurisdiction.
Analysis of Koh
The Seventh Circuit’s decision in Koh was undoubtedly correct. But it’s an example of the sorry state of interlocutory qualified-immunity appeals. The appeal never should have been filed—the district court found that a jury could find facts that rendered the defendants liable, and the officers didn’t bother to dispute as much on appeal. They instead tried to shade the facts in their favor—in a way that would render them immune.
What a waste of time. If the defendants were looking for delay, they got it. Koh filed his case in 2011. The district court denied summary judgment in March 2018. And the notice of appeal in Koh was filed in April 2018. That means this week’s decision came over 480 days after the notice of appeal. And during the 16 or so months it took to decide the appeal, the case stalled in the district court. An April 2018 docket entry says that the district court stayed the case pending resolution of the the appeal, and the record doesn’t reflect any other substantial activity since then. Koh asked the district court to declare the appeal frivolous, but the district court denied that motion.
These sorts of qualified-immunity appeals occur with some regularity. (They regularly appear on my weekly roundups.) Sometimes the defendants made arguments on both their own version of the facts and the version assumed by the district court. In those cases, courts generally ignore the first set of arguments and address only the second. Other times defendants file appeals like that in Koh, basing all of their arguments on facts different from what the district court assumed. And courts normally dismiss those appeals in their entirety.
When some of a defendant’s arguments violate the jurisdictional limits on qualified-immunity appeals, those arguments add unnecessary expense and delay to the appeal. Risk-averse plaintiffs will address both jurisdiction and the merits, which results in wasted merits briefing. Things are even worse in cases like Koh, in which the entire appeal is beyond the court’s jurisdiction. The entire appeal is a waste.
And the current procedures for qualified-immunity appeals do not permit the easy weeding out of these appeals early in their life. It might not be clear at the outset of a qualified-immunity appeal whether the defendant will argue the facts, the law, or both. And even if the defendant wants to dispute the facts, the blatant-contradiction exception to the normal jurisdictional limits creates a window for doing so. (The defendants in Koh apparently did not invoke this exception.) It’s thus difficult to determine until after the defendants’ opening brief whether jurisdiction exists in a qualified-immunity appeal.
A better option might be switching to discretionary appellate jurisdiction over qualified-immunity appeals. Defendants that want to appeal the denial of qualified immunity could petition for permission to appeal. And in that petition they would specify the arguments they want to present on appeal. The courts of appeals could then screen attempts to dispute the facts before district court proceedings are stayed and the parties have engaged in extensive briefing. They could also identify the qualified-immunity appeals that are worth delaying district court proceedings to address.
I’m exploring the possibility of moving to discretionary qualified-immunity appeals in my current work in this area. The Rules Committee probably could make this switch as part of reforming these appeals. But more research is needed before determining whether this is the best avenue for reform.
Koh v. Ustich, 2019 WL 3789246 (7th Cir. 2019), available at the Seventh Circuit and Westlaw.