Third Circuit Concurrence on Forbes Rule and Qualified Immunity

One issue that makes jurisdiction over interlocutory qualified-immunity appeals so maddening is the uncertain scope of review. The Supreme Court’s decision in Johnson v. Jones says that courts of appeals are not supposed to review the district court’s conclusion that genuine fact issues exist. Appellate courts should instead take the district court’s assumed facts as given and ask whether those facts make out a clear constitutional violation. But this isn’t always easy, especially if the district court doesn’t explain the facts it assumed in denying qualified immunity.

The Third Circuit has addressed these difficulties with a supervisory rule requiring district courts to explain their denials of qualified immunity at summary judgment. And a recent concurrence from that court’s Chief Judge, D. Brooks Smith, emphasized the importance of this supervisory rule. As I argued in a recent article, other courts—and perhaps even the Rules Committee—should consider the Third Circuit’s practice.

The Appeal in E.D. v. Sharkey

In E.D. v. Sharkey, the Third Circuit affirmed the denial of qualified immunity for employees of an immigration detention center. A female detainee had sued staff and directors at the center after she was sexually assaulted by one of the center’s employees. She also sued the county that ran the detention center, alleging that the county failed to implement policies and procedures to prevent sexual abuse at the center. The district court denied qualified immunity to several of the individual defendants and denied the county’s motion for summary judgment.

The individual defendants appealed, as they are allowed to do under Mitchell v. Forsyth, and the Third Circuit affirmed the denial of qualified immunity. It held that immigration detainees have the same fourteenth amendment due process rights as pretrial detainees. Those rights include the right to bodily integrity. And the individual defendants’ failure to protect the plaintiff from her assailant violated that right.

Chief Judge Smith’s Concurrence

In a concurring opinion, Chief Judge Smith reminded district court’s of their duty to sufficiently explain denials of qualified immunity so that the court can review them.

The duty comes from Forbes v. Township of Lower Merion—a decision written by then-Judge Alito in which the Third Circuit created a supervisory rule for all cases in which a district court denied qualified immunity due to a genuine dispute of material facts:

So that we can carry out our review function without exceeding the limits of our jurisdiction under Johnson v. Jones, we will henceforth require the District Courts to specify those material facts that are and are not subject to genuine dispute and explain their materiality.

The Third Circuit adopted this rule because a district court’s failure to identify genuinely disputed material facts undermined the jurisdictional rules of Johnson. The court had created similar supervisory rules over procedural matters in the past. It did the same here, “requir[ing] that future dispositions of a motion in which a party pleads qualified immunity include, at minimum, an identification of relevant factual issues and an analysis of the law that justifies the ruling with respect to those issues.” The Third Circuit has acknowledged the burden that this supervisory rule imposes on district courts. The court nevertheless requires that it be done.

Apparently the district court’s opinion in E.D. v. Sharkey was a little light on details. While it was enough for the Third Circuit to review the decision, Judge Smith thought it was worth reminding district courts of the Forbes rule:

Forbes has been the rule of our Court for well over a decade and a half, and remains so for good reason. A comprehensive and detailed summary judgment opinion, specifying those facts that are undisputed as well as those that are material and subject to genuine dispute, is vital—and often essential—to our meaningful review on appeal. I write to underscore the continued importance that our judges attach to compliance with the Forbes rule, and to discourage cursory footnote treatment of the factual record in qualified immunity decisions.

Adapting the Third Circuit’s Rule for Everyone

Litigants and courts often struggle with the factual basis on which to assess the entitlement to qualified immunity, especially in interlocutory appeals from the denial of immunity. A rule modeled on that of the Third Circuit could go a long way towards easing these matters.

The Supreme Court could adopt a similar rule for all courts of appeals. It could require that district courts state the facts they assume in denying qualified immunity at summary judgment—specifically, those that are both material and in genuine dispute. The courts of appeals could then be limited to deciding whether those facts specified by the district court spell out a clear constitutional violation. This would save a lot of time and effort in divining the facts on which an appellate court is to assess a claim of qualified immunity.

Or the Rules Committee could craft a procedural rule governing the facts in a qualified-immunity appeal. In 28 U.S.C. § 1292(e) and § 2072(c), Congress gave the Supreme Court the authority to create rules regarding the timing of appeals, which the Supreme Court has delegated to the Rules Committee. The Rules Committee accordingly has the power to reform the law governing interlocutory appeals from the denial of qualified immunity. And were the Rules Committee to tackle qualified-immunity appeals, it could adopt all of the just-described procedures: require that district courts articulate their assumed facts when denying qualified immunity at summary judgment, and require courts of appeals to stick to those assumed facts in assessing whether they make out a clear constitutional violation.

E.D. v. Sharkey, 928 F.3d 299 (3d Cir. 2019), available at the Third Circuit, Google Scholar, and Westlaw. Forbes v. Township of Lower Merion, 313 F.3d 144 (3d Cir. 2002), available at Google Scholar and Westlaw.