A few Sixth Circuit cases hold that the scope of review in qualified-immunity appeals extends to all legal questions. That can’t be right.
July 26, 2019
The courts of appeals often wrestle the scope of their jurisdiction in interlocutory qualified-immunity appeals. One source of trouble is the need to reconcile the Supreme Court’s decisions in Johnson v. Jones and Scott v. Harris. As I’ve written about before, Johnson limits the scope of most qualified-immunity appeals to addressing only whether the facts assumed by the district court make out a clear constitutional violation; appellate courts generally lack jurisdiction to review whether the summary-judgment record supports those assumed facts. And most courts have read Scott to create an exception to this jurisdictional limit when something in the summary-judgment record blatantly contradicts the district court’s assumed facts.
But other ways of reconciling Johnson and Scott exist. Yesterday’s decision from the Sixth Circuit in Peterson v. Heymes illustrates what I call the “legal-issues” interpretation. Under this reading of Scott, the courts of appeals have jurisdiction to address all legal questions in a qualified-immunity appeal.
But that rule can’t be correct. It would effectively overrule Johnson. And it doesn’t make much sense.
The Decision in Peterson
The District Court’s Decision on Collateral Estoppel
Peterson stemmed from the conviction and subsequent exoneration of Jamie Lee Peterson. Peterson had confessed to a 1996 rape and murder. But before trial, he challenged the voluntariness of his confession, arguing that he lacked the capacity to confess and that the police officers used unlawful tactics that led to a false confession. The state court held that the confession was voluntary, and Peterson was convicted. But several years later Peterson’s conviction was vacated after DNA testing showed that he did not commit the crime. (You can read more about Peterson’s case at Northwestern University’s Center on Wrongful Convictions and the University of Michigan’s Innocence Clinic, which represented Peterson in his challenge to his conviction.)
Peterson then sued the officers involved in his interrogation and the County of Kalkaska, which employed one of the officers (the other two were Michigan State Police). He brought several claims, but relevant to the present discussion were § 1983 claims alleging violations of his right against self incrimination.
The officers sought qualified-immunity, arguing that Peterson’s conviction had been deemed voluntary during his criminal proceeding, thereby precluding him—via collateral estoppel—from arguing that it was not. But the district court denied the motions. It held that the the vacatur of the state conviction allowed Peterson to relitigate his confession’s voluntariness. The district court went on to hold that Peterson’s had sufficiently alleged clear constitutional violations by the officers.
The officers appealed the denial of qualified immunity. And in that appeal, they again argued that Peterson should be collaterally estopped from disputing the voluntariness of his confession.
The Sixth Circuit’s Decisions on Jurisdiction and Estoppel
The Sixth Circuit concluded that it had jurisdiction over the appeals. Jurisdiction over the denial of qualified immunity was straightforward: defendants may immediately appeal the denial of qualified immunity. As to collateral-estoppel, the court said that its jurisdiction in an interlocutory qualified-immunity appeal covers all pure issues of law. And the applicability of collateral estoppel was a pure question of law appropriate for interlocutory review.
On the merits of collateral estoppel, the court held that Peterson was not collaterally estopped from challenging the voluntariness of his confession. The state court’s interlocutory rulings—including those on voluntariness—merged into the final judgment. That judgment had been vacated. So the interlocutory rulings were vacated, too.
The Sixth Circuit then affirmed the denial of qualified immunity against the two Michigan State Police officers; Peterson had sufficiently alleged violations of his right against self incrimination. But as to the third—the officer employed by the county—Peterson had not sufficiently alleged the officer’s personal involvement in his interrogation. The court accordingly reversed the denial of immunity to the county officer.
Peterson and the “Legal-Issues” Interpretation of Scott
Peterson’s ultimate jurisdictional conclusion—that the court could address collateral estoppel in a qualified-immunity appeal—is somewhat defensible. Reviewing the abstract question of whether state findings have preclusive effect in federal litigation will overlap little with the merits of the underlying action.
But Peterson’s reasoning—based on the legal-issues interpretation of Johnson and Scott—is less defensible. This interpretation stems from Johnson’s sloppy use of the terms “legal issue” and “issue of law.” Johnson held that jurisdiction existed to address the qualified-immunity inquiry—whether a set of facts constitute a clear constitutional violation. The Johnson Court emphasized that this was a legal issue well suited for interlocutory review. But this focus on legal issues sewed seeds for confusion. After all, the inquiry that Johnson prohibited—whether, based on the summary-judgment record, a genuine fact issue exists—is also a legal issue; a court must determine whether the summary-judgment record presents a genuine issue of fact.
The Johnson Court said that this question about the summary-judgment record was closer to the fact side of the law-fact divide. But some courts have coupled Johnson’s allowance of jurisdiction over legal issues with the Supreme Court’s decision in Scott to hold that jurisdiction now extends to all legal questions.
Peterson cited one of those cases: the Sixth Circuit’s 2014 decision in Roberson v. Torres. Like Peterson, the Roberson court held that it had jurisdiction to review whether findings in a state-court hearing had preclusive effect in a § 1983 case. To reach that conclusion, it read Johnson to prohibit interlocutory review of only evidence-sufficiency questions. Jurisdiction existed over legal issues, even those that would seem to indirectly touch on evidence sufficiency. That is, Johnson’s prohibition applied only “to purely factual issues that the trial court might confront if the case were tried.” The Roberson court ultimately held that the preclusion issue before it was closer to a pure question of law than it was to an issue of evidence sufficiency. The court accordingly had jurisdiction.
Again, this is a defensible conclusion. But the reasoning is troubling. As much can be seen from the other Sixth Circuit cases that read Johnson and Scott to permit interlocutory review of all legal issues in a qualified-immunity appeal.
In Harvey v. Campbell County, the court held that it had jurisdiction to review whether the district court misapplied the legal standards for summary judgment. In moving for summary judgment, the defendants had pointed to the absence of evidence on inadequate training, and the plaintiffs did not respond with any evidence regarding that training. The Sixth Circuit characterized this error as “based in part on a misapplication of the standards governing summary judgment practice,” such that “a pure question of law [was] presented over which [the court had] jurisdiction.” The court analogized this error to the one committed in Scott.
Another Sixth Circuit decision—Chappell v. City of Cleveland—used this same reasoning to hold that Scott permits an inquiry into not only whether a fact dispute is material, but also whether a fact dispute is genuine. The Chappell court noted that the genuineness of a fact dispute is a legal question. And Johnson said that in qualified-immunity appeals the courts of appeals have jurisdiction over legal questions. The court accordingly said that it had jurisdiction to review “legal errors as to whether the factual disputes are (a) are genuine and (b) concern material facts.”
These decisions cannot be correct for at least two reasons.
First, they effectively overrule Johnson. Johnson was clear that courts lack jurisdiction in a qualified-immunity appeal to review the genuineness of a fact dispute. The Supreme Court said as much in the last line of the opinion: “[W]e hold that a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” The Court has reiterated this limit in subsequent opinions and still treats Johnson as good law.
Harvey and Chappell thus cannot be reconciled with Johnson. Harvey would seem to allow plenary review of summary-judgment decisions as part of a qualified-immunity appeal. After all, most reversible summary-judgment decisions could be characterized as “misapplications” of the summary-judgment standard. Chappell is even more clearly inconsistent, as its holding—that the court has jurisdiction to review “legal errors as to whether the factual disputes are (a) are genuine and (b) concern material facts”—is squarely inconsistent with Johnson.
Second, the decisions make no sense. Because the court of appeals cannot expressly say that Johnson is overruled, they must give the decision some lingering effect. What they’ve come up with is to read Johnson as barring the interlocutory review of fact questions. According to the Roberson court, Johnson deprives courts of jurisdiction to review only “purely factual issues that the trial court might confront if the case were tried.” Chappell similarly reads Johnson as banning interlocutory review only of “what happened.”
These readings of Johnson are specious. They read Johnson to deprive appellate courts of jurisdiction over pure fact issues. But there shouldn’t be any pure fact issues in an appeal from summary judgment. That’s because a summary judgment decision does not resolve factual issues. It instead determines only whether meaningful factual questions exist. Decisions applying the legal-issues interpretation accordingly read Johnson to restrict jurisdiction over issues that aren’t actually raised in an appeal from summary judgment. To purport to give Johnson some continuing validity, these decisions give the case a meaningless effect.
Most courts have accordingly rejected the legal-issues interpretation of Johnson and Scott, with several reiterating that they lack jurisdiction to review the genuineness of a fact dispute. The Sixth Circuit even has several decisions endorsing the more common blatant-contradiction interpretation of Johnson and Scott (and one unpublished decision that expressly reads Johnson to prohibit review of the genuineness of a fact dispute). But the rule stealthily persists in the Sixth Circuit; Roberson, Harvey, and Chappelle have not been overturned and are all still good law. Add Peterson to that list. Luckily little harm was done in Peterson, as the Sixth Circuit affirmed on the collateral-estoppel issue.
The Municipal Appeal in Peterson
One last note on Peterson. The County of Kalkaska also appealed the denial of its motion to dismiss the municipal liability claims. Although the court would normally not have jurisdiction over the denial of a motion to dismiss such a claim, several courts of appeals have allowed municipalities to appeal alongside individual defendants—via what’s called pendent appellate jurisdiction—and piggyback on the individuals’ qualified-immunity appeals.
That’s what the Sixth Circuit did here. As mentioned above, the Sixth Circuit reversed the denial of qualified immunity for the county officer. And because the county-employed officer had not violated Peterson’s constitutional rights, the county could not be liable for any constitutional violations. The Sixth Circuit thus reversed the denial of the the county’s motion to dismiss.
As I’ve discussed previously, this practice of entertaining even the possibility of municipal appeals via pendent appellate jurisdiction needs to stop. It’s theoretically, doctrinally, and pragmatically unsound.
Peterson v. Heymes, 2019 WL 3330456 (6th Cir. 2019), available at the Sixth Circuit and Westlaw.