Blatant Contradictions in Qualiﬁed-Immunity Appeals
63 Pages Posted: 2 Aug 2019
Date Written: July 29, 2019
Courts hearing an interlocutory qualified-immunity appeal normally have jurisdiction to address only whether the facts assumed by the district court make out a clear constitutional violation. They lack jurisdiction to look behind the district court’s assumed facts to see whether the evidence supports them. The Supreme Court created this limit on the scope of interlocutory review to reduce the burdens of qualified-immunity appeals. But the blatant-contradiction exception to this limit on the scope of review (which stems from the infamous Scott v. Harris) allows appellate courts to review the genuineness of a fact dispute when something in the record blatantly contradicts the district court’s assumed facts.
To assess the blatant-contradiction exception, I created an original dataset of cases invoking the exception in the 12 years after Scott. The data show that the exception is both profoundly unpragmatic and unnecessary. It is an unwieldy and inefficient method for determining appellate jurisdiction. And all of the time spent addressing supposedly blatant contradictions produces few (if any) benefits. Defendants frequently raise the exception and courts regularly reject it — courts unanimously found a blatant contradiction in only 15% of the cases that squarely addressed the matter. The blatant-contradiction exception nevertheless invites attempted appeals, fights over appellate jurisdiction, wasted merits briefing, and delayed district court proceedings.
Scott’s blatant-contradiction exception needs to go. A better practice is one modeled on a supervisory rule that the Third Circuit created (in an opinion written by then-Judge Alito): require district courts to state the facts they assume when denying qualified immunity at the summary-judgment stage, and limit qualified-immunity appeals to addressing only whether those facts make out a clear violation of federal law. The Supreme Court could adopt this rule in an appropriate case. Or the Rules Committee could get involved; the Committee can craft rules on interlocutory appeals. And if the Committee does decide to address qualified-immunity appeals, there are several other aspects of those appeals that are ripe for reform. This article is the first in a series tackling these issues, all written with an eye towards ultimately reforming the law of qualified-immunity appeals.
Keywords: jurisdiction, civil procedure, federal courts, appellate jurisdiction, interlocutory appeals, qualified immunity
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