Candido Romo v. Jeff Largen , 723 F.3d 670 ( 2013 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0189p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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CANDIDO ROMO,
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Plaintiff-Appellee,
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No. 12-1870
v.
,
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Defendant-Appellant. -
JEFF LARGEN,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:11-cv-00624—Robert J. Jonker, District Judge.
Argued: April 23, 2013
Decided and Filed: July 23, 2013
Before: GILMAN, ROGERS, and SUTTON, Circuit Judges.
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COUNSEL
ARGUED: Mary Massaron Ross, PLUNKETT COONEY, Detroit, Michigan, for
Appellant. William F. Piper, WILLIAM F. PIPER, PLC, Portage, Michigan, for
Appellee. ON BRIEF: Mary Massaron Ross, PLUNKETT COONEY, Detroit,
Michigan, for Appellant. William F. Piper, WILLIAM F. PIPER, PLC, Portage,
Michigan, for Appellee.
ROGERS, J., delivered the opinion of the court in which, GILMAN, J., joined
and SUTTON, J., joined in part. SUTTON, J. (pp. 11–26), delivered a separate opinion
concurring in part and in the judgment.
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OPINION
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ROGERS, Circuit Judge. Plaintiff Candido Romo was sitting in the driver’s seat
of a parked car, intoxicated, when he was approached by defendant Officer Jeff Largen.
Largen arrested Romo for operating a vehicle while intoxicated, assertedly based on
1
No. 12-1870 Romo v. Largen Page 2
Largen’s observation of Romo’s having driven the car minutes earlier. Romo contends
that he had not been driving. Romo filed a § 1983 suit claiming that Largen violated
his constitutional rights and committed several intentional torts. The district court
denied Largen’s qualified-immunity motion for summary judgment, finding among other
things that a jury could disbelieve Largen’s claim that he had previously seen a very
similar car being driven in violation of traffic laws. Without such prior observation,
Largen lacked probable cause to arrest Romo. Because this is an interlocutory appeal,
we are bound by the district court’s finding that a genuine dispute of material fact
existed as to whether Largen had observed such activity, in the absence of objectively
incontrovertible evidence that he had. We therefore affirm the district court’s denial of
qualified immunity on Romo’s § 1983 claim. The district court also properly permitted
some of Largen’s state-law claims to proceed.
On November 6, 2010, Candido Romo was supposed to meet his brother and
brother-in-law at a bar. However, because the bar’s parking lot was full, he left his
vehicle, a silver Dodge Ram pickup, at a restaurant across the street. Romo and his
brother-in-law began drinking, while his brother served as the designated driver. They
drove in Romo’s brother’s truck to several bars, and Romo consumed approximately
nine beers over the course of the night. At the end of the night, Romo’s brother left
Romo back at his vehicle. Although it was 35 degrees outside, Romo insisted on
spending the night in his truck, instead of staying with his relatives or being driven
home, because he was afraid the truck would be vandalized. To ensure that Romo would
not drive drunk, his brother took Romo’s keys, planning to return them in the morning
when the three met up again for breakfast. Romo sat in his truck, leaned on his center
console, and fell asleep.
Approximately forty-five minutes later, Romo awoke to a tapping on his window.
Because Romo’s car had power windows and he did not have the keys, he opened the
door to see Officer Jeff Largen standing outside. Largen asked Romo what he was
doing, and Romo responded that he was “waiting this out.” Over the next ten minutes,
Largen asked Romo about his night, how he was doing, and whether and how much he
No. 12-1870 Romo v. Largen Page 3
had been drinking. Finally, Largen asked “do you know why I pulled you over?” Romo
responded by stating that the officer did not pull him over because he was not driving.
Largen asked Romo if he had passed a semi tanker by the railroad tracks, and Romo
responded that he had “been here for a while.” Romo also told Largen that his brother
had taken his keys some time before. At this point, Largen activated his microphone and
offered to “start this conversation over” because “the more you lie to me, the more
you’re likely to go to jail.” Largen then continued to accuse Romo of passing a semi
tanker at a railroad crossing and Romo repeatedly answered “I don’t know what you’re
talking about.”
After this line of questioning proved unfruitful, Largen asked Romo to step out
of the truck and administered sobriety tests. Romo responded by stating again that he
was not driving, saying “my keys aren’t even in the trunk.”1 Largen did not respond to
this statement. Largen took Romo through several sobriety tests and, after Romo failed,
Largen arrested Romo for operating a vehicle while intoxicated. They then had the
following exchange:
ROMO: . . . Why’d you pull me over?
OFFICER: For about the fifth time, because you passed that semi when
you were in the crossing area.
ROMO: I wasn’t driving.
OFFICER: Okay. That’s your story, sir. You can keep that story. My
story’s gonna be something different though, okay?
ROMO: I was sitting back there just relaxing.
After putting Romo in his car, Largen asked if Romo wanted his wallet or his phone
from the truck, and Romo declined. Largen then stated: “Okay. Do you have - - you
don’t have the keys on you. Are they in the vehicle?” Romo responded: “Umm, yeah.
I’ve been sitting there for a while.”
As Largen explained why he was arresting Romo, Romo continued to protest his
innocence. Largen responded by telling Romo to “[s]ave it for the Judge.” Romo
1
Although the written transcript of the encounter uses the word “trunk,” the last word of the
sentence is unclear on the tape and Romo more likely said “my keys aren’t even in the truck,” as Romo’s
vehicle was a pickup truck and did not have a trunk.
No. 12-1870 Romo v. Largen Page 4
promised to do so and asked Largen, who had been rifling through the car, if he had
found the keys. Largen responded that Romo had said that he did not want the car
locked, and Romo stated that he had given the keys to his brother over an hour
previously. Largen then waved his hand over the car’s hood without touching it and said
“I’m sure. That’s why the engine’s still warm to the touch.” Largen then drove Romo
to the jail. All charges against Romo were later dismissed.
Largen filed a police report that described the incident. In the police report,
Largen claimed to have seen in his rear-view mirror “a tan Dodge Ram pass a semi
tanker in the railroad crossing no passing zone.” He stated that he “turned on the truck
and then pulled behind it” and that the “truck had pulled into the parking lot behind Big
T and stopped.” The police report noted that Romo had denied driving and had stated
“I wasn’t driving my kids aren’t even in the car.” In the police report, Largen claimed
that he “placed [his] hand on the hood of the truck and it was warm” although since it
was “less than 35 degrees . . . the hood would have been cold [had Romo not recently
driven the truck.]” Largen would later clarify that he did not follow the Dodge Ram into
the Big T parking lot. Instead, he “pulled a U-turn and lost sight of it for a second,
couple seconds, whatever.” He then did another U-turn, to face the direction the Dodge
was going, but it was nowhere in sight. At that point, he decided that it likely headed
west down a different street, and turned down that street. It was only at that point that
he saw Romo’s vehicle.
Romo filed suit under 42 U.S.C. § 1983 and Michigan law. His complaint
included federal claims of false arrest and malicious prosecution. The complaint also
stated, without elaboration, that Largen “violated [Romo]’s right to equal protection.”
Romo also claimed that Largen committed the intentional torts of false arrest, false
imprisonment, and malicious prosecution. Largen claimed qualified and governmental
immunity and moved for summary judgment.
The district court determined that there were “at least three basic narratives
possible from what’s going on here.” The first is that Largen fabricated the background
story.
No. 12-1870 Romo v. Largen Page 5
That he never really did see a truck pass a semi on the right over the
railroad track no matter what color it was. That he simply happened
upon this truck in a parking lot, seen somebody sleeping in there, and
then the rest unfolds into the arrest, and that he made up the whole story.
...
In that case, the district court noted that “a reasonable fact-finder could conclude no
reasonable officer, mistaken or otherwise, could conclude there’s probable cause on that.
And that’s, I think, on a record like this, enough to send the case to the jury.” The
district court later noted that “a jury conceivably could discount” Largen’s story.
The second possible narrative is that Largen’s story, including the warm hood,
is entirely correct. In that case, the district court noted that probable cause may have
existed. However “that’s not a story [the court] can accept for purposes of evaluating
a defense motion for summary judgment.”
The court, like the parties, spent the most time on the third possible narrative.
In that version of the story, Largen “ma[d]e up the part about the warm hood and the
warm engine, but then he really did see a Dodge truck pull alongside the semi on the
railroad tracks, saw it in his rear-view mirror, . . . [but] didn’t have continuous contact,
[and] the colors [of the trucks] were different.” Id. “[E]ven if that’s the scenario,” the
court determined, “summary judgment would be inappropriate.”
The district court stated that while a jury may “ultimately agree with the officer
on the defense theory, . . . it’s one of those cases that should be the jury’s call as opposed
to my call” and denied summary judgment on the federal false-arrest claim. The court
also denied summary judgment on the state-law claims because they are similar, albeit
with a malice requirement that the court determined was fact oriented. Finally, the
district court denied summary judgment on the federal malicious-prosecution claim,
finding that bond conditions may be enough of an additional deprivation of liberty to
fulfill the requirements for that claim.
Largen now appeals. He argues that he is entitled to qualified immunity for his
“reasonable but mistaken belief that Romo was driving the pickup truck [he] observed
No. 12-1870 Romo v. Largen Page 6
commit a traffic violation.” He also argues that the state-law claims should have been
dismissed because he acted in good faith, that the federal malicious-prosecution claim
should have been dismissed because the charges against Romo were dismissed, and that
the equal-protection claim, which was not discussed below, should be dismissed.
While the parties argue extensively about the third scenario, the district court’s
treatment of the first scenario is sufficient for affirmance. In adjudicating this appeal,
we are required by the limitations on interlocutory appeals of qualified immunity denials
to accept the district court’s finding that a genuine dispute of material fact existed as to
whether Largen fabricated the whole or a part of his story about seeing a Dodge Ram
pickup pass a semi tanker, and we refuse to consider Largen’s factual disputations to the
contrary.2 In the Supreme Court’s words, “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.” Johnson v. Jones, 515 U.S. 304, 319–20 (1995); see also Kirby v. Duva,
530 F.3d 475, 481 (6th Cir. 2008) (“[T]his court may simply ignore defendants’ attempts
to dispute plaintiffs’ version of the facts, obviating the need to dismiss the entire appeal
for lack of jurisdiction.” (internal quotation marks omitted)).3 It follows that Largen’s
qualified-immunity defense clearly fails. No reasonable officer would believe that he
2
This limitation is not prudential, optional, or discretionary. It derives from the limited nature
of our interlocutory appellate jurisdiction under 28 U.S.C. § 1291 as interpreted in Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541 (1949). The limitation is in that sense “jurisdictional.” The fact that
at the end of this opinion we “affirm” rather than “dismiss” reflects that we are ruling on what is properly
before us, and says nothing about what is jurisdictionally not before us.
3
This court may reverse, notwithstanding Johnson v. Jones, “where the trial court’s determination
that a fact is subject to reasonable dispute is blatantly and demonstrably false.” Moldowan v. City of
Warren, 578 F.3d 351, 370 (6th Cir. 2009) (quoting Wysong v. City of Heath, 260 F. App’x 848, 853 (6th
Cir. 2008)). This principle arises from Scott v. Harris, 550 U.S. 372 (2007), which the Third Circuit
described as “the outer limit of the principle of Johnson v. Jones.” Blaylock v. City of Phil., 504 F.3d 405,
414 (3d Cir. 2007). This court has followed the Third Circuit’s analysis. See Bishop v. Hackel,
636 F.3d757, 769 (6th Cir. 2008); Carter v. City of Wyoming, 294 F. App’x 990, 992 (6th Cir. 2008);
Wysong, 260 F. App’x at 853. In Scott, the plaintiff’s version of the facts, which the district court
accepted, was “so utterly discredited by the record,” which included a video of the incident, “that no
reasonable jury could have believed him.” 550 U.S. at 380. Thus, in cases where “opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Id. If a district court ignores this instruction and accepts the blatantly contradicted facts, “a
court of appeals may say so, even on interlocutory review.” Wysong, 260 F. App’x at 853 (quoting
Blaylock, 504 F.3d at 414). This “represents a principled way to read Johnson and Scott together and to
correct the rare blatant and demonstrable error without allowing Scott to swallow Johnson.” Carter, 294
F. App’x at 992 (internal quotation marks omitted). This exception does not apply here.
No. 12-1870 Romo v. Largen Page 7
could constitutionally arrest a person found sleeping in a truck and take that person to
jail for drunk driving, particularly after the person offers a cogent explanation for
sleeping in the truck and shows that he does not even have the truck’s keys. We
therefore uphold the judgment of the district court denying summary judgment to Largen
on the basis of qualified immunity.
Relying on Scott v. Harris, 550 U.S. 372 (2007), and policy considerations, the
concurrence suggests a “reading” of Johnson under which defendants may generally
challenge on interlocutory appeal a district court’s determination that the summary
judgment standard has been met with respect to factual inferences (although, in concept
at least, not to facts that underlie such inferences). Such an approach is facially
contradicted by the Supreme Court’s instructions in Johnson to “take, as given, the facts
that the district court assumed when it denied summary judgment” and, when that is
unclear, to “determine what facts the district court . . . likely assumed.” Johnson,
515 U.S. at 319. The Court considered and dismissed the criticisms of this approach that
the concurrence raises. See id.Thus, to accept the reading of Johnson advocated by the concurrence, we would
have to read Scott to have foreshadowed the overruling of Johnson’s explicit holding.4
It may be proper in very clear situations for a lower court to anticipate the Supreme
Court’s overruling of one of its precedents.5 But such instances should be limited to the
most compelling of inferences from intervening cases. See United States v. Koch, 383
F.3d 436, 441-43 (6th Cir. 2004). Indeed, the Supreme Court—albeit in dictum—has
admonished the lower courts not readily to anticipate the overruling of its prior holdings.
See, e.g., Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).
In the words of Learned Hand, it is not “desirable for a lower court to embrace the
4
We do not mean to suggest that the concurrence is advocating that we disregard Johnson in
anticipation of its being overruled.
5
The Fourth Circuit in 1955, for instance, extended the Supreme Court’s rejection of the
constitutional separate-but-equal doctrine to public transportation cases—notwithstanding Plessy v.
Ferguson, 163 U.S. 537 (1896), a separate-but-equal public transportation case—based on the Supreme
Court’s then-recent rejection of the separate-but-equal doctrine in Brown v. Board of Education, 347 U.S.
483 (1954), which was decided in the distinct context of school desegregation. See Flemming v. S.C. Elec.
& Gas Co., 224 F.2d 752 (4th Cir. 1955).
No. 12-1870 Romo v. Largen Page 8
exhilarating opportunity of anticipating a doctrine which may be in the womb of time,
but whose birth is distant.” Spector Motor Serv. v Walsh, 139 F.2d 809, 823 (L. Hand,
J., dissenting) (2d Cir. 1943), vacated sub nom. Spector Motor Serv. v. McLaughlin, 323
U.S. 101 (1944). The instant appeal hardly presents a situation in which to disregard
such admonitions. The Scott opinion did not even mention the Johnson holding, and
Scott is easily limited as an exception for blatantly contradicted facts. It is up to the
Supreme Court to overrule Johnson, and Scott does not provide us a basis for
anticipating—much less predicting with compelling confidence—that the Supreme Court
will do so.
We next consider Largen’s appeal of the denial of governmental immunity on
Romo’s state-law claims. Viewing the facts in the light most favorable to Romo, Largen
did not have probable cause to arrest Romo for operating while intoxicated and a jury
could find that Largen acted with malice. The district court properly denied
governmental immunity to Largen. Largen did not have any evidence that Romo was
operating the truck. Largen found Romo intoxicated and sleeping in his truck. Since
people rarely sit in their vehicles without driving them, Largen could reasonably suspect
that Romo either had driven or was planning to drive while intoxicated. However,
Romo’s responses to Largen’s questioning should have dispelled those suspicions.
Romo explained that he was sleeping off a night of drinking, that he had not been
driving, and that he could not drive because he did not have the keys. Although Largen
claims that he heard Romo say that his kids, rather than his keys, were in the truck, he
later states “you don’t have the keys on you,” suggesting that he had heard Romo say he
did not have the keys at some point during the conversation. Romo also stated in his
deposition that he told Largen that his brother had taken his keys before Largen even
turned on the microphone. Romo had a reasonable explanation and Largen had no
inculpatory evidence.
Drunk driving is a serious danger to the public, and police are properly
suspicious of anyone sitting in his car drunk. However, they need more than presence
in the driver’s seat of a vehicle for probable cause. For example, in Nettles-Nickerson
No. 12-1870 Romo v. Largen Page 9
v. Free, the plaintiff had started her car, her brake lights had turned on, and she sat in it
while it was running. 687 F.3d 288, 291 (6th Cir. 2012). This court determined that in
such a situation, a police officer can reasonably believe that the plaintiff was operating
the car. The court noted that “nothing impeded Nettles-Nickerson’s ability to move the
car” and that she was “able, at any moment, to drive away.” Id. at 291–92. In contrast,
Romo could not possibly drive anywhere because he did not have the keys. The
Michigan Court of Appeals has found that a person operates a car once it is put into gear.
See City of Plymouth v. Longeway, 818 N.W.2d 419, 424 (Mich. Ct. App. 2012).
However, if the car is in “park” or not even running, and the person is asleep, then he is
not operating the car. See Michigan v. Burton, 651 N.W.2d 143, 151 (Mich. Ct. App.
2002); Michigan v. Andres, No. 258280, 2006 WL 448811 at *5 (Mich. Ct. App. Feb.
23, 2006). The only exception is if there is evidence that the person had driven the car
while intoxicated to the location where the officers found it. See Michigan v. Stephen,
685 N.W.2d 309, 313 (Mich. Ct. App. 2004). However, Largen had no evidence that
Romo had driven the car to the parking lot after drinking, and Romo explained that his
brother had driven him there and took his keys so that he could not drive.
To be entitled to governmental immunity under Michigan law, a lower-level
government official accused of an intentional tort must show that:
(a) The acts were undertaken during the course of employment
and the employee was acting, or reasonably believed that he was acting,
within the scope of his authority,
(b) the acts were undertaken in good faith, or were not undertaken
with malice, and
(c) the acts were discretionary, as opposed to ministerial.
Odom v. Wayne County, 760 N.W.2d 217, 228 (Mich. 2008). The only question here is
whether Largen was acting in good faith or with malice. A police officer is entitled to
governmental immunity “if he acted in good faith and honestly believed that he had
probable cause to arrest, even if he later learned that he was mistaken.” Id. at 229. This
test is subjective, not objective. Id. Largen argues that since the district court stated that
“the officer sounds like he believes what he’s talking about,” he is entitled to
No. 12-1870 Romo v. Largen Page 10
governmental immunity. However, the court also found that “a reasonable fact-finder
could still draw an inference of actual malice.” Moreover, if Largen lied on his police
report and to the prosecutor in order to obtain a prosecution of Romo, that is strong
evidence of malice. Accordingly, Largen is not entitled to governmental immunity on
Romo’s state-law claims.
On the other hand, Largen is entitled to summary judgment on Romo’s federal
malicious-prosecution and equal protection claims because Romo has stated that he is
no longer pursuing these claims. See Romo Br. at 38–39.
The district court’s denial of qualified immunity with respect to Romo’s federal
malicious-prosecution claim is reversed. The judgment of the district court is otherwise
affirmed.
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__________________________________________________
CONCURRING IN PART AND IN THE JUDGMENT
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SUTTON, J., concurring in part and concurring in the judgment. One aspect of
this case is easy: deciding whether Romo’s false-arrest claim should go to a jury. Once
we give Romo’s testimony all of the inferences to which it is entitled at summary
judgment, it is clear that a reasonable jury could grant him relief on this claim. Another
aspect of this case is not: deciding how to apply Johnson v. Jones, 515 U.S. 304 (1995),
and deciding whether we have jurisdiction over this interlocutory appeal. The majority
offers one way of applying Johnson to this appeal. I write separately to offer another
way of looking at it.
In Johnson, Houston Jones filed an excessive force claim against five policemen
who allegedly beat him. Three of the officers moved for summary judgment. Their
argument? “We didn’t do it,” an argument supported by the three officers’ affidavits but
in tension with Jones’s evidence-supported arguments. In a quintessential application
of Civil Rule 56, the district court held that the jury should resolve this material fact
dispute. The officers filed an appeal, insisting once more that they didn’t do it. “When
asked at oral argument if they could lose the factual dispute and still prevail, defendants’
lawyer answered no.” Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994). In a 6-
paragraph per curiam opinion, the Seventh Circuit dismissed the appeal for lack of
jurisdiction on the ground that “defendants may urge only legal issues on [interlocutory]
appeals.” Id. at 727.
The Supreme Court followed the Seventh Circuit’s approach and elaborated on
it. In the normal course, the Court explained, a denial of summary judgment is not final,
and appellate courts must wait for a district court to issue a final order before reviewing
the case. 515 U.S. at 309. That patience saves appellate resources, prevents delay and
keeps pretrial matters where they belong—with the district court. Id. at 317. But
qualified immunity is not a typical summary judgment defense; it is an immunity from
standing trial. Forcing an official who loses in the district court to wait for a jury verdict
No. 12-1870 Romo v. Largen Page 12
before appellate review would defeat an essential component of the defense. See id. at
315–17. The prospect of interlocutory qualified immunity appeals in this area thus pits
the desire to protect government employees from needless trials against the fear of
clogging appellate dockets with delay-creating and essentially frivolous appeals.
In a unanimous decision, Johnson tried to resolve that tension. A defendant may
immediately appeal a denial of qualified immunity “to the extent that it turns on an issue
of law,” such as whether the defendant violated a clearly established constitutional right.
Id. at 313 (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). But defendants who
merely want to argue evidentiary sufficiency have to wait until after trial. Id. District
courts have more experience sifting through convoluted factual records, the Court
explained, and asking the courts of appeals to take a second look at discovery documents
risks unduly postponing a plaintiff’s day in court. Id. at 316. And all of that time would
be wasted if, after affirming, the jury finds in favor of the plaintiff, and the defendant
appeals yet again. Id. at 316–17. In view of these concerns and others, Johnson told
appellate courts to limit their interlocutory resources to questions of law.
Keeping in mind that courts do not read judicial opinions like statutes, I submit
that there are two ways to read Johnson. One applies it only to prototypical “he said, she
said” fact disputes, in which the defendants (usually government employees) refuse to
accept the truth of what the plaintiffs (usually individual claimants) say happened.
When the appeal boils down to dueling accounts of what happened and when the
defendants insist on acknowledging on appeal only their accounts, the underlying basis
for an interlocutory appeal disappears.
The other applies the decision not just to whether the defendant officers accept
the plaintiff’s evidence-supported version of what happened but also to whether the
defendants accept the district court’s reading of the inferences from those facts: here,
whether Officer Largen lied about seeing a Dodge Ram on the road. Under that view
(and the majority’s view), when a district court determines that there is a “genuine issue
of fact” for trial by drawing an inference in favor of the plaintiff, the appellate court may
No. 12-1870 Romo v. Largen Page 13
not second-guess that inference, indeed lacks jurisdiction to do so. I favor the former
reading.
First, my proposed reading respects Scott v. Harris, 550 U.S. 372 (2007), which
post-dates Johnson. In Scott, Deputy Timothy Scott followed Victor Harris in a high-
speed chase. Worried that Harris’s reckless driving posed a threat to the public, Scott
ran Harris off the road, which caused a crash, which left Harris a quadriplegic. Harris
sued, alleging excessive force, and the parties introduced a videotape of the chase at
summary judgment. According to the district court, reasonable minds could disagree
about whether Harris posed a real risk, creating a fact issue for the jury. It wrote: “A
rational fact finder could find that a reasonable officer would not have believed that
because of his traffic offense, Harris posed an immediate threat to the safety of
others. . . . Harris did not use his vehicle in an aggressive manner. . . . A jury could also
find that Scott’s use of force—ramming the car while traveling at high speeds—was not
in proportion to the risk that Harris posed, and therefore was objectively unreasonable.”
Harris v. Coweta Cnty., Ga., No. CIVA 3:01CV 148 WBH, 2003 WL 25419527, at *5
(N.D. Ga. Sept. 25, 2003). The Eleventh Circuit affirmed on the merits and rejected the
“argument that we are without jurisdiction over this interlocutory appeal.” Harris v.
Coweta Cnty., Ga., 433 F.3d 807, 811 n.3 (11th Cir. 2005).
The Supreme Court reversed on the merits. “At the summary judgment stage,”
it started, “facts must be viewed in the light most favorable to the nonmoving party only
if there is a ‘genuine’ dispute as to those facts.” 550 U.S. at 380 (quoting Civil Rule
56(c)). Harris’s account—that he remained relatively in control—was “blatantly
contradicted by the record,” namely the videotape, which showed him driving
“shockingly fast,” “swerv[ing]” and “forc[ing] cars . . . to their respective shoulders to
avoid being hit.” Id. at 379–80. “[N]o reasonable jury could have believed” Harris’s
“version of events,” and, the Court held, neither the district court nor the Eleventh
Circuit should have accepted his version either. Id. at 380.
The details of Harris’s driving were not in dispute; the video laid those to rest.
What mattered were the inferences those details could support: Was Harris driving
No. 12-1870 Romo v. Largen Page 14
safely? Those inferences, Scott illustrates, remain subject to interlocutory review. A
contrary reading of Johnson—that in no event does an appellate court have jurisdiction
to say a district court drew the wrong inferences—cannot co-exist with Scott. This
reading of Scott also respects Behrens v. Pelletier, 516 U.S. 299 (1996), which cautions
that “[d]enial of summary judgment often includes a determination that there are
controverted issues of material fact, and Johnson surely does not mean that every such
denial of summary judgment is nonappealable.” Id. at 842.
Second, the only way to avoid this reading of the holdings of Johnson and Scott
is to create distinctions that are not driven by meaningful differences or that would be
difficult to implement in practice. One might for example limit Scott to videos (and
audio recordings), reasoning that appellate courts need not defer to the eyes (or ears) of
district courts when the relevant evidence comes in the form of a video or audio of the
encounter as opposed to dueling eyewitness accounts of the encounter disclosed in
depositions. But one need not be an expert in the senses to appreciate that the capacity
of appellate judges to identify untenable inferences in a district court’s assessment of a
video and an audio depiction of an event may apply just as often to their capacity to see
untenable inferences in a district court’s assessment of a deposition transcript. In both
cases, the district and appellate court judges are looking at the same thing.
Or one could say, as today’s majority does, that Scott trumps Johnson only when
the district court’s assessment of the inferences to draw is “blatantly contradicted by the
record.” Scott, 550 U.S. at 380. Only if the district court was really wrong would we
thus have authority to review the district court’s reading of the inferences. But the most
straightforward way to say that a district court did not make such a mistake is to say that
a reasonable jury could rule for the plaintiff on that record. That is the traditional
question we consider in reviewing qualified-immunity interlocutory appeals. If Johnson
is designed to protect appellate courts from record review, how does a “blatantly
contradicted by the record” standard help? It does not allow us to ignore depositions and
documents we would otherwise read, as those same items will be the source of any such
clear-error argument. That explains why the majority in this case must review that same
No. 12-1870 Romo v. Largen Page 15
sort of record evidence here—to assure itself that the district court did not blatantly
contradict the record. See Maj. Op. at 6–7 n.3. A defendant making a Scott claim and
a defendant raising a de novo challenge to the lower court’s inferences are asking us to
do much the same thing. Even if it turns out to be only the occasional case that meets
the Scott standard, I doubt it will be only the occasional lawyer who argues that the
district court badly misread the record. This reading of Johnson thus trades a long-
established direct approach to qualified-immunity appeals for a complicated indirect
approach that ultimately returns to the same question (or something very close to it).
And this reading implies that we have jurisdiction to reverse badly drawn inferences but
no jurisdiction to affirm less than badly drawn inferences—a new and strange version
of appellate power. What, in short, has been gained?
Third, much may be lost with a broad interpretation of Johnson, as it implicates
a jurisdictional inquiry that raises the stakes and complexities of the debate. Johnson
says that a defendant who loses a qualified immunity motion “may not appeal a district
court’s summary judgment order,” and that the court of appeals lacks “jurisdiction” over
such an appeal, “insofar as that order determines whether or not the pretrial record sets
forth a ‘genuine’ issue of fact for trial.” 515 U.S. at 309, 319–20. Since Johnson, it is
true, the Court “has endeavored . . . to bring some discipline to the use of the term
‘jurisdictional.’” Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (internal quotation
marks omitted); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006). But it is
difficult to see how Johnson does not implicate core subject matter jurisdiction.
Congress has granted courts of appeals “jurisdiction of appeals from all final decisions
of the district courts.” 28 U.S.C. § 1291. That speaks to subject matter jurisdiction. See
Bowles v. Russell, 551 U.S. 205, 215 (2007). In Cohen v. Beneficial Industries Loan
Corp., 337 U.S. 541 (1949), the Court construed § 1291 to give appellate courts
jurisdiction over some interlocutory—non-final—decisions. That too speaks to subject
matter jurisdiction. See Mohawk Indus. v. Carpenter, 558 U.S. 100, 106, 114 (2009).
And Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), construed Cohen to give appellate
courts jurisdiction over interlocutory appeals from a district court’s denial of a motion
for qualified immunity. That too speaks to subject matter jurisdiction. See Mohawk
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Indus., 558 U.S. at 106. It follows that Johnson raises an unyielding jurisdictional
inquiry, one that the courts of appeals must raise whether they like it or not, whether the
parties have raised it or not.
That is a tall order if courts embrace a broad interpretation of Johnson. It is
difficult to think of qualified immunity appeals that do not involve inference drawing by
the district courts, whether implied or explicit. And there are few days of oral argument
in the life of an appellate judge that do not involve at least one qualified immunity
interlocutory appeal. This case is a good example of the task that awaits us. Neither
party mentioned Johnson in its briefs. All that appears in the plaintiff’s brief on this
score is this stand-alone sentence: “In fact, given that the court ruled that these
credibility disputes created a factual issue regarding what actually happened that must
be determined by a jury, which directly affects the evidence allegedly supporting
probable cause, this should not even be an issue that is subject to an appeal. Gregory v.
City of Louisville, 744 [sic] F.3d 725 (6th Cir. 2006).” App’ee Br. at 30. If we followed
the normal rules for identifying error, we would say that the plaintiff forfeited any
Johnson argument. The argument is not identified (or embedded) in the issues presented
on appeal, it is undeveloped, and it leaves the reader guessing what the appellee means
to argue. See Johns v. Holder, 678 F.3d 404, 408–09 (6th Cir. 2012). To its credit, the
majority nonetheless takes on the Johnson issue, as indeed it must if it implicates our
jurisdiction. In view of the underlying interpretation of § 1291 implicated by all
interlocutory appeals and in view of the prohibition on “hypothetical” jurisdiction, Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998), that is the only path available
to us. Yet the majority’s approach pulls jurisdiction into many, if not most, qualified
immunity appeals, whereas my interpretation of Johnson—confining it to “I didn’t do
it” appeals—will create few jurisdictional disputes.
Fourth, a broad interpretation of Johnson not only requires us to police subject
matter jurisdiction in a great many cases, but it also requires us to do so by reviewing the
record in new and unusual ways. At first glance, the reader might think that separating
authority to review law-based appeals from authority to review fact-based appeals is
No. 12-1870 Romo v. Largen Page 17
easy. It is not. Yes, a qualified-immunity appeal based solely on what the Constitution
means or whether an interpretation of it was clearly established at a given point in time
raises purely legal issues. But the classic summary judgment question—could a
reasonable jury rule for the plaintiff on this record as construed in his favor?—also raises
a “legal” question, even though it is intertwined with the facts, which is why appellate
courts traditionally give fresh review to district court decisions in this area. Milligan v.
United States, 670 F.3d 686, 696 (6th Cir. 2012). The rub is that Johnson appears to
divide this last category into appealable and non-appealable decisions. I would construe
the decision as applying only when the defendant refuses to accept the truth of the
plaintiff’s evidence at summary judgment by maintaining for example that he didn’t do
it when the plaintiff produces evidence that he did. The majority would construe the
decision as applying whenever the defendant challenges the inferences drawn by the
district court in denying the summary judgment motion.
The majority’s approach creates two unpalatable options when it comes to
reviewing summary judgment decisions. The first is to comb the record to figure out the
inferences that the district court likely drew, then to defer to those assumed inferences.
Johnson, 515 U.S. at 319. If those inferences create a genuine issue of material fact, no
jurisdiction exists. The other option is to defer only to the inferences the district court
actually drew on the record, see, e.g., Lewis v. Tripp, 604 F.3d 1221, 1226 (10th Cir.
2010), and no jurisdiction exists if those inferences create a genuine issue of material
fact. While the latter approach has the virtue of being real rather than imagined, it
creates problems of its own. In my experience, district court judges generally do not
write summary judgment opinions in this way. Take this decision, which the judge
delivered orally, presumably because he placed a (legitimate) premium on resolving this
summary judgment motion promptly. The district court explained why the plaintiff
could win based on the court’s reading of the record, intermingling verbatim statements
from the various depositions, paraphrases from those depositions and inferences from
the depositions. That is not unusual. I indeed have not come across trial judges who
distinguish between facts and inferences or who explain the difference material fact by
material fact. That perhaps is because Johnson speaks to what appellate judges should
No. 12-1870 Romo v. Largen Page 18
do, not to what district court judges should do, and I doubt the point of Johnson was to
pile new tasks onto trial judges’ work loads or to tell them how to do their jobs. Much
simpler, I think, to let appellate courts do what they long have done by taking a fresh
look at the traditional (non-jurisdictional) summary judgment question: After giving the
non-movant (usually the plaintiff) the benefit of all reasonable inferences from the
record, does the case create a material triable issue of fact?
Fifth, efforts to work around these problems will create problems of their own.
Courts for example might construe Johnson as giving appellate judges the option of
dismissing appeals for lack of jurisdiction. Consistent with this approach, one court has
called the Johnson inquiry a “prudential” one, M.M.R.-Z. v. Puerto Rico, 528 F.3d 9, 13
(1st Cir. 2008). From what I can tell, that seems to be the approach the majority has
taken. After engaging in the Johnson inquiry and after noting that the appellant (Officer
Largen) has failed to accept the district court’s inferences from the record, the court
nonetheless “affirm[s]” and “uphold[s]” the district court’s decision rather than
dismissing this part of it for lack of jurisdiction. Maj. Op. at 7, 10. The majority insists
that Johnson remains a jurisdictional rule in our circuit, but offers an explanation for its
judgment with which I am unfamiliar: “The fact that at the end of this opinion we
‘affirm’ rather than ‘dismiss’ reflects that we are ruling on what is properly before us,
and says nothing about what is jurisdictionally not before us.” Id. at 6 n.2. As shown,
Cohen and Mitchell (and thus Johnson as well) interpret § 1291, which makes any
application of those decisions (whether narrowing or broadening) jurisdictional. The
baseline norm at any rate is that courts should resolve all disputes—including
appeals—that Congress authorizes them to resolve. Cohens v. Virginia, 6 Wheat. 264,
404 (1821). We should not lightly create exceptions to that “unflagging” obligation.
Deakins v. Monaghan, 484 U.S. 193, 203 (1988) (internal quotation marks omitted).
This cure, in short, seems worse than the disease.
Johnson itself acknowledged another way around these knotty issues, though it
is not one the Court seemed to endorse. It “assum[ed], for the sake of argument, that it
may sometimes be appropriate to exercise ‘pendent appellate jurisdiction’ over” a
No. 12-1870 Romo v. Largen Page 19
district court’s genuine-issue-of-material-fact decision. 515 U.S. at 318 (citing Swint v.
Chambers Cnty. Comm’n, 514 U.S. 35, 50–51 (1995)). An appeal that raised purely
legal questions under prong one of the qualified immunity inquiry (what does the
Constitution mean in this setting?) or prong two (was the right clearly established when
the officers acted?) thus would create appellate jurisdiction over these issues and pendent
appellate jurisdiction over any other issues raised by the district court’s decision. After
acknowledging this possibility, Johnson said it was “unlikely that Courts of Appeals”
would exercise pendent appellate jurisdiction “where the appealable issue appears
simply a means to lead the court to review the underlying factual matter.” Id. Fair
enough.
But in our circuit and, best I can tell, in most circuits, the test for pendent
appellate jurisdiction—whether the two issues are “inextricably intertwined,” Chambers
v. Ohio Dep’t of Human Servs., 145 F.3d 793, 797 (6th Cir. 1998) (citing Swint, 514 U.S.
at 49–50)—will not be demanding in the context of a qualified immunity appeal and thus
will not require gamesmanship to put all issues in front of the appellate court. Will it not
usually be the case, at prong one of the qualified immunity inquiry, that the meaning of
the Constitution and the underlying facts are inextricably intertwined? How could they
not be? They often implicate “mixed questions of law and fact,” Williams v. Mehra, 186
F.3d 685, 689 (6th Cir. 1999) (en banc), the epitome of inextricably intertwined law and
fact issues. They are called mixed, as opposed to segregated, questions of law and fact
for a reason. And even when that is not the case, how does one decide what the
Constitution means without regard to the facts? So too with the clearly established
inquiry, one that looks at whether the officers should have known that their fact pattern
did not permit them to act the way they did under then-existing law. Keep in mind,
moreover, that the question is whether a genuine issue of material fact exists. Even if
the genuine-issue question somehow is purely factual in nature, the issue of materiality
is not. Which facts are material to a constitutional claim will always be a legal question,
intertwining the genuine-issue fact question and the constitutional standard implicated
by the plaintiff’s claim. Cf. Livermore v. Lubelan, 476 F.3d 397, 407 (6th Cir. 2007).
Rather than engage in debates about this or that path to pendent appellate jurisdiction in
No. 12-1870 Romo v. Largen Page 20
today’s case, I would affirm on the traditional ground that, once the officer accepts the
truth of the plaintiff’s evidence-supported factual allegations, his appeal fails to rebut the
argument that a reasonable jury could rule against him on this record.
Why, moreover, should the officer willing to concede the truth of the plaintiff’s
evidence-supported version of the facts not get interlocutory review over the district
court’s genuine-issue-of-fact determination (itself a legal question), but the officer who
challenges that and the district court’s understanding of the meaning of the Constitution
gets interlocutory review? If the difference turns on efficiency, that is an unusual
explanation for a court-made jurisdictional rule and at all events not necessarily true.
The capacity of district courts and appellate courts to identify triable issues of material
fact based on the review of paper records strikes me as about equal—and as being done
by both just as frequently. And while interlocutory review delays a potential trial, the
appeal will potentially avoid unnecessary constitutional rulings, see Pearson v.
Callahan, 555 U.S. 223, 237 (2009), end the case (if the officer wins), often prompt a
settlement (if the officer loses) or often eliminate a later appeal (if the officer loses the
appeal and the jury trial). As to this last point, while the summary judgment record and
the jury record often will differ, they normally will differ in ways that make it more
difficult for an officer to win on appeal, as the appellate court will be asked to second
guess not just inferences that could be drawn from a paper record but inferences that may
be drawn from eyeballing the witnesses as well. In the end, if the district court is wrong
about permissible fact inferences at summary judgment, even if not “blatantly” wrong,
I do not understand why we should force these officers to undertake a trial.
Sixth, a broad reading of Johnson is in tension with related principles of qualified
immunity, jurisdiction and judicial administration. The courts are reluctant to make
appealability decisions in this area turn on the novelties of individual cases as opposed
to principles that cut across groups of traditional appeals. “Making appealability depend
upon . . . factor[s] particular to the case at hand[] would violate the principle . . . that
appealability determinations are made for classes of decisions not individual orders in
specific cases.” Behrens, 516 U.S. at 312. By making jurisdiction turn on the facts in
No. 12-1870 Romo v. Largen Page 21
every case, every case will become a class of an appealable or a non-appealable decision
unto itself. For related reasons, courts strive to separate jurisdictional inquiries from
merits-driven ones, Arbaugh, 546 U.S. at 510–11; see also Chafin v. Chafin, 133 S. Ct.
1017, 1024 (2013); Primax Recoveries, Inc. v. Gunter, 433 F.3d 515, 519 (6th Cir.
2006), an objective thoroughly undermined by a broad reading of Johnson.
Pearson v. Callahan suggests another way of looking at this problem. That case
overruled Saucier v. Katz, 533 U.S. 194 (2001), which required courts to resolve prong
one (the current meaning of the Constitution) of a qualified immunity defense before
moving to prong two (the clearly established meaning of the Constitution at the time of
the incident). One of the problems with that “rigid order of battle,” Pearson, 555 U.S.
at 234, was the frequency with which courts ignored it. Saucier was mandatory—but
not when the case was overly factbound, id. at 237, or when the Supreme Court granted
certiorari on a related issue, id. at 238, or when state law came into play, id. These
exceptions undermined, not proved, the rule, and any rule ought not to be honored in the
breach. A broad reading of Johnson, I fear, raises similar problems. It forbids record
review—but not when the district court made a blatant error or when the district court
was not explicit or when intent or mixed questions of law and fact come into play or
when pendent appellate jurisdiction is exercised.
The majority’s reading of Johnson also creates tension with Ashcroft v. Iqbal,
556 U.S. 662 (2009), which requires courts to determine whether the inferences a
plaintiff wants a jury to draw are “plausible.” Id. at 678. No doubt, it may be easier for
appellate courts to draw reasonable inferences from complaints than from summary
judgment records. But how strange to think that the distinction is jurisdictional—that
a court of appeals has jurisdiction to overturn a district court’s reading of the inferences
at the motion to dismiss stage but not at the summary judgment stage—a theory that may
have the incidental (and unintended) effect of encouraging defendants to file appeals at
each stage.
Seventh, a broad reading of Johnson creates other oddities with respect to mixed
questions of law and fact and questions of intent, which frequently come up in qualified
No. 12-1870 Romo v. Largen Page 22
immunity appeals. Some issues, such as the presence (or absence) of exigent
circumstances or the exculpatory (or not) nature of evidence, go to a jury. Ewolski v.
City of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002); Gregory v. City of Louisville, 444
F.3d 725, 744 (6th Cir. 2006). Other issues, such as the existence of probable cause or
deliberate indifference, may or may not go to a jury under our case law. See McKenna
v. Edgell, 617 F.3d 432, 441 (6th Cir. 2010); id. at 447–50 (Rogers, J., dissenting).
Compare Williams, 186 F.3d at 689; with Phillips v. Roane Cnty., 534 F.3d 531, 539 (6th
Cir. 2008). And issues of intent will often require courts to draw inferences. If a district
court says reasonable minds could differ on one of these questions, say exigent
circumstances, does that tie our hands and remove any jurisdiction over the appeal, even
when the underlying facts are undisputed? See Dixon v. Donald, 291 F. App’x 759, 762
(6th Cir. 2008) (“To the extent that Donald is arguing the existence of exigent
circumstances . . . he is raising genuine issues of material fact that Johnson prohibits us
from reviewing.”); Elliott v. Leavitt, 105 F.3d 174, 175 (4th Cir. 1997) (Wilkinson, J.,
concurring in the denial of rehearing en banc) (noting that, under a broad reading of
Johnson, “[a]ll plaintiffs need do to receive an automatic trial is simply assert, without
any evidence, that ‘the police are lying’”). If so, how does that interpretation advance
the efficiency concerns of Johnson? One would have thought that an earlier, rather than
a later, appellate ruling on the meaning of law in an accepted setting of facts would help
everyone, the parties and the district court included.
A broad reading of Johnson requires appellate courts to separate (unreviewable)
factual inferences from (reviewable) legal conclusions. This assignment calls to mind
the ill-starred distinction nineteenth century pleading rules drew between ultimate facts
(which plaintiffs could, indeed had to, plead) and conclusions of law (which they could
not). See Charles E. Clark, The Complaint in Code Pleading, 35 Yale L. J. 259, 259–60
(1926). An example illustrates the perplexities that await. Suppose that a district court
faced with an exigent circumstances case concludes that the plaintiff’s behavior did not
manifest a risk of “imminent destruction of evidence.” Brigham City v. Stuart, 547 U.S.
398, 403 (2006). Has the court drawn a factual inference from the plaintiff’s behavior?
Or has it reached a legal conclusion about the applicability of a particular justification
No. 12-1870 Romo v. Largen Page 23
for a warrantless search? Whatever the answer, does it make sense to hinge jurisdiction
on such a will-o’-the-wisp distinction?
Eighth, all of these distinctions and complexities increase the odds that appellate
jurisdiction will turn on the quality of the lawyer a party happens to hire. It is the rare
qualified-immunity appeal that does not implicate the meaning of the Constitution, and
it is the rare capable attorney who thus cannot frame an appeal that invokes that core
appellate jurisdiction. What happens as a result is that lawyers schooled in Johnson
know how to avoid its shoals (by raising a colorable legal question, which is not a high
bar, see Steel Co., 523 U.S. at 89) and lawyers unschooled in Johnson unwittingly
approach its shoals, requiring appellate courts to resolve a difficult, sometimes
excruciating, jurisdictional question, made more difficult by the flexible opt-in of
pendent appellate jurisdiction, instead of simply affirming on the merits because the
plaintiff’s claim implicates a triable issue of material fact. This case could have been
resolved by a three-page summary order to that exact effect. Once the officers
acknowledged that they had to accept the reasonable inferences from plaintiffs’ record-
supported evidence, as their attorney did at oral argument, appellate jurisdiction existed,
and we could have affirmed on that basis then and there.
On a related score, it is not unusual for lawyers to pay tribute to Johnson,
suggesting they are willing to accept the plaintiff’s version of the facts or the district
court’s inferences from those facts but nonetheless shading the recitation of those facts
in their client’s favor, whether at the briefing stage or at oral argument. See Estate of
Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005) (“[T]his court can ignore the
defendant’s attempts to dispute the facts and nonetheless resolve the legal issue,
obviating the need to dismiss the entire appeal for lack of jurisdiction.”). Lawyers will
be lawyers when it comes to this kind of thing, not because there is anything wrong with
them but because it is human nature to shade facts and inferences in favor of the
advocate’s position. We ought to be wary of a rule for processing a high percentage of
appeals that is a trap for some and easy to evade for others—and that requires a degree
of restraint that is difficult for most lawyers, indeed most human beings, to muster.
No. 12-1870 Romo v. Largen Page 24
Little is gained, and much is lost, and the difference from the party’s perspective often
will turn on nothing more than the acumen of the attorney he can afford to hire.
The option of pendent appellate jurisdiction and the ease with which most
lawyers can avoid Johnson jurisdictional problems might suggest that I should not be
troubled by the majority’s reading of it. That may be true in one sense. If ingenuity is
a key that invariably unlocks the gateway to appellate jurisdiction, that is no less true for
judges than for lawyers. But it does not flatter a legal rule that it is so often implicated
and so easily avoided, particularly when it goes to jurisdiction.
Nor does it seem helpful that, nearly twenty years after Johnson, every circuit in
the country has some decisions that adopt my reading of it and some that adopt the
majority’s. Start with our circuit. Some support the majority’s view. See Morrison v.
Bd. of Trs. of Green Twp., 583 F.3d 394, 404 (6th Cir. 2009); Phillips v. Roane Cnty.,
534 F.3d 531, 538 (6th Cir. 2008); Johnson v. Karnes, 398 F.3d 868, 876 (6th Cir. 2003).
Others support my view or variations on it. See Chappell v. City of Cleveland, 585 F.3d
901, 906 (6th Cir. 2009) (stating that a court of appeals can consider “legal errors as to
whether the factual disputes (a) are genuine and (b) concern material facts”); see also
Bishop v. Hackel, 636 F.3d 757, 769 (6th Cir. 2011); Leary v. Livingston Cnty., 528 F.3d
438, 441–42 (6th Cir. 2008).
The Seventh Circuit, affirmed in Johnson, seems to adopt a narrow interpretation
of Johnson. See Anderson v. Cornejo, 355 F.3d 1021, 1023 (7th Cir. 2004). But that is
not always the case. See Sain v. Wood, 512 F.3d 886, 891 (7th Cir. 2008). In every
other circuit, save possibly for the D.C. and Federal Circuits, there are opinions
supporting my view or otherwise involving appellate court review of inferences on the
merits. See Camilo-Robles v. Hoyos, 151 F.3d 1, 15 (1st Cir. 1998); Salim v. Proulx, 93
F.3d 86, 89–90 (2d Cir. 1996); Schieber v. City of Philadelphia, 320 F.3d 409, 420 (3d
Cir. 2003); Winfield v. Bass, 106 F.3d 525, 533 (4th Cir. 1997) (en banc); Brown v.
Callahan, 623 F.3d 249, 254–55 (5th Cir. 2010); Nelson v. Shuffman, 603 F.3d 439, 451
(8th Cir. 2010); Jeffers v. Gomez, 267 F.3d 895, 907–10 (9th Cir. 2001); Lewis v. Tripp,
No. 12-1870 Romo v. Largen Page 25
604 F.3d 1221, 1226–28 (10th Cir. 2010); Morton v. Kirkwood, 707 F.3d 1276, 1284
(11th Cir. 2013).
That would be a powerful point in my favor if not for the reality that there are
also decisions in every other circuit, save for the D.C. and Federal Circuits, that suggest
the opposite. See Diaz v. Martinez, 112 F.3d 1, 4–5 (1st Cir. 1997); Locurto v. Safir, 264
F.3d 154, 167 (2d Cir. 2001); Ziccardi v. City of Philadelphia, 288 F.3d 57, 61–62 (3d
Cir. 2002); Culosi v. Bullock, 596 F.3d 195, 201–02 (4th Cir. 2010); Smith v. Brenoettsy,
158 F.3d 908, 913 (5th Cir. 1998); Parks v. Pomeroy, 387 F.3d 949, 956 (8th Cir. 2004);
Chateaubriand v. Gaspard, 97 F.3d 1218, 1223 (9th Cir. 1996); Fogarty v. Gallegos,
523 F.3d 1147, 1154 (10th Cir. 2008); Ratliff v. DeKalb Cnty., 62 F.3d 338, 341 (11th
Cir. 1995). In view of these intra-circuit conflicts, it should not go unmentioned that
additional litigation over appealability, an inevitable outcome of any uncertainty over
the scope of it, adds to appellate work loads: one hundred and eighty degrees away from
Johnson’s goal. I would resolve that problem and the others mentioned above by
adopting a narrow interpretation of Johnson: Once the appellant accepts the record-
supported facts alleged by his opponent, the court of appeals has jurisdiction to give
fresh review to whether one party should win as a matter of law or whether the case
should go to a jury.
Ninth, today’s case confirms many of these complications and potential sources
of disagreement. Broad or narrow reading of Johnson? My view: narrow. The
majority’s view: broad. Is the issue forfeitable? All three of us seem to agree it is not.
Does Johnson apply to state-law claims? My view: if there is no interlocutory
jurisdiction over the federal claims, there is none over the state law claims. The
majority’s view: even when there is a Johnson defect with the federal claims, the court
of appeals has authority to review the state law claims and may view those claims
without applying the Johnson rule to them. Do we even need to get into this? All three
of us feel the need to do so—so much so that the majority claims my interpretation of
Johnson amounts to an anticipatory overruling of it. No doubt my reading of Johnson
will make it frequently inapplicable, but that is in order to salvage, not bury, the
No. 12-1870 Romo v. Largen Page 26
decision, the latter of which I suspect happens more often than not when busy appellate
courts confront burgeoning appellate dockets. Does Johnson impose a jurisdictional
or claim-processing inquiry? My view: jurisdictional. The majority’s view:
jurisdictional—except that it affirms rather than dismisses for lack of jurisdiction.
A narrow reading of Johnson eliminates all of these sources of disagreement, and
I would prefer to adopt it here.