Posts tagged “Qualified-Immunity Appeals”

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.…

The Bivens question asks whether an implied constitutional remedy exists for a federal official’s unconstitutional conduct. The Supreme Court has held that this question is within the scope of a qualified-immunity appeal. That is, in an interlocutory appeal from the denial of qualified immunity, the court of appeals can address whether a Bivens remedy exists.…

In Hicks v. Ferreya, the Fourth Circuit refused to address the Bivens question in an interlocutory qualified-immunity appeal. The Bivens question—which asks whether an implied constitutional cause of action exists for a federal official’s alleged violation of the plaintiff’s rights—is normally appealable alongside the denial of qualified immunity. But the defendants in Hicks failed to raise the issue in the district court.…

I’ve criticized the current regime of interlocutory qualified-immunity appeals quite a bit on this site. I recently wrote about how Mitchell v. Forsyth—which created qualified-immunity appeals—is a borderline coherent decision (if that). I’ve also recently touched on how the courts have steadily expanded the scope and availability of qualified-immunity appeals while undermining the supposed limits on those appeals.…

In 1985’s Mitchell v. Forsyth, the Supreme Court held that government officials can immediately appeal from the denial of qualified immunity. This right to appeal impedes the swift resolution of many civil-rights actions, and it has been rightly criticized. But the right to appeal isn’t the only problem. In the years since Mitchell, courts have steadily expanded the scope and availability of qualified-immunity appeals.…

In Mitchell v. Forsyth, the Supreme Court held that government officials can immediately appeal from the denial of qualified immunity. Regardless of whether these denials should be appealable (a debatable point), the Court fudged the collateral-order doctrine to squeeze qualified-immunity appeals into it. The fit wasn’t—and never has been—pretty.…

In Monday’s Orn v. City of Tacoma, the Ninth Circuit repeatedly rejected a defendant’s attempt to argue the facts in an interlocutory qualified-immunity appeal. Although defendants have a right to immediately appeal the denial of qualified immunity, that right is limited when immunity is denied at summary judgment. The court of appeals can review whether the defendant violated clearly established federal law.…

Updated July 2021: The article has been published in the Georgia Law Review (55 Ga. L. Rev. 959 (2021)), and the final version is available on SSRN.

Last year year I wrote that Scott v. Harris’s blatant-contradiction rule for qualified-immunity appeals is an unpragmatic and unnecessary rule that should be rejected.…

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.…

In King v. LeBlanc, the Fifth Circuit dismissed a qualified-immunity appeal that challenged only the district court’s determination that a genuine fact issue existed as to the officer’s deliberate indifference. This far-too-common practice of challenging the facts in qualified-immunity appeals wastes a lot of time for courts and plaintiffs. In King, the Fifth Circuit was quick to remind defendants that it lacks jurisdiction over these arguments.…