Colston v. Barnhart , 130 F.3d 96 ( 1998 )

Revised August 25, 1998
UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 96-40634
_____________________________________
LORENZO COLSTON,
Plaintiff-Appellee,
and
YOLANDA MICHELLE COLSTON,
Individually and as Next Friend of
Lauren Colston and Quinton Colston, Minor Children
Intervenors Plaintiff-Appellees,
VERSUS
BRYAN BARNHART, Texas Department of Public Safety Officer; et al,
Defendants,
BRYAN BARNHART,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
______________________________________________________
July 14, 1998
ON APPLICATION FOR REHEARING EN BANC
(Opinion November 19, 1997, 5th Cir. 1997 ___F.3d___)
Before KING, DAVIS and DeMOSS, Circuit Judges.
DAVIS, Circuit Judge:
The court having been polled at the request of one of the
members of the court and a majority of the judges who are in
regular active service not having voted in favor (Fed. R. App. P.
and 5th Cir. R. 35), the Application for Rehearing En Banc is
DENIED. Colston’s Petition for Rehearing is also DENIED. We take
this opportunity, however, to expand upon our previous discussion
concerning our exercise of jurisdiction over this appeal.
In Johnson v. Jones, 515 U.S. 304 (1995), and Behrens v.
Pelletier, 116 S. Ct. 834 (1996), the Supreme Court recently
addressed the appealability of orders denying summary judgment on
the basis of qualified immunity. In Johnson, the Court held that
a defendant may not appeal such an order insofar as that order
determines whether or not the summary judgment record sets forth a
“genuine” issue of fact for trial. 515 U.S. at 319-20. In
Behrens, the respondent argued that an appeal of the district
court’s denial of summary judgment was not available under Johnson
because the district court had concluded that “[m]aterial issues of
fact remain[ed].” 116 S. Ct. at 842 (second alteration added).
The Court was quick to point out, however, that the respondent had
misread Johnson, observing that the denial of summary judgment
often includes a determination that there are controverted issues
of material fact and that “Johnson surely does not mean that every
such denial of summary judgment is nonappealable.” Id. Rather,
the Court explained, “Johnson held, simply, that determinations of
evidentiary sufficiency at summary judgment are not immediately
appealable merely because they arise in a qualified-immunity
case[.]” Id. The Court then held that “Johnson permits a
defendant to claim on appeal that all of the conduct which the
district court deemed sufficiently supported for purposes of
summary judgment” was objectively reasonable, and further
2
instructed that where the district court has not identified the
particular charged conduct that it deemed adequately supported,
“Johnson recognizes that under such circumstances ‘a court of
appeals may have to undertake a cumbersome review of the record to
determine what facts the district court, in the light most
favorable to the nonmoving party, likely assumed.’” Id. (quoting
Johnson, 515 U.S. at 319).
We believe that the key to understanding Johnson and Behrens
rests on the recognition that when a district court denies a motion
for summary judgment on the ground that “genuine issues of material
fact remain,” the court has made two distinct legal conclusions.
First, the court has concluded that the issues of fact in question
are genuine, i.e., the evidence is sufficient to permit a
reasonable factfinder to return a verdict for the nonmoving party.
See Ginsberg 1985 Real Estate Partnership v. Cadle Co., 39 F.3d
528, 531 (5th Cir. 1994) (defining “genuineness”). Second, the
court has concluded that the issues of fact are material, i.e.,
resolution of the issues might affect the outcome of the suit under
governing law. See id. (defining “materiality”).
Johnson makes clear that an appellate court may not review a
district court’s determination that the issues of fact in question
are genuine. As the Court explained in Behrens, “determinations of
evidentiary sufficiency at summary judgment are not immediately
appealable merely because they happen to arise in a qualified-
immunity case; if what is at issue in the sufficiency determination
is nothing more than whether the evidence could support a finding
3
that particular conduct occurred, the question decided is not truly
‘separable’ from the plaintiff’s claim, and hence there is no
‘final decision’ under Cohen and Mitchell.”1 116 S. Ct. at 842.
Behrens, on the other hand, makes clear that an appellate court is
free to review a district court’s determination that the issues of
fact in question are material.
By way of illustration, take, for example, a § 1983 case where
the plaintiff alleges that the defendant police officer shot him
and the defendant alleges that he merely beat the plaintiff with
his baton. The district court denies the defendant’s motion for
summary judgment on the ground that a genuine issue of material
fact exists as to what type of weapon was involved. The defendant
might argue on appeal that the district court erred in two
respects. First, he might argue that the district court
erroneously concluded that a genuine issue of fact exists, i.e.,
that the plaintiff presented insufficient evidence from which a
reasonable juror could conclude that the defendant shot him rather
than merely hit him with a baton. Under Johnson, the appellate
court could not consider this argument on interlocutory appeal.
Second, the defendant might argue that the district court
1
In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949), the Court held that orders “which finally determine
claims of right separable from, and collateral to, rights asserted
in [an] action, too important to be denied review and too
independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated,” are
“final decisions” under 28 U.S.C. § 1291. In Mitchell v. Forsyth,
472 U.S. 511, 528 (1985), the Court held that a district court’s
order denying a defendant’s motion for summary judgment on the
basis of qualified immunity, to the extent it turns on an issue of
law, is appealable under Cohen.
4
erroneously concluded that a material issue of fact exists, i.e.,
that regardless of whether he shot the plaintiff or hit him with a
baton his actions did not constitute excessive force. Under
Behrens, the appellate court could consider this argument on
interlocutory appeal.
When the district court denies a motion for summary judgment
and merely states that “genuine issues of material fact remain”
without identifying those issues, application of the
Johnson/Behrens rule becomes significantly more problematic. On
interlocutory appeal, the defendant will argue that the factual
issues the district court has found in dispute are immaterial. In
doing so, the defendant will doubtless set forth a factual scenario
that he claims is the scenario supported by the summary judgment
evidence viewed in the light most favorable to the plaintiff. He
will then proceed to argue that, even under this factual scenario,
he is entitled to qualified immunity. Without a statement from the
district court as to which particular issues of fact it found in
dispute, however, it will be impossible for the appellate court to
determine whether the defendant’s version of the facts viewed in
the light most favorable to the plaintiff mirrors the district
court’s version of the facts viewed in the light most favorable to
the plaintiff. If the appellate court cannot make this
determination, then it will be unable to conclude whether the
defendant is properly challenging the materiality of the factual
issues the district court determined to be in dispute or whether
the defendant is in effect improperly challenging the genuineness
5
of those issues. Only if the defendant is challenging the former
will the appellate court have jurisdiction over the defendant’s
appeal. Accordingly, the Supreme Court has instructed that under
such circumstances “the court of appeals may have to undertake a
cumbersome review of the record to determine what facts the
district court, in the light most favorable to the nonmoving party,
likely assumed.” Behrens, 116 S. Ct. at 842.
In other words, where the district court does not identify
those factual issues as to which it believes genuine disputes
remain, an appellate court is permitted to go behind the district
court’s determination and conduct an analysis of the summary
judgment record to determine what issues of fact the district court
probably considered genuine. The appellate court is permitted to
do so in order to ensure that the defendant’s right to an immediate
appeal on the issue of materiality is not defeated solely on
account of the district court’s failure to articulate its reasons
for denying summary judgment.
In this case, the district court in denying summary judgment
did more than state that “genuine issues of material fact remain.”
To wit, the district court stated that it found genuine issues of
fact remained as to “what information Trooper Barnhart possessed
immediately prior to and at the moment he fired the three shots at
[Colston.]”2 Although the court’s statement certainly narrowed the
2
The district court also stated that it found that genuine
issues of fact remained as to “whether Officer Barnhart had a
reasonable belief of danger from the fleeing [Colston] which would
justify the use of deadly force in self-defense.” The district
court’s statement, however, merely recasts the ultimate
6
field of facts that it might conceivably have found to be at issue,
it still lacked sufficient specificity to permit us to determine
whether we had jurisdiction over Barnhart’s appeal and whether the
district court may have concluded that there were genuine disputes
as to facts that were actually immaterial.3 By contrast, if the
district court had made a more specific statement such as “summary
judgment is denied because a genuine issue of fact exists as to
whether it would have appeared to a reasonable officer in
Barnhart’s position that Colston was running in the direction of
the patrol car,” we would have been able to make these
determinations. We believe it unwise to attempt to articulate a
test for the degree of specificity with which a district court must
identify genuine issues of fact for these purposes. It must depend
on the district court’s explanation of the nature of the factual
dispute in light of the summary judgment evidence in each
determination in this case -- whether Barnhart’s behavior was
objectively reasonable under the Fourth Amendment. That
determination is a question of law. See United States v. Wilson,
36 F.3d 1298, 1303 (5th Cir. 1993); United States v. Rich, 992 F.2d
502, 505 (5th Cir. 1993).
3
For instance, the district court might have concluded
that there was a genuine issue of fact as to whether it would have
appeared to a reasonable officer in Barnhart’s position that
Colston had seriously injured the other officer on the scene, thus
justifying the use of deadly force. See Tennessee v. Garner, 471
U.S. 1, 11 (1985) (use of deadly force to prevent escape
justifiable where officer has probable cause to believe suspect has
committed crime involving the infliction of serious physical harm).
If the undisputed facts showed that Colston was threatening
Barnhart with serious bodily harm, thus justifying the use of
deadly force, then it would be immaterial whether it would have
appeared to a reasonable officer in Barnhart’s position that
Colston had seriously injured the other officer on the scene. See
id. (use of deadly force to prevent escape justifiable where
suspect threatens officer with serious physical harm).
7
particular case. In this case the district court’s statement was
not sufficiently specific. This lack of specificity required us to
undertake a review of the record to determine whether we had
jurisdiction over Barnhart’s appeal. As our majority opinion
reflects, we conducted this review, and because we determined that
Barnhart’s version of the facts mirrored the version of the facts
that we determined the district court likely assumed, we concluded
that Barnhart was properly challenging the materiality of the
factual issues the district court believed in dispute and that we
therefore possessed jurisdiction over his appeal. On the merits,
we concluded that Barnhart was entitled to qualified immunity.
ENDRECORD
8
DeMOSS, Circuit Judge, dissenting from order on application for
rehearing en banc.
While the majority is correct in stating that “a majority of
the judges who are in regular active service [have not] voted in
favor” of rehearing en banc, Order on Reh’g, supra, at 1, it is
more accurate and informative to state that the Court divided
equally, eight to eight, on the motion for rehearing en banc. That
tie vote is reflective of the difficulty which the judges of this
Court have in reading and interpreting the decisions of the Supreme
Court in Johnson v. Jones, 515 U.S. 304, 115 S. Ct. 2151 (1995),
and Behrens v. Pelletier, 516 U.S. 299, 116 S. Ct. 834 (1996), as
they speak to the core question involved in this appeal: do we have
appellate jurisdiction to review the district court’s denial of
summary judgment sought on the grounds of qualified immunity?
This case presents serious issues concerning our appellate
jurisdiction in cases involving the denial of summary judgment on
the grounds of qualified immunity. I express the following views
in the hopes that they may help to attract the Supreme Court’s
attention to the increasingly complex panorama of doctrine and
dissent that has evolved as the courts of appeals have struggled to
reconcile the holdings of Johnson and Behrens.
In light of the tie vote on whether to reconsider this case en
banc, the panel opinion published at 130 F.3d 96 still stands as
the opinion of this Court. I write now to expand on the dissent
9
which I filed in the panel opinion, just as the majority expands on
its original majority opinion. In Part I, I elaborate on the
reasons which I first mentioned in my panel dissent as to why this
Court does not have appellate jurisdiction over this controversy.
In Part II, I respond to the new theory proposed by the majority in
this order on rehearing as to how our Court does have appellate
jurisdiction. Finally, in Part III, I explain how the majority’s
approach to the problem presented in this case is at odds with the
Supreme Court’s guidance regarding the competing policies behind
the availability of both a remedy for deprivations of
constitutional rights under the color of state law and a qualified
immunity for government officials who have violated citizens’
rights in the course of executing their official duties.
I.
A. Our appellate jurisdiction to review “final decisions,” 28
U.S.C. § 1291, does not encompass collateral orders to the
extent that they implicate the substantive merits of a
complaint.
The original panel opinion reversed the district court’s
considered judgment that fact issues precluded summary judgment on
the merits; and it dismissed the case based on its appellate
determination that Trooper Bryan Barnhart acted in an “objectively
reasonable” fashion when he shot Lorenzo Colston twice in the back.
Appellate jurisdiction to make this judgment was, however, lacking.
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10
A straightforward application of the authorities relevant to
exercising interlocutory appellate jurisdiction reveals that we may
not review the objective reasonableness of Trooper Barnhart’s
conduct on appeal from the district court’s denial of his motion
for summary judgment. This is so primarily because applying that
standard for determining whether Colston’s Fourth Amendment rights
were violated, set forth in Graham v. Connor, 490 U.S. 386, 395,
109 S. Ct. 1865, 1871 (1989), is not, as Supreme Court precedent
requires, separable from the merits of the controversy.
1. The collateral-order doctrine governs the review of qualified-
immunity appeals from denial of summary judgment.
Appellate jurisdiction over interlocutory appeals from denials
of summary judgment based on qualified immunity rests on three
essential legal principles, as delineated by the Supreme Court in
Johnson. See Johnson, 515 U.S. at 309-13, 115 S. Ct. at 2154-56.
First, 28 U.S.C. § 1291, the only possible statutory basis for
appellate jursidiction in this case, provides that we may review
only “final decisions” of a district court. Second, courts use a
practical application of § 1291 to allow interlocutory review of
certain orders which are considered final only because they are
collateral to the core of the case. See Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 69 S. Ct. 1221 (1949). “To come within
the ‘small class’ of . . . Cohen, the order must [1] conclusively
determine the disputed question, [2] resolve an important issue
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11
completely separate from the merits of the action, and [3] be
effectively unreviewable on appeal from a final judgment.” Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,
144-45, 113 S. Ct. 684, 688 (1993) (quoting Coopers & Lybrand v.
Livesay, 437 U.S. 463, 468, 98 S. Ct. 2454, 2458 (1978) (footnote
omitted)) (internal quotation marks omitted, alterations in
original). Third, as an application of the collateral-order
doctrine, interlocutory appeals from the denial of summary judgment
have been permitted in the qualified-immunity context for the
purpose of resolving the abstract legal question of whether the
lawlessness of a defendant’s alleged acts had been clearly
established at the time of their commission. See Mitchell v.
Forsyth, 472 U.S. 511, 525, 105 S. Ct. 2806, 2814-15 (1985).
2. The collateral-order doctrine does not apply in this case
because the “objective reasonableness” of Trooper Barnhart’s
conduct is not separable from the merits of the controversy.
An interlocutory appeal from the denial of summary judgment in
the qualified-immunity context is simply an application of the
collateral-order doctrine. This much is clear from Johnson, in
which the Supreme Court found no appellate jurisdiction to review
the district court’s fact-based sufficiency-of-the-evidence
determination that the defendants were not entitled to summary
judgment based on qualified immunity. The Johnson Court
specifically distinguished its decision from the Court’s earlier
-12-
12
treatment of the clearly-established-law prong of qualified-
immunity analysis in Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct.
2806 (1985). See Johnson, 515 U.S. at 314, 115 S. Ct. at 2157.
Disputes over the application of the clearly-established-law prong
of the qualified-immunity inquiry are separable from the merits of
a controversy because “‘[a]n appellate court reviewing the denial
of the defendant’s claim of immunity need not consider the
correctness of the plaintiff’s version of the facts.’” Id. at 313,
115 S. Ct. at 2156 (quoting Mitchell, 472 U.S. at 528, 105 S. Ct.
at 2816) (alteration in original).4
Trooper Barnhart’s contention here on appeal -- that his
conduct was objectively reasonable and therefore Colston’s suit
should be dismissed -- is not reviewable precisely because it does
not, as the doctrine of collateral orders requires, “resolve an
important issue completely separate from the merits of the action.”
Puerto Rico Aqueduct, 506 U.S. at 144-45, 113 S. Ct. at 688;
Coopers & Lybrand, 437 U.S. at 468, 98 S. Ct. at 2458. Johnson
elaborated on the separability inquiry, noting that
The requirement that the matter be separate from
the merits of the action itself means that review
4
In the present case, there is no dispute over the
distinct and separate legal issue of whether the law had been
clearly established in this case. There is no doubt that Colston’s
constitutional right under the Fourth Amendment to be free from
Trooper Barnhart’s use of unreasonable and excessive force arising
out of this police stop was clearly established long before the
circumstances involved in this case occurred. The panel majority
opinion explicitly recognizes both that this constitutional right
was clearly established and that Colston appropriately alleged a
violation of his constitutional rights in this § 1983 action. See
Colston, 130 F.3d at 99.
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13
now is less likely to force the appellate court to
consider approximately the same (or a very similar)
matter more than once, and also seems less likely
to delay trial court proceedings (for, if the
matter is truly collateral, those proceedings might
continue while the appeal is pending).
Johnson, 515 U.S. at 311, 115 S. Ct. at 2155 (citing CHARLES ALAN
WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3911, at 333-34 (2d ed.
1992)) (emphasis in original).
Though the matter does not require elaborate exposition,
Trooper Barnhart’s argument that his conduct was objectively
reasonable plainly does not meet this standard. Rather than being
a separate, distinct, collateral issue, the objective
reasonableness of Trooper Barnhart’s actions is in fact the precise
issue that would have been presented to the jury if Colston’s suit
had gone to trial. Should there have been an eventual appeal from
a final judgment on the merits of Colston’s claims, our Court would
have been confronted with the exact same issue. And to top it all
off, in this case the true hallmark of a collateral order -- the
continuation of trial proceedings while the appeal progressed --
has not occurred. As is now apparent, it would have been a
complete waste of time for the district court and the court of
appeals to simultaneously adjudicate the objective reasonableness
of shooting Colston twice in the back as he fled the scene.
-14-
14
The panel majority does not contend, because they could not
possibly establish, that their review of the objective
reasonableness of Trooper Barnhart’s arrest technique is separable
from the merits of Colston’s complaint. That single factor is
completely determinative of the absence of appellate jurisdiction
over Trooper Barnhart’s appeal.
3. The panel majority’s approach impermissibly engages in case-
specific factual analysis to determine appealability.
As a final matter concerning the panel majority’s implicit
determination that the district court’s denial of summary judgment
was an appealable collateral order, I note that the panel
majority’s treatment of this issue is utterly inconsistent with the
yet another principle of the Cohen doctrine. Both Johnson and
Behrens acknowledge that courts “decide appealability for
categories of orders rather than rather than individual orders,”
Johnson, 115 S. Ct. at 2157 (citing Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 863, 114 S. Ct. 1992, 1993 (1994)
(syllabus)), and “‘[a]ppeal rights cannot depend on the facts of a
particular case,’” Behrens, 116 S. Ct. at 841 (quoting Carroll v.
United States, 354 U.S. 394, 405, 77 S. Ct. 1332, 1339 (1957), and
citing Digital Equip., 511 U.S. at 868, 114 S. Ct. at 1996).
“[T]he issue of appealability under § 1291 is to be determined for
the entire category to which a claim belongs, without regard to the
chance that the litigation at hand might be speeded, or a
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15
‘particular injustic[e]’ averted by a prompt appellate court
decision.” Digital Equip., 511 U.S. at 868, 114 S. Ct. at 1996
(quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 529, 108 S. Ct.
1945, 1953 (1988)) (alteration in original, internal citation
omitted).
The majority’s approach to determining the propriety of
interlocutory appellate jurisdiction violates this principle in
spectacular fashion. The panel admits that its approach required
it to “undertake a review of the record to determine whether we had
jurisdiction over Trooper Barnhart’s appeal.” Order on Reh’g,
supra., at 8. But what did the panel expect to find in the record
other than facts? “Appeal rights cannot depend on the facts of a
particular case.” Behrens, 116 S. Ct. at 841 (internal quotation
marks omitted, emphasis supplied).
The error of the panel opinion’s approach is evident. Neither
Johnson nor Behrens contemplates a “cumbersome review of the
record” for the threshold purpose of determining whether there is
appellate jurisdiction. It is, rather, only a suggestion for how
to proceed on determining whether the plaintiff alleged a violation
of then-clearly-established law after appellate jurisdiction has
already been determined.
To conclude, there is one, primary, eminently simple reason
why interlocutory appeal was unavailable to Trooper Barnhart. In
order for us to proceed under § 1291, there must be a final order.
In the absence of a final judgment, the elements of the collateral-
order doctrine must be satisfied to permit appeal under that
-16-
16
statute. One of those elements is separability of the appealed
order from the ultimate merits of the controversy, and that element
is simply not present in this case. Moreover, the panel majority
impermissibly tailors its jurisdictional analysis to the facts of
the case. The collateral-order doctrine cannot be stretched to
establish appellate jurisdiction in this case, and the appeal
should have been dismissed.
B. Behrens v. Pelletier does not create an exception to the
collateral-order doctrine’s separability requirement.
The above reasoning notwithstanding, the majority relies upon
language in Behrens to support its assumption of appellate
jurisdiction. Seven months after it decided Johnson, the Supreme
Court handed down its decision in Behrens. After disposing of the
primary issue in the case,5 the Court went on to address two
additional grounds upon which the respondent in that case argued
that interlocutory appeal was not available. The discussion of the
second of these two issues, which involved some elaboration on the
holding in Johnson, is the source of much of the confusion which
now exists in our Court and in other courts of appeals as to the
5
The Supreme Court granted certiorari in Behrens to
evaluate the Ninth Circuit’s rule that there can be only one
interlocutory appeal on the issue of qualified immunity. The Court
rejected that rule, holding that the mere fact that the public
official in Behrens had already appealed the trial court’s denial
of his motion to dismiss under FED. R. CIV. P. 12(b)(6) did not
preclude a further appeal when the trial court denied his motion
for summary judgment on the grounds of qualified immunity. See
Behrens, 116 S. Ct. at 840.
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17
impact and effect of Behrens on Johnson. See, e.g., Hart v.
O’Brien, 127 F.3d 424 (5th Cir. 1997); Elliott v. Leavitt, 99 F.3d
640 (4th Cir. 1996), reh’g en banc denied 7-5 with opinions, 105
F.3d 174 (4th Cir.), cert. denied, 117 S. Ct. 2512 (1997).
The relevant discussion in Behrens begins by identifying and
reaffirming the basic distinction that Johnson draws as to the
appealability of a district court’s decisions on “issues of law”
and the nonappealability of those decisions on “issues of fact.”
See Behrens, 516 U.S. at 838-39, 116 S. Ct. at 305-06; Johnson, 515
U.S. 313-18, 115 S. Ct. at 2156-58. Behrens confirms that
interlocutory appeal is not available when the trial court relies
upon the existence of genuine factual disputes to deny summary
judgment. See Behrens, 516 U.S. at 842, 116 S. Ct. at 313. Such
disputes, Behrens reasons, are not collateral orders under the
Cohen doctrine because they are not “truly separable” from the
plaintiff’s claim. See supra Part I.A.2. When, on the other hand,
the district court’s denial is based solely upon “an ‘abstract
issu[e] of law’ related to qualified immunity -- typically, the
issue whether the federal right allegedly infringed was ‘clearly
established,’” then the issue to be addressed on appeal is
sufficiently distinct from the plaintiff’s claim to support
interlocutory appeal. Id. (quoting Johnson, 515 U.S. at 317, 115
S. Ct. at 2158) (internal citations omitted, alterations in
original). On these points, Behrens and Johnson are in perfect
agreement.
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18
The confusion is created by the following passage from
Behrens:
Here the District Court’s denial of
petitioner’s summary-judgment motion necessarily
determined that certain conduct attributed to
petitioner (which was controverted) constituted a
violation of clearly established law. Johnson
permits petitioner to claim on appeal that all of
the conduct which the District Court deemed
sufficiently supported for purposes of summary
judgment met the Harlow [v. Fitzgerald, 457 U.S.
800, 102 S. Ct. 2727 (1982)] standard of “objective
legal reasonableness.” This argument was presented
by petitioner in the trial court, and there is no
apparent impediment to its being raised on appeal.
And while the District Court, in denying
petitioner’s summary-judgment motion, did not
identify the particular charged conduct that it
deemed adequately supported, Johnson recognizes
that under such circumstances “a court of appeals
may have to undertake a cumbersome review of the
record to determine what facts the district court,
in the light most favorable to the nonmoving party,
likely assumed.” Johnson, [515 U.S. at 319], 115
S. Ct., at 2159. That is the task now facing the
Court of Appeals in this case.
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19
Behrens, 516 U.S. at 313, 116 S. Ct. at 842.6
1. Behrens v. Pelletier refers only to determining “objective
legal reasonableness” for qualified-immunity purposes under
Harlow v. Fitzgerald -- not other semantically similar merits-
bound inquiries.
The second sentence of the above-quoted paragraph is where the
ambiguities and uncertainties first arise.7 The original panel
opinion applies this sentence as if it gives Trooper Barnhart, who
invoked qualified immunity, a license to seek interlocutory review
of the denial of his summary judgment motion on the ground that,
assuming the truth of whatever allegations Colston made, Trooper
6
The first sentence of this paragraph points out that by
denying summary judgment the trial court implicitly ruled that if
the conduct giving rise to the lawsuit was what was alleged in the
complaint, it violated clearly established law. This makes sense
because if a trial court were to determine that the pertinent law
was not clearly established at the time of the defendant’s conduct,
the trial court would grant the defendant’s motion for summary
judgment on qualified immunity, not deny it. See, e.g., Winfield
v. Bass, 106 F.3d 525, 529 (4th Cir. 1997) (en banc). That
inherent determination is immediately appealable even when, as in
Behrens, the district court may also have noted the existence of
nonappealable factual disputes. See, e.g., id. at 529-30.
7
I note that after generally tracking the language of
Johnson, this is where the Behrens opinion departs from previously-
familiar territory. The semantic switch from discussing the
typical qualified-immunity issue of “clearly established law” to a
hypothetical (in Behrens) issue of “objective legal reasonableness”
creates many of the problems that are now plaguing the courts of
appeals.
Neither the phrase “deemed sufficiently supported” nor the
phrase “objective legal reasonableness” appear anywhere in the
Johnson opinion. Moreover, Harlow is cited only once in Johnson.
See Johnson, 515 U.S. at 311, 115 S. Ct. at 2155 (citing Harlow,
457 U.S. at 818, 102 S. Ct. at 2738). Neither the portion of
Johnson that cites Harlow nor the portion of Harlow which is cited
in Johnson has anything to do with determining what the trial court
found or did not find in its order denying summary judgment.
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20
Barnhart’s conduct nevertheless met the Graham standard of being
objectively reasonable.
The majority erred when it construed Behrens in that manner.
Such a reading is not supported by Behrens, which refers to “the
Harlow standard of ‘objective legal reasonableness.’” Behrens, 516
U.S. at 313, 116 S. Ct. at 842. Despite the Harlow standard’s
semantic similarity to Graham’s “objectively reasonable” test, that
prong of Harlow’s qualified-immunity inquiry is different and
functionally distinct from the merits-bound Graham inquiry. The
construction in the original panel opinion thus distorts a single
isolated sentence to create a direct conflict with Johnson and with
the logical analysis and reasoning in Behrens itself.
a. The function of Harlow v. Fitzgerald’s “objective legal
reasonableness” qualified-immunity standard makes it a proper
subject for interlocutory review.
Proper application of the “objective legal reasonableness”
standard established in Harlow does not establish whether the
conduct in question violated the law per se. Harlow’s reference to
“objective legal reasonableness” speaks only to a facet of whether
the plaintiff alleged a violation of “clearly established statutory
or constitutional rights of which a reasonable person would have
known” at the time an action occurred. Harlow, 457 U.S. at 818,
102 S. Ct. at 2738. When the law was clearly established, Harlow
instructs that “the immunity defense ordinarily should fail, since
a reasonably competent public official should know the law
governing his conduct.” Id. at 818-19, 102 S. Ct. at 2738.
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If the summary-judgment proof is sufficient to raise a genuine
issue of material fact, a motion for summary judgment on the
grounds of qualified immunity should be denied and the matter
should be developed fully at trial.8 See FED. R. CIV. P. 56(c). The
primary task of an appellate court in an ordinary interlocutory
qualified-immunity appeal from the denial of a motion for summary
judgment is to address the abstract legal question of whether the
law under which the plaintiff seeks relief was clearly established
at the time of the official’s conduct. See, e.g., Mitchell, 472
U.S. at 528, 105 S. Ct. at 2815. If it was, the case should be
remanded and the injured citizen should be given the opportunity to
prove that the official’s conduct did in fact violate the law and
did in fact produce the injury.
It is possible, of course, that the injured citizen might not
prevail at trial. But if the law involved at the time of the
8
In this regard the Supreme Court also said:
By defining the limits of qualified
immunity essentially in objective
terms, we provide no license to
lawless conduct. The public
interest in deterrence of unlawful
conduct and in compensation of
victims remains protected by a test
that focuses on the objective legal
reasonableness of an official’s
acts. Where an official could be
expected to know that certain
conduct would violate statutory or
constitutional rights, he should be
made to hesitate; and a person who
suffers injury caused by such
conduct may have a cause of action.
Id. at 2739; see also Crawford-El v. Britton, 118 S. Ct. 1584, 1593
(1998).
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22
conduct was clear and if the injured citizen presents sufficient
proof at summary judgment to persuade the district court that a
jury verdict for the injured citizen could be sustained, then the
public official must bear the risk of trial just like any other
civil defendant. See generally infra Part III. The policy --
embodied by the judge-made qualified-immunity doctrine -- of
protecting public officials from frivolous claims based upon
ambiguous concepts of the law must under these circumstances yield
to another public policy -- dictated by Congress and embodied in 42
U.S.C. § 1983 -- of protecting citizens from damage and injury
caused by the conduct of public officials which violates clearly
established constitutional principles. Cf. Crawford-El v. Britton,
118 S. Ct. 1584, 1594-96 (1998).
b. The function of Graham v. Connor’s “objectively reasonable”
substantive excessive-force standard makes it an improper
subject for interlocutory review.
Instead of reading Johnson and Behrens in their proper
context, the majority misreads the Behrens reference to “the Harlow
standard of objective legal reasonableness” (which is closely
related to the determination of whether the law was “clearly
established” at any given time) to be interchangeable with the
“objectively reasonable” test established in Graham. The Graham
standard -- the proper test for evaluating the merits of Colston’s
claim9 -- is used to determine whether an officer’s conduct was
9
See Graham, 490 U.S. at 396-97, 109 S. Ct. at 1871-72.
Of course, in Colston’s case the proper application of the Graham
standard is informed by the Supreme Court’s observations about the
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23
“excessive” such that it would violate the Fourth Amendment’s
prohibition against unreasonable seizures, but not to decide
matters of qualified immunity.
This confusion was aptly demonstrated in several parts of the
original majority opinion. At one point, the majority asserted:
“We therefore have interlocutory jurisdiction to determine the
legal issue of whether Trooper Barnhart’s conduct was objectively
reasonable.” Colston, 130 F.3d at 98-99. In characterizing the
issue of “whether Barnhart’s conduct was objectively reasonable” as
a “legal issue” subject to interlocutory appeal, the majority cited
Mitchell, Johnson, and Behrens. See id. All of those cited cases
deal with the issue of qualified immunity; none of them address in
any way the question of whether, on the merits, a defendant
official’s conduct was “objectively reasonable.” Elsewhere, the
majority claimed:
In Graham v. Connor the Supreme Court explained
that the reasonableness inquiry in an excessive
force case is an objective one; evaluating the
officer’s conduct under the Fourth Amendment we
must balance the amount of force used against the
need for that force with reference to clearly
established law at the time of the conduct in
question.
Id. at 99 (internal citations omitted, emphasis supplied). But the
problem with this quotation is that the italicized phrase requiring
Fourth Amendment’s restrictions on the use of deadly force. See
generally Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694 (1985).
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reference to clearly-established law does not appear anywhere in
the text of Graham.10
The majority’s approach is mistaken not only because it
misreads Behrens, but more fundamentally because it results in the
core substantive issue in a case being reviewed as a collateral
order. As discussed supra, the Cohen doctrine’s separability
requirement forbids this result. The district court in this case
identified two genuine and material issues of fact related to the
objective reasonableness of Trooper Barnhart’s actions. These
factual issues do not preclude evaluating -- as plainly
contemplated by Behrens -- whether Trooper Barnhart’s actions
10
This is not surprising because Graham did not involve any
claim of qualified immunity at all, see Graham, 490 U.S. at 399
n.12, 109 S. Ct. at 1873 n.12, and the case was actually tried
before a jury in the district court. Rather, Graham concerned the
questions of which constitutional provision protects a citizen from
excessive force during arrest and how to define the criteria for
measuring whether the force used to effect a particular seizure was
reasonable or unreasonable under the Fourth Amendment. In this
latter regard the Supreme Court in Graham held:
Because “[t]he test of
reasonableness under the Fourth
Amendment is not capable of precise
definition or mechanical operation,”
its proper application requires
careful attention to the facts and
circumstances of each particular
case, including the severity of the
crime at issue, whether the suspect
poses an immediate threat to the
safety of the officers or others,
and whether he is actively resisting
arrest or attempting to evade arrest
by flight.
Graham, 490 U.S. at 396, 109 S. Ct. at 1872 (alterations in
original, internal citation omitted) (citing Garner, 471 U.S. at 8-
9, 105 S. Ct. at 1699-1700).
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25
satisfy the “Harlow standard of objective legal reasonableness,”
which is a legal test relating to the legal determination of
whether or not the law was clearly established at any given time.
But when the proper Supreme Court precedents are utilized, the
question of whether a police officer used excessive force in
arresting a citizen is a question which cannot be answered without
making factual determinations on the basis of the evidence and
testimony in the individual case. Which is as it should be. As is
suggested by the district court’s denial of summary judgment, the
factual record simply has not been sufficiently developed to permit
judgment as a matter of law. Consequently, the panel majority
erred in determining that our Court had interlocutory jurisdiction
to address the merits of the ultimate factual dispute as to whether
under all of the circumstances Trooper Barnhart’s use of deadly
force by shooting Colston twice in the back was or was not
excessive.
2. Behrens v. Pelletier refers to “a cumbersome review of the
record” for the sole purpose of establishing a universe of
facts used to answer abstract legal issues related to
qualified immunity -- not other merits-bound purposes.
Another stumbling block in the infamous Behrens passage is the
now-oft-quoted reference to circumstances, recognized by Johnson,
in which “a court of appeals may have to undertake a cumbersome
review of the record to determine what facts the district court, in
the light most favorable to the non-moving party, likely assumed.”
Behrens, 516 U.S. at 313, 116 S. Ct. at 842; Johnson, 515 U.S. at
319, 115 S. Ct. at 2159. An examination of the full context of
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this particular sentence from Johnson resolves any perceived
ambiguities between the language of Johnson and the language of
Behrens.
This Johnson sentence was prompted by, and was intended to
respond to, the claim that if a district court simply denies the
motion for summary judgment without explanation, an appellate court
would be unable to determine whether the district court’s decision
was based upon fact-based issues that may not be immediately
appealed or abstract legal issues that may be immediately appealed.
See Johnson, 515 U.S. at 319, 115 S. Ct. at 2159. The Court
rejected that claim, stating that the problem was not serious
enough to require a rule making fact-based determinations
appealable. See id. The Court then concluded that “[w]hen faced
with an argument that the district court mistakenly identified
clearly established law, the court of appeals can simply take, as
given, the facts that the district court assumed when it denied
summary judgment for that (purely legal) reason.” Id.
Thus Johnson, by its own terms, speaks of a “cumbersome review
of the record” only in circumstances in which (1) the district
court denied summary judgment without indicating its reasons for
doing so, (2) there is a “given set of facts,” in other words,
facts which the parties have stipulated or which are undisputed,
and (3) the appellate court is faced with a contention “that the
district court mistakenly identified clearly established law.”
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None of these circumstances existed in Johnson, and none exist here
in this case.11 See id.
The language used in Behrens was appropriate to the
circumstances involved in that case.12 The Supreme Court concluded
11
It is also important to note that both Johnson and
Colston’s complaint deal with the Fourth Amendment right to be free
from unreasonable seizures. In Behrens, on the other hand, the
plaintiff asserted that the conduct of the defendant violated his
right to procedural due process and deprived him of substantive due
process under “clearly established and Constitutionally protected
property and liberty rights . . . to specific employment and to
pursue his profession free from undue governmental influence.”
Behrens, 516 U.S. at 302, 116 S. Ct. at 837 (internal quotation
marks omitted). In Behrens, two of the three circumstances
required by Johnson were present: the trial court simply denied the
motion for summary judgment, and the defendant asserted that his
actions had not violated any “clearly established” right of the
respondent regarding his employment. See id. at 304, 116 S. Ct. at
838.
12
In Behrens, Pelletier complained that Behrens, acting in
his capacity as a supervisory agent for the Federal Home Loan Bank
Board, had written a letter disapproving Pioneer Savings and Loan
Association’s request for approval of the hiring of Pelletier as
its managing officer. Id. at 302, 116 S. Ct. at 836-37. As a
result of this letter, Pioneer asked Pelletier to resign and when
he refused, fired him. Three years later, Pelletier brought suit
in federal court, charging that Behrens’s action in writing the
letter had effectively discharged him from his post at Pioneer.
Pelletier claimed that his discharge, in summary fashion and
without notice or opportunity to be heard, violated his right to
procedural due process. Id. at 302, 116 S. Ct. at 837.
Thus, Behrens presented a serious question as to whether the
law was “clearly settled” at the time the letter was written in
1986, such that the author of such a letter could be personally
liable for the resulting discharge of respondent. Id. The trial
court denied Behrens’s summary judgment motion, implicitly finding
that if the facts alleged by Pelletier were established, there
could be a violation of clearly established law. Behrens appealed,
arguing that the law was not clearly established. Id. The court
of appeals rejected that argument, finding that it was not before
the court. Id. at 304, 116 S. Ct. at 838. On remand, the district
court again denied Behrens’s motion for summary judgment on
qualified immunity, this time with an “unadorned” statement that
material issues of fact precluded summary judgment. Id. When
Behrens tried to appeal again, the Ninth Circuit declined to
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that the issue of whether the law was “clearly established” needed
to be addressed13 -- a “legal issue” which Johnson recognized as
being typically appealable. See Johnson, 515 U.S. at 311, 115 S.
Ct. at 2155 (citing Mitchell, 472 U.S. at 530, 105 S. Ct. at 2817).
It is, therefore, inappropriate to conclude that Behrens in any way
overrides the Supreme Court’s clear statement of the law in
Johnson, or that Johnson should not control our disposition in this
case. The “cumbersome review of the record” contemplated by
Johnson and Behrens is conducted for the limited purpose of
establishing a set of facts (sufficiently supported by the evidence
for the purposes of summary judgment) that are then used to answer
the abstract legal question of whether the plaintiff has alleged a
violation of clearly-established law. Behrens authorizes nothing
more. It is therefore patent error for the panel majority in this
case to construe Behrens as an implicit exception to the strictures
of the collateral-order doctrine.
3. Thus, the panel majority fundamentally misapplied Behrens v.
Pelletier in assuming appellate jurisdiction to determine the
objective reasonableness of Trooper Barnhart’s actions.
In exercising appellate jurisdiction, the panel majority
misconstrued Behrens in two key respects. First, Behrens’s
address the issue because of its rule prohibiting more than one
appeal on qualified immunity issues. Id.
13
The Ninth Circuit’s opinion on remand from the Supreme
Court confirms that there was no basis for holding that Behrens’s
conduct deprived Pelletier of any clearly established liberty or
property interest in specific employment at the time of writing the
letter. See Behrens v. Pelletier, 130 F.3d 429 (9th Cir. 1997),
modified on reh’g, 145 F.3d 1084 (9th Cir. 1998).
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reference to the “Harlow standard of ‘objective legal
reasonableness,’” Behrens, 516 U.S. at 313, 116 S. Ct. at 842, must
be construed in a fashion consistent with Harlow itself. It cannot
be used to reach any other aspect of the case unrelated to
qualified immunity which the appellate court may wish to review.
There is no appellate jurisdiction to entertain an interlocutory
appeal that presents issues which are inextricably intertwined with
the merits of the plaintiff’s complaint, for to do so would violate
the collateral-order doctrine’s separability requirement. Second,
Behrens does not broadly authorize courts of appeals to conduct de
novo reviews of the record in interlocutory qualified-immunity
appeals. Instead, the “cumbersome review of the record”
contemplated by Johnson and Pelletier refers only to the limited
review required to decide the distinct legal question of whether
the conduct alleged by the plaintiff violated then-clearly-
established law.
Because the “objective reasonableness” of the force applied by
Trooper Barnhart to arrest Colston is not an issue separable from
the merits of Colston’s complaint, it is not separable from the
merits and is therefore not subject to interlocutory appeal. The
majority erred by applying Behrens to achieve a contrary result.
II.
The new theory proffered by the panel majority as to how this
Court has appellate jurisdiction is simple -- perhaps even
deceptively simple. It postulates that the decision of the
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30
district court to deny summary judgment because “a genuine issue of
material fact exists” involves two fundamental decisions by the
district court: (1) there is sufficient conflict in the factual
testimony that a jury could find that the force used by Trooper
Barnhart was excessive, or, that the force used by Trooper Barnhart
was reasonable; and (2) the issue of whether the force used was
excessive or unreasonable is a material issue in the case. The
first of these issues is obviously factual and the second issue is
essentially legal in nature. Therefore, according to the
majority’s expanded theory, when the district court ruled that “a
genuine issue of material fact exists,” it necessarily made a
“legal” ruling which, under the majority’s analysis of Johnson and
Behrens, authorizes us to exercise appellate jurisdiction.
I acknowledge that this theory is simple, but in my view it is
simply wrong.
The panel majority’s use of the genuineness-or-materiality
distinction is simply not a useful theory of appealability. The
trouble is that the analysis makes every denial of summary judgment
appealable. Such an interpretation of Behrens entirely swallows
the rule in Johnson, and is therefore unacceptable.
When ruling on a motion for summary judgment, a district court
must consider the materiality of the factual disputes before the
court. See FED. R. CIV. P. 56(c). If the district court concludes
that the only genuinely disputed facts are not material, the
district court would grant summary judgment, and that would be an
appealable final decision. But what happens when a motion for
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summary judgment is denied? According to the panel majority,
Behrens established that “an appellate court is free to review a
district court’s determination that the issues of fact in question
are material.” Order on Reh’g, supra, at 4. If that is the case,
every single denial of summary judgment is appealable because every
single denial of summary judgment embodies a “determination that
the issues of fact in question are material.” See FED. R. CIV.
P. 56(c). To reiterate, if the issues of fact were not material,
summary judgment would have been granted, not denied.
Obviously this is not what Behrens intended. The fact of the
matter is that Behrens does not say that “an appellate court is
free to review a district court’s determination that the issues of
fact in question are material,” a cold fact belied by the panel
majority’s failure to provide a citation to Behrens or any other
case to support this assertion. See Order on Reh’g, supra, at 4.
Quite to the contrary of the panel majority’s view, Behrens does
not give the courts of appeals carte blanche to investigate whether
or not the fact issues that precluded a grant of summary judgment
were material. What Behrens does say is that “summary judgment
determinations are appealable when they resolve a dispute
concerning an ‘abstract issu[e] of law’ relating to qualified
immunity -- typically, the issue whether the federal right
allegedly infringed was ‘clearly established.’” Behrens, 516 U.S.
at 313, 116 S. Ct. at 842 (emphasis and alterations in original,
internal citations omitted). The reference to the appealable
“abstract issu[e] of law” is an attributed quote from Johnson, an
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opinion which makes unmistakably clear that the separability of the
issue is an indispensable prerequisite to interlocutory appeal.
See Johnson, 515 U.S. at 310-11, 115 S. Ct. at 2155.
Thus, as fully discussed supra, the panel majority’s Johnson-
swallowing interpretation of Behrens does not withstand scrutiny.
No Supreme Court cases have been cited to support the primacy of
the genuineness-materiality distinction. That is because there are
none. The proper distinction as explained in both Johnson and
Behrens is between appealable legal determinations and
nonappealable determinations of evidence sufficiency. The partial
congruence that exists because genuineness relates to factual
disputes while materiality relates to the legal significance of
facts does not supplant the controlling dichotomy, which is between
law-based decisions and fact-based decisions. Moreover, the fact
that there is a dispute about materiality tells us absolutely
nothing about the separability of that legal dispute, which was the
key factor in the Johnson Court’s determination that the district
court’s resolutions about the sufficiency of the evidence for the
purposes of qualified immunity are inseparable from the merits and
therefore are not subject to interlocutory appeal. See id. at 313-
18, 115 S. Ct. at 2156-58. The Supreme Court has made it
abundantly clear that the appropriate focus in determining our
appellate jurisdiction in interlocutory qualified-immunity appeals
is the “appropriate interpretation of § 1291.” Johnson v. Fankell,
117 S. Ct. 1800, 1807 (1997). Genuineness and materiality are
merely incidental; they are not a controlling part of that picture.
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Instead of trying to understand the nuances that differentiate
Johnson and Behrens, the panel majority’s approach simply seeks to
articulate a theory to justify jurisdiction. Their approach, as
explained in the new opinion on denial of rehearing, ensures that
unless the district court satisfies an undefined and therefore
wholly arbitrary standard of specificity,14 there will always be
grounds for the appellate court to conduct a roving review of the
record to investigate possible grounds for appellate jurisdiction.
And, once that step has been taken, the grounds for exercising
appellate jurisdiction can be easily manufactured.15 The majority
14
I pause here to note not only that the district court
stated the grounds for denying summary judgment with all due
specificity for the purposes of our determining appellate
jurisdiction, but also that the panel majority knew full well what
factual disputes led the district court to this decision.
The district court’s Memorandum and Order stated that the
court was denying Trooper Barnhart’s motion for summary judgment
because it found “that issues of material fact exist which preclude
summary judgment.” The court further stated:
Among these factual disputes are
what information Trooper Barnhart
possessed immediately prior to and
at the moment he fired the three
shots at the fleeing suspect and
whether Officer Barnhart had a
reasonable belief of danger from the
fleeing suspect which would justify
the use of deadly force in self-
defense.
The majority actually contends that this statement “lacked
sufficient specificity to permit us to determine whether we had
jurisdiction over Barnhart’s appeal.” Order on Reh’g, supra, at 7.
15
This very case is a beautiful example. The majority
states in amazingly conclusory fashion:
[B]ecause we determined that
Barnhart’s version of the facts
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34
transforms Behrens’s reference to a “cumbersome review of the
record” into an invitation to review de novo the record in all
interlocutory qualified-immunity appeals. This is a transparent
device for creating appellate jurisdiction at the discretion of the
appellate court, and it is entirely inconsistent with the reasons
the Supreme Court gave for its decisions in Johnson and Behrens.
III.
Finally, I must register my fundamental disagreement with the
panel majority’s general approach to implementing the policies
which support qualified immunity. I support the application of
those important and necessary policies to the extent that we
maintain fidelity to the numerous Supreme Court opinions on the
subject. I cannot support, however, our Court’s steady development
of a reflexive habit of substituting appellate judgment for that of
the district courts on interlocutory matters in the name of
protecting public officials from the burdens of litigation. As the
Supreme Court has made abundantly plain, qualified immunity in and
mirrored the version of the facts
that we determined the district
court likely assumed, we concluded
that Barnhart was properly
challenging the materiality of the
factual issues the district court
believed in dispute and that we
therefore possessed jurisdiction
over this appeal.
Id. at 8. Considering the fact that the district court denied
summary judgment, the majority’s statement that “that Barnhart’s
version of the facts mirrored the version of the facts that we
determined the district court likely assumed” is simply incredible.
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of itself is a substantial concession to the needs of faithful and
efficient execution of public duties. It is not, therefore,
necessary or appropriate to contort ancillary legal doctrines (such
as the original panel opinion’s misapplication of the collateral-
order doctrine) for the purpose of terminating litigation early
when, in the judgment of the district court, genuine factual issues
remain that merit further consideration.
A. Qualified immunity is an important policy goal which already
embodies substantial deference to public officials.
The Supreme Court has recently revisited and reaffirmed the
policy goals which undergird the doctrine of qualified immunity.
The first of these goals is “a strong public interest in protecting
public officials from the costs associated with the defense of
damages actions.” Crawford-El, 118 S. Ct. at 1592-93; see Harlow,
457 U.S. at 814, 102 S. Ct. at 2736. In addition, we are concerned
that legal process not be used to manipulate public officials
through “allegations of subjective motivation [which] might have
been used to shield baseless lawsuits from summary judgment,” so we
apply an objective standard based on the state of the law at the
time of the alleged conduct Crawford-El, 118 S. Ct. at 1593; see
Harlow, 457 U.S. at 817-18, 102 S. Ct. at 2737-38. Last, we seek
to avoid “the unfairness of imposing liability on a defendant who
‘could not reasonably be expected to anticipate subsequent legal
developments, nor . . . fairly be said to “know” that the law
forbade conduct not previously identified as unlawful.’” Crawford-
El, 118 S. Ct. at 1593 (quoting Harlow, 457 U.S. at 818, 102 S. Ct.
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36
at 2738); see Scheuer v. Rhodes, 416 U.S. 232, 239-40, 94 S. Ct.
1683, 1688 (1974).
The parameters of the qualified-immunity defense have been
carefully laid out by the Supreme Court, and they represent the
full extent to which a court accommodate the above-mentioned policy
interests. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 421, 96 S.
Ct. 984, 990 (1976).
B. The substantial policy interest in adjudicating Colston’s
claims cannot be ignored.
Despite our real concern about the policy interests protected
by qualified immunity, we cannot forget that our fellow citizens
also have a legitimate interest in vindicating their rights as
provided by law. Congress has provided by statute that:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected,
any citizen of the United States or other person
within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity,
or other proper proceeding for redress . . . .
42 U.S.C. § 1983. Qualified immunity is intended to extinguish
some legitimate claims arising under § 1983 which are frivolous or
ambiguous in nature, and that is a recognized and accepted
consequence of applying the doctrine. But in a case where the
plaintiff has alleged a violation of his then-clearly-established
constitutional rights and claims serious and demonstrable damages
from the official’s conduct which was not objectively reasonable,
the plaintiff should be entitled to proceed to trial so long as the
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allegations are sufficiently supported by evidence to survive a
motion for summary judgment. “[I]t is not unfair to hold liable
the official who knows or should know he is acting outside the
law.” Butz v. Economou, 438 U.S. 478, 506, 98 S. Ct. 2894, 2911
(1978).
C. The majority erred by tipping the scales of justice in Trooper
Barnhart’s favor.
The primary lesson of the recently decided case of Crawford-El
v. Britton, 118 S. Ct. 1584 (1998), is that the courts of appeals
should not go beyond the basic qualified-immunity framework to
deprive plaintiffs of their "day in court." Crawford-El contains
a number of observations which should inform the way we proceed in
a case like this one. For example, the Supreme Court noted that
the “holding in Harlow, which related only to the scope of an
affirmative defense, provides no support for making any change in
the nature of the plaintiff’s burden of proving a constitutional
violation.” Crawford-El, 118 S. Ct. at 1592. The Supreme Court is
telling us that the policies that give rise to the affirmative
defense of qualified immunity do not stretch so far as to justify
stacking the deck against the substance of the plaintiff’s
underlying claims. The panel majority’s erroneous interpretation
in this litigation in Trooper Barnhart’s favor are functionally
indistinguishable from the D.C. Circuit’s now-disapproved practice
of requiring “‘clear and convincing evidence on the state-of-mind
issue at summary judgment.’” Id. at 1589 (quoting Crawford-El v.
Britton, 93 F.3d 813, 815 (D.C. Cir. 1996) (en banc)).
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The Supreme Court also strained to point out that there is no
reason for the courts of appeals to "deal under the table" in order
to impede lawsuits against public officials. The Court has
endorsed “firm application of the Federal Rules of Civil Procedure”
which “may lead to the prompt disposition of insubstantial claims,”
id., 118 S. Ct. at 1596 (internal quotation marks omitted), and
went to great lengths to detail procedural barriers that the
district courts should use to dispose of insubstantial claims, see
id. at 1596-98.
Perhaps most importantly, the Court reiterated that a claim
which may have merit should be heard unless the plaintiff fails to
survive a fair application of qualified-immunity analysis.
[Qualified immunity’s] rationale of fairness
does not provide any justification for the
imposition of special burdens on plaintiffs who
allege misconduct that was plainly unlawful when it
occurred. While there is obvious unfairness in
imposing liability -- indeed, even in compelling
the defendant to bear the burdens of discovery and
trial -- for engaging in conduct that was
objectively reasonable when it occurred, no such
unfairness can be attributed to holding one
accountable for actions that she knew, or should
have known, violated the constitutional rights of
the plaintiff. Harlow itself said as much: “If the
law was clearly established, the immunity defense
ordinarily should fail, since a reasonably
competent public official should know the law
governing his conduct.” Id., at 818-819; see also
Butz, 438 U.S. at 506 (“[I]t is not unfair to hold
liable the official who knows or should know he is
acting outside the law . . . .”).
Crawford-El, 118 S. Ct. at 1593.
If this case had proceeded as usual and gone to trial, it is
possible that Colston might left the courthouse with empty pockets.
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He was, however, entitled under the evidence available at summary
judgment to step to the bar and take his fair chances.
Colston’s claim was not insubstantial. The right which he
alleges was violated -- the right to be free from police brutality
-- is one of our civil rights which is of most vital concern to
significant portions of our population. The alleged violation of
his rights resulted in serious and permanent injuries. Colston has
alleged facts which would support a jury finding that Trooper
Barnhart improperly used deadly force to accomplish his seizure.
The law, as clarified in Crawford-El, is plain; our Court should
not have intervened when Trooper Barnhart’s motion for summary
judgment was denied on the basis that the facts were not
sufficiently established to justify summary judgment.
IV.
For the foregoing reasons, and with all due respect to my
colleagues, I dissent from the panel majority’s additional opinion
on rehearing, and I dissent from our Court’s denial of rehearing en
banc.
ENDRECORD
-40-
40
BENAVIDES, Circuit Judge, with whom POLITZ, Chief Judge, STEWART and PARKER, Circuit
Judges, dissenting from the denial of rehearing en banc:
The central issue in this qualified immunity case is the important question of the proper scope
of a court of appeals’ review of the summary judgment record in a case where a district court has
failed to identify the genuine issues of material fact precluding summary judgment. The Colston
majority asserts that a court of appeals may review de novo a district court’s determination that the
plaintiff’s evidence creates a genuine factual dispute in order to preserve a public official’s right to
an immediate appeal on the question of qualified immunity. After substituting its genuineness analysis
for that of the district court, the majority concludes that Barnhart is entitled to qualified immunity
because his effectively uncontested subjective account of the events preceding the shooting indicates
that he acted with objective legal reasonableness when he shot Colston twice in the back.
In contrast, I believe that the majority’s de novo review of the sufficiency of Colston’s
evidence conflicts with the Supreme Court’s decision in Johnson v. Jones, 115 S. Ct. 2151 (1995),
and the collateral order doctrine. The majority, moreover, could have respected the limits on this
court’s jurisdiction over interlocutory appeals and protected Barnhart’s right to an immediate appeal
by deciding the question of qualified immunity on the basis of the version of the facts contained in
Colston’s response to Barnhart’s motion for summary judgment or by remanding the case to the
district court for a complete statement of the genuine issues of material fact precluding summary
judgment. Had the majority adopted either of these alternatives to an independent review of the
summary judgment record, it would not have reversed the district court. I, therefore, respectfully
dissent from the denial of rehearing en banc.
I.
In its explanation of the basis for the court’s jurisdiction over Barnhart’s interlocutory appeal,
the Colston majority correctly interprets the Supreme Court’s decisions in Jones and Behrens v.
Pelletier, 116 S. Ct. 834 (1996), to permit this court to exercise jurisdiction over an interlocutory
appeal contending that the factual disput es identified by a district court in its order denying a
g:\opin\96-40151.dis
defendant’s motion for summary judgment on the basis of qualified immunity are immaterial to a
determination of whether a plaintiff’s constitutional rights were violated or whether a defendant’s
conduct was objectively reasonable in light of clearly established law.16 In other words, we may
consider on interlocutory appeal a defendant’s claim that when the facts, both disputed and
undisputed, are viewed in the light most favorable to the plaintiff, they demonstrate that the defendant
is entitled to qualified immunity. See Hart v. O’Brien, 127 F.3d 424, 455 (5th Cir. 1997) (Benavides,
J., dissenting). The majority also rightly recognizes that a court of appeals must adopt the district
court’s articulation of the genuinely disputed facts when determining whether these disputes are
material to a finding of qualified immunity.17 Finally, the majority properly concludes that when a
district court has “not identif[ied] those factual issues as to which it believes genuine disputes remain”
and a defendant is claiming on interlocutory appeal that the factual disputes in the case are immaterial
to a finding of qualified immunity, Jones and Behrens authorize us to review the summary judgment
record in order to identify “what issues of fact the district court probably considered genuine” when
denying the defendant’s motion for summary judgment so that we may in turn determine if those
disputes are material. This much is clear from the Supreme Court’s statement that under these
16
See Behrens, 116 S. Ct. at 842 (“Johnson permits [a defendant] to claim on appeal that
[the factual disputes identified by the district court are immaterial because] all of the conduct which
the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow
standard of `objective legal reasonableness.’”); Jones, 115 S. Ct. at 2159 (holding that a court of
appeals may review on interlocutory appeal a district court’s determination “that a given set of facts
violates clearly established law”); Collins v. Jordan, 110 F.3d 1363, 1370 (9th Cir. 1997) (“An
appellate court still has jurisdiction to consider a defendant’s assertion that the dispute of fact is not
material. Such a claim is of a different character from a claim that the [district] court’s findings are
not supported by the record. The claim of lack of materiality is solely one of law, and therefore is
reviewable on an interlocutory basis.”) (citations omitted); Dickerson v. McClellan, 101 F.3d 1151,
1157 (6th Cir. 1996) (noting that a court of appeals may “exercise interlocutory jurisdiction” over
an appeal from a denial of summary judgment in a qualified immunity case when “the factual disputes”
identified by the district court are “immaterial”).
17
See Behrens, 116 S. Ct. at 842 (noting that a court of appeals considers “the conduct which the
District Court deemed sufficiently supported for purposes of summary judgment” when deciding
materiality); Jones, 115 S. Ct. at 2159 (“When faced with the argument that the district court
mistakenly identified clearly established law, the court of appeals can simply take, as given, the facts
that the district court assumed when it denied summary judgment.”).
g:\opin\96-40151.dis 42
circumstances, a court of appeals “‘may have to undertake a cumbersome review of the record to
determine what facts the district court, in the light most favorable to the nonmoving party, likely
assumed’” to be sufficiently supported when it denied summary judgment. Behrens, 116 S. Ct. at 842
(quoting Jones, 115 S. Ct. at 2159).
II.
The Colston majority and I part company, however, when it describes the manner in which
we are to review the summary judgment record when identifying the factual disputes likely viewed
as genuine by the district court. According to the majority, Behrens permits a court of appeals to “go
behind” a district court’s determination that genuine issues of material fact preclude summary
judgment when we are evaluating whether t he unstated facts that the court “likely assumed” are
material to a finding of qualified immunity. Although the Colston majority is careful not to explain
what it means to “go behind” a district court’s determination and “conduct an analysis of the summary
judgment record,” its opinion illustrates that a court of appeals may disregard its obligation to
reco nstruct the version of the facts that best explains the district court’s decision to deny t e
h
defendant’s motion for summary judgment when going behind that determination. In fact, the
majority’s decision to “adopt Barnhart’s version of the facts” demonstrates that going behind a
district court’s determination entails conducting a de novo review of the district court’s finding that
the plaintiff’s evidence was sufficient to create a genuine issue of material fact. The majority’s
conception of the scope of our review of the summary judgment record in a case like Colston,
however, cannot be reconciled with the Supreme Court’s decision in Jones or the collateral order
doctrine.
The summary judgment record in Colston indicates that Barnhart and Colston provided
plausible and conflicting accounts of the tenor and significance of the events captured on film by the
camera mounted in Barnhart’s patrol car. According to Barnhart, for example, Colston’s effort to
stand up in the face of a command to get on the ground was an aggressive and threatening act.
Colston, on the other hand, draws attention to the fact that he was a young black man ordered to the
g:\opin\96-40151.dis 43
ground by a white police officer in connection with a traffic stop that occurred at night on an empty
highway. Colston explains that he lifted his leg in preparation to flee because he was noticeably
frightened by the officers and what he perceived to be their impending use of force.
The parties also offer conflicting accounts of the most critical point in the encounter: The
moment when Barnhart fired two shots into Col ston’s back. Barnhart contends that it was not
feasible for him to warn Colston before firing these shots because he “had to immediately decide
whether to shoot.” Id. at 100. According to Barnhart’s motion for summary judgment, he decided
to shoot because he was “dazed and disoriented” and he “perceived [Colston] to be in the process
of attacking him” or “hovering above” him.
The videotape, however, clearly shows that Colston was not in the process of attacking either
officer at the time he was shot twice in the back. Instead, as being shot in the back indicates, Colston
was running away. Colston contends that his observable demeanor indicated that he was in fact
fleeing at this point because he had been visibly frightened, had not placed himself in a position to
strike the officers after knocking them down, and had not attempted to disarm or strike the officers
while they were lying “dazed,” “limp,” and “motionless” on the ground. See Colston v. Barnhart,
130 F.3d 96, 99 (5th Cir. 1997). As for Barnhart’s suggestion that his dazed and disoriented state
contributed to his misperception that Colston was moving toward him, the record indicates that he
was nonetheless able to see Colston clearly enough to get “a good target acquisition” before firing.
Further, as Judge DeMoss stated in his dissent from the panel opinion, Barnhart’s account of the
extent of his incapacity may be more hyperbole than fact. See id. at 103 (DeMoss, J., dissenting).
Thus, to justify Barnhart’s decision to shoot Colston without warning on the basis of his possibly
unreasonable assumption that Colston was advancing upon him, the majority puts forth an explanation
of the shooting that Barnhart did not even raise in his motion for summary judgment: That when
Barnhart fired the final two shots, Colston was running toward the “patrol car, where Barnhart’s
shotgun was located” and was, presumably, accessible. Id. Of course, Barnhart did not raise this
g:\opin\96-40151.dis 44
justification for the shooting because it completely contradicts his admission in his motion for
summary judgment that he shot Colston because he perceived Colston to be moving toward him.
Even if Barnhart did in fact perceive Colston to be heading for the patrol car, there is no
evidence that Colston knew of the shotgun. In fact, we do not know whether the shotgun was loaded
or how readily Colston could have retrieved it from the police cruiser. Moreover, the shotgun could
not have been visible to Colston from the front of the patrol car because it was dark and the car lights
were shining in his eyes. Further, Colston had proceeded only “two steps . . . toward Barnhart’s
patrol car” when he was shot. Id. Under these circumstances, Colston suggests that Barnhart, even
if he was in fact concerned about Colston’s access to the shotgun, had ample time to issue a warning
before firing the last two shots.
Notwithstanding these conflicting versions of the events preceding shooting, the majority
states that it adopted Barnhart’s “version of the facts” because they “mirrored the version of the facts
that we determined the district court likely assumed” when denying Barnhart’s motion for summary
judgment. Why the district court would have adopted a version of the events not argued by Barnhart,
only to deny his motion for summary judgment, is unclear. More importantly, there can be no
question that when the district court denied Barnhart ’s motion for summary judgment because
“genuine issues of fact [exist] as to `what information Trooper Barnhart possessed immediately prior
to and at the moment he fired the three shots at [Colston],’” it necessarily found that Colston’s
version of the encounter conflicted with Barnhart’s and that Colston’s account was sufficiently
supported by the summary judgment evidence. Thus, by ignoring Colston’s account of the encounter
and replacing it with the version of the events preceding the shooting that is most favorable to
Barnhart’s qualified immunity claim, the majority, contrary to the Supreme Court’s instruction in
Jones, in fact rejected the version of the “facts the district court, in the light most favorable to the
nonmoving party, likely assumed” when denying Barnhart’s motion for summary judgment. 115 S.
Ct. at 2159.
g:\opin\96-40151.dis 45
Moreover, the process by which the majority inexplicably concluded that the district court
adopted Barnhart’s version of the facts when denying his motion for summary judgment also cannot
be squared with the Supreme Court’s decision in Jones or the collateral order doctrine. In Jones, the
Court unequivocally held 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” because the collateral order doctrine
precludes jurisdiction over an interlocutory appeal raising a question, such as “evidence sufficiency”
that is not “significantly different from the fact-related legal issues that likely underlie [a] plaintiff’s
claim on the merits.” Id. at 2157, 2159. Nonetheless, in order to adopt the version of the events
preceding the shooting that the majority believes Barnhart should have identified as the factual basis
for his materiality challenge, it had to go beyond the version of events contained in Barnhart’s motion
for summary judgment, substitute its own genuineness analysis for that of the district court, and
conclude that Colston produced insufficient evidence calling into question the objective
reasonableness of Barnhart’s decision to shoot him twice in the back. A district court’s failure to
identify the genuinely disputed facts, however, does not transform the question of evidence
sufficiency into an issue that is separable from the merits of a plaintiff’s claim and that is within this
court’s jurisdiction on interlocutory appeal.
According to the majority, this conflict between its de novo review of the sufficiency of
Colston’s evidence and the Court’s decision in Jones and collateral order doctrine is authorized by
the Supreme Court’s decision in Behrens. The Behrens opinion, however, does not purport to create
an exception to the collateral order doctrine’s separability requirement. Likewise, as the Colston
majority recognizes, the opinion in Behrens does not expressly state that a court of appeals may
review a district court’s genuineness determination and substitute its view of the summary judgment
evidence for that of the district court in a case where the district court has “not identif[ied] the
particular charged conduct that it deemed adequately supported for the purposes of summary
judgment.” Instead, the Court in Behrens simply reiterated its position in Jones that under these
g:\opin\96-40151.dis 46
circumstances, a court of appeals “`may have to undertake a cumbersome review of the record to
determine what facts the district court, in the light most favorable to the nonmoving party, likely
assumed.’” Behrens, 116 S. Ct. at 842 (quoting Jones, 115 S. Ct. at 2159). The majority’s
interpretation of Behrens, therefore, is ultimately predicated on its view that a court of appeals may
review de novo a district court’s genuineness determination on interlocutory appeal because there is
no better way “to ensure that the defendant’s right to an immediate appeal on the issue of materiality
is not defeated solely on account of the district court’s failure to articulate its reasons for denying
summary judgment.”
Like the majority’s independent review of the sufficiency of Colston’s evidence, this policy
argument also conflicts with the Supreme Court’s decision in Jones. In that case, the petitioner
claimed that a court of appeals should be permitted to review the sufficiency of a plaintiff’s evidence
on interlocutory appeal because “the need to protect officials against the burdens of further pretrial
proceedings and trial justifies a relaxation of the separability requirement.” Jones, 115 S. Ct. at 2157
(quotations omitted). The Supreme Court, however, rejected this claim. Emphasizing jurisdiction
over expedience, cf. Steel Co. v. Citizens for a Better Env’t, 118 S. Ct. 1003, 1011-16 (1998)
(holding that a court of appeals may not assume that a plaintiff has standing in order to reach the
merits of that plaintiff’s claim), the Court stated that allowing a court of appeals to review the
sufficiency of a plaintiff’s evidence on interlocutory appeal “would more than relax the [collateral
order doctrine’s] separability requirement—it would in many cases simply abandon it.” Jones, 115
S. Ct. at 2157. Thus, the majority’s policy rationale for its interpretation of Behrens sharpens, rather
than alleviates, the conflict between its de novo review of the district court’s genuineness
determination and the Supreme Court’s holding in Jones.
III.
The majority’s policy rationale for its de novo review of the sufficiency of Colston’s evidence
also reflects an incorrect underst anding of the proper balance between the policies underlying
qualified immunity and the limits on our jurisdiction over interlocutory appeals. Contrary to the
g:\opin\96-40151.dis 47
majority’s suggestion, a de novo review of a district court’s genuineness determination was not
necessary to ensure Barnhart’s right to an immediate appeal on the question of qualified immunity.
Instead, the majority could have overcome the district court’s incomplete order denying summary
judgment and fully protected Barnhart’s right to an interlocutory appeal by adopting of the version
of events contained in Colston’s response to Barnhart’s motion for summary judgment or remanding
the case to the district court for a complete statement of the genuine issues of material fact. Each of
these alternatives to the handling of this appeal, moreover, would have been entirely consistent with
the co llateral order doctrine and the language and analysis in Jones and Behrens. The majority,
therefore, did not have to interpret Behrens as conflicting with the collateral order doctrine and the
Court’s unanimous decision in Jones in order to properly dispose of this appeal.
To exercise its jurisdict ion over an interlocutory appeal from an incomplete order denying
summary judgment in a manner that is consistent with Jones and the collateral order doctrine, a court
of appeals should “determine what facts the district court , in the light most favorable to the
nonmoving party, likely assumed” when denying a defendant’s motion for summary judgment by first
comparing that defendant’s motion for summary judgment and the plaintiff’s response in order to
identify the disputed issues of fact.18 By assuming that the plaintiff’s version of these factual disputes
is sufficiently supported by the summary judgment evidence, a court of appeals best complies with
its obligation under Jones to adopt the version of the facts, “in the light most favorable to the
nonmoving party,” that the district court most “likely assumed” when it denied the defendant’s
motion for summary judgment. Jones, 115 S. Ct. at 2159. Moreover, by utilizing the plaintiff’s
18
As the Supreme Court has suggested, our review of the summary judgment record may become
“cumbersome” if a defendant’s motion for summary judgment and the plaintiff’s response do not
sufficiently highlight the factual disputes in a case. See Jones, 115 S. Ct. at 2159. In that event, a
court of appeals may be forced to examine the parties’ exhibits, the complaint, and the answer in
order to identify the plaintiff’s version of the factual disputes that it will assume to be genuine for the
purposes of its materiality analysis. Of course, this “detailed evidence-based review of the record,”
id., increases the risk that the collateral order doctrine’s separability requirement will be relaxed, if
not abandoned, in an effort to hasten the resolution of a qualified immunity case. A remand to the
district court for a complete statement of the genuine issues of material fact precluding summary
judgment, however, would eliminate this risk of relaxing or abandoning the separability requirement
in such a case without sacrificing a public official’s right to an immediate appeal. See infra.
g:\opin\96-40151.dis 48
version of the facts when determining whether the factual disputes between the parties are material
to a finding of qualified immunity, a court of appeals preserves the collateral order doctrine’s
separability requirement and the defendant’s right to an interlocutory appeal on the issue of qualified
immunity.19
Had the majority in Colston properly restricted its review of the summary judgment record,
it would have determined that the factual dispute as to whether Colston was running away or whether
he posed an immediate threat of death or serious bodily harm to the officers at the time he was shot
twice in the back was material to a finding that Barnhart was entitled to qualified immunity.20 Once
the version of the events preceding the shooting contained in Colston’s response to Barnhart’s motion
for summary judgment is assumed to be sufficiently supported by the evidence, it is clear that the
district court correctly determined that Barnhart was not entitled to summary judgment based on the
objective reasonableness of his actions. Under Colston’s characterization of the shooting, a
reasonable police officer in Barnhart’s position at the time of the shooting would not have shot
Colston twice in the back without warning because that officer would have perceived that Colston
was running away. Moreover, even if the majority correctly credits Barnhart with the unclaimed
subjective intent of shooting Colston because he perceived Colston to be running toward the patrol
car, a reasonable officer would not have shot Colston in the back until Colston had taken additional
action indicating an intent to gain access to the shotgun in the police cruiser in the face of a warning
to move away from the car. The factual disputes between Colston and Barnhart, therefore, are
material to a finding of qualified immunity and the Colston majority should have affirmed the district
19
Cf. Jones, 115 S. Ct. at 2159 (noting that a court of appeals avoids entangling itself in the merits
of a plaintiff’s case and causing a corresponding relaxation of the separability requirement by “simply
tak[ing], as given, the facts that the district court assumed when it denied summary judgment”);
Hammond v. Kunard, No. 96-2343, 1998 WL 305187, at *3 (7th Cir. June 11, 1998) (“[In] a motion
to dismiss, we assume that all of the facts of the complaint are true, rendering the applicability of
qualified . . . immunity a purely legal question over which we have jurisdiction.”).
20
Of course, had the majority adopted these principles, it would not have reviewed the sufficiency
of Colston’s evidence or inexplicably concluded that the district court likely assumed the version of
the facts most favorable to Barnhart when denying his motion for summary judgment.
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court’s denial of Barnhart’s motion for summary judgment. Cf. Dickerson, 101 F.2d at 1164
(dismissing a defendant’s interlocutory appeal for lack of jurisdiction after determining that the factual
disputes between the parties were material to a finding that the defendant was entitled to qualified
immunity on the plaintiff’s excessive force claim); Clash v. Beatty, 77 F.3d 1045, 1049 (7th Cir.
1996) (dismissing a defendant’s interlocutory appeal for lack of jurisdiction when the record was
insufficiently developed for the court of appeals to determine whether the disputes between the
parties were material to a finding that the defendant was entitled to qualified immunity on the
plaintiff’s excessive force claim).21
In the alternative, even though a cumbersome review of the record is not necessary to identify
the version of the facts supporting the district court’s decision to deny Barnhart’s motion for
summary judgment, the majority should have remanded this case to the district court for a sufficiently
specific statement of the genuine issues of material fact precluding summary judgment.22 In fact, this
21
This is no t to say that Barnhart may not ultimately prevail on his claim that he acted with
objective legal reasonableness under the circumstances. Colston’s version of the encounter, however,
indicates that the determination of whether Barnhart acted with objective legal reasonableness belongs
to a jury. When confronted with the testimony of both Barnhart and Colston, a jury may ultimately
conclude that a reasonable officer, when standing in Barnhart’s shoes, would have also shot Colston
twice in the back without warning. Cf. Snyder v. Trepagnier, No. 96-30935, 1998 WL 268280, at
*7-9 (5th Cir. May 27, 1998) (affirming a jury verdict that awarded the defendant qualified immunity
for his decision to shoot the plaintiff in the back after the district court had properly denied summary
judgment on qualified immunity grounds because there was a genuine dispute of material fact as to
whether the plaintiff had a gun or the defendant reasonably believed that he did).
22
Cf. Crutcher v. Kentucky, 883 F.2d 502, 503 (6th Cir. 1989) (“The district Court’s denial of
Owens’ motion stated only that genuine issues of material fact remained for resolution at trial. . . .
We vacate the District Court’s ruling on the qualified immunity issue and remand this case to the
District Court so that it can state its reasons for concluding that there was no genuine dispute about
any fact material to whether Owens violated clearly established constitutional rights.”); Poe v.
Haydon, 853 F.2d 418, 426-27 (6th Cir. 1988) (“Although this court could conduct its own
examination of the record and determine if there is a genuine dispute about any fact material to
whether appellants violated any clearly established constitutional or statutory rights, we decline to
do so.”); Whitt v. Smith, 832 F.2d 451, 453-54 (7th Cir. 1987) (“No particular factual issues were
identified in the district court’s order . . . and [w]e will not attempt the factual analysis to determine
whether qualified immunity is applicable at this stage of the proceedings. We therefore . . . remand
the case to the district court.”); Green v. Carlson, 826 F.2d 647, 652 (7th Cir. 1987) (“The appellants
contend that . . . this court should conduct its own examination of the record and decide . . . whether
the appellants violated any clearly established constitutional or statutory rights. However, in light of
the complexity of this case, and the district court’s finding that numerous [but unstated] disputed
issues of fact remain, we
g:\opin\96-40151.dis 50
approach might have struck an even better balance between the goals of qualified immunity and the
limits on our jurisdiction over interlocutory appeals than a limited review of the parties’ competing
summary judgment filings.23 A proper remand in this case would have protected Barnhart from any
additional “burdens of litigation,” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), by staying the
proceedings in the district court, if necessary, until that court had sufficiently identified the genuine
issues of material fact precluding summary judgment and this court had reached a decision on the
merits of Barnhart’s subsequent interlocutory appeal. In addition, this disposition would have
precluded any potential relaxation of the separability requirement.
Indeed, even if the majority correctly interprets Behrens to create an exception to Jones and
the collateral order doctrine that authorizes a court of appeals to conduct a de novo review of the
sufficiency of a plaintiff’s evidence simply because a district court has failed to identify the genuine
issues of material fact precluding summary judgment,24 this case should have been remanded.25 There
decline to reach the merits of the defendants’ qualified immunity claim. Instead, we remand the case
for [additional] finding[s].”)
23
A remand in this case would also promote judicial economy. As the Supreme Court has noted,
“considerations of delay, comparative expertise of trial and appellate courts, and wise use of judicial
resources, argue in favor of limiting interlocutory appeals of ‘qualified immunity’ matters to cases
presenting more abstract issues of law.” Jones, 115 S. Ct. at 2158. Every effort we make to identify
a plaintiff’s version of the disputed issues of fact, ho wever, makes the qualified immunity
determination less of a pure question of law. That a remand would entail additional district court
action, moreover, does not undercut its usefulness in furthering judicial economy. Instead, it reflects
the district court’s comparative advantage in identifying the version of the facts precluding a grant
of summary judgment. Further, a rule requiring remands of interlocutory appeals from insufficiently
specific orders denying summary judgment would promote judicial economy by encouraging district
courts to identify completely the genuine issues of material fact precluding summary judgment.
24
In Jones, the Supreme Court stated that “a rule that occasionally requires a detailed evidence-
based review of the record is still, from a practical point of view, more manageable that the rule that
petitioners urge us to adopt,” i.e., allowing a court of appeals to review the sufficiency of the
plaintiff’s evidence on interlocutory appeal. 115 S. Ct. at 2159. The Court
then noted that the “petitioners’ approach would make that task not the exception, but the rule.” Id.
When read in isolation, this language might suggest that the Court has crafted a narrow exception to
the collateral order doctrine’s separability requirement. To adopt this reading of Jones, however,
would conflict with the Court’s earlier statement in Jones that the policies justifying an interlocutory
appeal on the purely legal question of qualified immunity do not authorize an abandonment of the
separability requirement to permit an interlocutory appeal on the question of evidence sufficiency.
Thus, this language from Jones is best understood as reflecting the Supreme Court’s recognition that
a “cumbersome” review of the record increases the risk that a court of appeals will review the
g:\opin\96-40151.dis 51
is simply no reason to relax or abandon the collateral order doctrine’s separability requirement when
a remand will not deprive a defendant of the benefits of raising a qualified immunity defense.
IV.
I respectfully dissent from the denial of rehearing en banc. The question of the proper scope
of our review of the summary judgment record in an interlocutory appeal from an incomplete order
denying summary judgment is one of considerable importance. Any answer we give must carefully
balance the limited nature of our jurisdiction over interlocutory appeals with the policies underlying
qualified immunity. For this reason alone, the majority’s decision in Colston deserves the attention
of the full court. More importantly, the balance the majority has struck between these competing
concerns conflicts unnecessarily with the Supreme Court’s decision in Jones. Thus, the court should
have taken this case en banc and either affirmed the district court’s denial of summary judgment or
remanded this case.
sufficiency of a plaintiff’s evidence.
25
In the alternative, the majority should have affirmed the district court because Colston’s
evidence was sufficient to create a genuine issue of material fact as to whether Barnhart should have
perceived that Colston was running away at the time he was shot twice in the back.
g:\opin\96-40151.dis 52