Unpragmatic and Unnecessary, Extended Edition
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. I also noted that I was working on an article that argued as much and used an original dataset of every blatant-contradiction decision in the 12 years since Scott to show why. The article—called Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals—is now up on SSRN.
Here’s the abstract:
When a district court denies qualified immunity at summary judgment, defendants have a limited right to immediately appeal that decision. In Johnson v. Jones, the Supreme Court held that the courts of appeals have jurisdiction to address only whether the facts assumed by the district court amount to a clearly established violation of federal law. They lack jurisdiction to look behind the facts that the district assumed were true to see whether the evidence supports those facts. Despite this seemingly clear rule, defendants regularly flout Johnson‘s jurisdictional limits, taking improper appeals, creating extra work for appellate courts, and imposing wholly unnecessary costs and delays on civil rights plaintiffs. Plaintiffs and even courts also are sometimes confused by the rule in Johnson. And the Supreme Court’s decision in Scott v. Harris — which appeared to violate Johnson‘s limits without mentioning Johnson or even appellate jurisdiction — has made the jurisdictional rules governing qualified-immunity appeals even less certain.
In this article, I address the law governing jurisdiction in qualified-immunity appeals from summary judgment. I show that Johnson can be read only to mean that the courts of appeals generally lack jurisdiction to review whether the summary-judgment record supports the district court’s assumed facts. I explain how to reconcile the analysis in Scott with the rule in Johnson: Scott created an exception to the general limit on reviewing the district court’s assumed facts when something in the record blatantly contradicts those facts. I argue—based on my analysis of 12 years of decisions invoking this exception—that Scott‘s blatant-contradiction exception is neither pragmatic nor needed. And I offer reforms, via Supreme Court decision or rulemaking, that would both clarify and improve the law governing qualified-immunity appeals.
You can download the paper here.
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