I. Qualified Immunity and the Right to Interlocutory Appeal

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SURVIVING INTERLOCUTORY APPEALS: TRIAL LAWYER EDITION

Grace Jun

Iredale & Yoo, APC

105 W. F. St.

Fl.

San Diego, CA 92101

(619) 233-1525

[email protected]

The following outline has two parts: (1) an overview of Supreme Court caselaw regarding

qualified immunity and government officials’ right to interlocutory appeal from denials of

qualified immunity; and (2) a brief discussion of ways trial lawyers can overcome interlocutory

appeals to provide their injured plaintiffs with an opportunity to be heard and vindicated at trial

by a jury.

I. Qualified Immunity and the Right to Interlocutory Appeal

1. Supreme Court Recognizes “Qualified Immunity” for Government Officials

 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982): “We therefore hold that

government officials performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.”

 Objective standard—government officials are presumed to know of, and respect,

“basic, unquestioned constitutional rights.” Id.

 The question then—was that constitutional right of a person “clearly established”?

 Qualified immunity is a two-pronged inquiry (Saucier v. Katz, 533 U.S. 194, 202

(2001)):

 Did the government official violate a federal right?

 Was that right “clearly established” at the time the government official

violated the right?

 Courts may address the qualified immunity prongs in any order and may directly

grant QI if the right is not clearly established. Pearson v. Callahan, 555 U.S. 223,

236 (2009).

 Qualified immunity is an affirmative defense that must be raised and “pleaded by

a defendant official.” Harlow, 457 U.S. at 815.

 But “‘[t]o defeat a claim of qualified immunity, the plaintiff has the burden to

demonstrate the inapplicability of the defense.’ The plaintiff must show ‘(1) that

the official violated a statutory or constitutional right, and (2) that the right was

clearly established at the time of the challenged conduct.’” Mayfield v. Currie,

976 F.3d 482, 486 (5th Cir. 2020) (internal citations omitted).

 Qualified immunity on summary judgment:

 “On summary judgment, the judge appropriately may determine, not only

the currently applicable law, but whether that law was clearly established

at the time an action occurred. If the law at that time was not clearly

established, an official could not reasonably be expected to anticipate

subsequent legal developments, nor could he fairly be said to “know” that

the law forbade conduct not previously identified as unlawful.” Harlow,

457 U.S. at 818.

 But in resolving the two prongs of qualified immunity, “courts may not

resolve genuine disputes of fact in favor of the party seeking summary

judgment.” Tolan v. Cotton, 572 U.S. 650, 656 (2014).

 In Tolan, the Supreme Court reversed the Fifth Circuit’s holding that

police officer Cotton did not violate a clearly established right under the

Fourth Amendment. Id. at 657-58. The Fifth Circuit held that officer

Cotton did not violate clearly established law in shooting plaintiff Tolan

because Cotton could have believed Tolan presented an immediate threat

to officers’ safety. Id. at 654-55. The court noted the Fifth Circuit failed

to view the evidence at summary judgment in the light most favorable to

plaintiff Tolan, improperly weighed evidence, and resolved factual

disputes in favor of officer Cotton, the moving party. Id. at 654. The

Fifth Circuit “credited the evidence of the party seeking summary

judgment and failed to properly to acknowledge key evidence offered by

the party opposing that motion.” Id. at 659.

2. Interlocutory Appeals in § 1983 and Bivens Actions

 Supreme Court provides government officials with the right of interlocutory

appeal. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Denials of qualified

immunity are appealable “final decisions” even if there is no final judgment. Id.

 According to the Supreme Court’s opinion in Mitchell v. Forsyth, absent the right

of interlocutory appeal, a summary judgment order denying qualified immunity

would be essentially unreviewable, meaning it would not effectively vindicate an

essential right—the right of government officials “not to stand trial under certain

circumstances.” 472 U.S. at 525. Qualified immunity is not a “mere defense to

liability” but immunity from suit to protect government officials from the burdens

of trial and “broad-reaching discovery[.]” Id. at 526. This immunity from suit

would be “effectively lost if a case is erroneously permitted to go to trial.” Id.

For this reason, the court extended government officials the right to interlocutory

appeal after a summary judgment order denying qualified immunity. Id. at 527.

 A defendant may pursue an interlocutory appeal from a district court’s denial of

qualified immunity more than once—e.g., appeal from the denial of qualified

immunity on a motion to dismiss and again after summary judgment. Behrens v.

Pelletier, 516 U.S. 299, 310 (1996).

 But the scope of appellate review of denials of qualified immunity is limited to

questions of law. Mitchell, 472 U.S. at 528.

 “An 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, nor even

determine whether the plaintiff's allegations actually state a claim. All it need

determine is a question of law: whether the legal norms allegedly violated by the

defendant were clearly established at the time of the challenged actions or, in

cases where the district court has denied summary judgment for the defendant on

the ground that even under the defendant’s version of the facts the defendant’s

conduct violated clearly established law, whether the law clearly proscribed the

actions the defendant claims he took.” Id.

 For this reason, summary judgment orders on issues of evidentiary sufficiency

(“i.e., which facts a party may, or may not, be able to prove at trial[]”), even in

cases were qualified immunity is invoked, are not immediately appealable.

Johnson v. Jones, 515 U.S. 304, 313 (1995). Interlocutory appeals of denials of

qualified immunity are “limited to cases presenting neat abstract issues of law.”

Id. at 317.

 Because a defendant’s appeal of a summary judgment order relating to

evidentiary sufficiency is closely intertwined with the underlying merits of the

plaintiff’s claim, this does not raise a purely legal question for the appellate court

to decide. Id. at 314-315.

 Thus, the district court’s “determination that the summary judgment record in this

case raised a genuine issue of fact concerning petitioners’ involvement in the

alleged beating of respondent was not a ‘final decision’ within the meaning of the

relevant statute.” Id. at 313.

3. Criticisms of Qualified Immunity and Interlocutory Appeals

 Criticism of qualified immunity: constitutional rights never become clearly

established allowing qualified immunity to extinguish plaintiffs’ 1983 claims in a

perverse, closed-loop pattern. The failure of appellate courts to address the first

prong of qualified immunity (i.e., whether a violation of a federal right occurred)

means new constitutional rights cannot become clearly established. Courts are

then permitted to grant qualified immunity because there no “clearly established”

right can be gleaned from factually analogous precedent. Justice Willet of the

Fifth Circuit called this “Section 1983 meets Catch-22.”

 Justice Willett, dissenting in Zadeh v. Robinson, 928 F.3d 457, 479-80 (5th Cir.

2019), provided this incisive critique:

Two other factors perpetuate perplexity over “clearly

established law.” First, many courts grant immunity

without first determining whether the challenged behavior

violates the Constitution. They avoid scrutinizing the

alleged offense by skipping to the simpler second prong: no

factually analogous precedent. Forgoing a knotty

constitutional inquiry makes for easier sledding, no doubt.

But the inexorable result is “constitutional stagnation”—

fewer courts establishing law at all, much less clearly doing

so. Section 1983 meets Catch-22. Plaintiffs must produce

precedent even as fewer courts are producing precedent.

Important constitutional questions go unanswered precisely

because no one’s answered them before. Courts then rely

on that judicial silence to conclude there’s no equivalent

case on the books. No precedent = no clearly established

law = no liability. An Escherian Stairwell. Heads

government wins, tails plaintiff loses.

Second, constitutional litigation increasingly involves

cutting-edge technologies. If courts leapfrog the

underlying constitutional merits in cases raising novel

issues like digital privacy, then constitutional clarity—

matter-of-fact guidance about what the Constitution

requires—remains exasperatingly elusive. Result: gauzy

constitutional guardrails as technological innovation

outpaces legal adaptation. Id. at 479-80 (internal citations

omitted).

 Criticism of defendant abuse of interlocutory appeals: in Behrens v. Pelletier, the

lower Court of Appeals (the Ninth Circuit) had held that defendant official

claiming qualified immunity “could not ‘take advantage of the several

Unless otherwise noted, all internal citations and alterations have been omitted.

opportunities for immediate appeal afforded by him by bringing repeated pretrial

appeals,’ and that ‘[o]ne such interlocutory appeal is all that a government official

is entitled to and all that we will entertain.’” 516 U.S. at 304 (emphasis in

original).

 The Supreme Court rejected the “one interlocutory appeal” rule. It did observe

“[t]he Court of Appeals expressed concern that a second appeal would tend to

have the illegitimate purpose of delaying the proceedings. Undeniably, the

availability of a second appeal affords an opportunity for abuse, but we have no

reason to believe that abuse has often occurred.” Behrens v. Pelletier, 516 U.S. at

310.

 The Court further noted “if and when abuse (of interlocutory appeals by

defendants) does occur” the Court of Appeals may exercise their “supervisory

powers” to “‘establish summary procedures and calendars to weed out frivolous

claims.’” Behrens, 516 U.S. at 310.

4. Frivolous Interlocutory Appeals

 As the Supreme Court noted in Behrens, 516 U.S. at 310-11, multiple Circuit

Courts of Appeals have recognized the district court’s ability to certify an

interlocutory appeal as frivolous. “This practice, which has been embraced by

several Circuits, enables the district court to retain jurisdiction pending summary

disposition of the appeal, and thereby minimizes disruption of the ongoing

proceedings. See, e.g., Chuman v. Wright, 960 F.2d 104, 105 (C.A.9 1992); Yates

v. Cleveland, 941 F.2d 444, 448–449 (C.A.6 1991); Stewart v. Donges, 915 F.2d

572, 576–577 (C.A.10 1990); Apostol v. Gallion, 870 F.2d 1335, 1339 (C.A.7

1989).” Behrens, 516 U.S. at 310-311.

 As the Seventh Circuit discussed in Apostol v. Gallion, an interlocutory appeal

following the denial of qualified immunity will normally divest a district court of

jurisdiction. 870 F.2d at 1338. But when “the claim of immunity is a sham [] the

notice of appeal does not transfer jurisdiction to the court of appeals, and so does

not stop the district court in its tracks.” Id. at 1339. When a district court makes

a finding of “frivolousness or forfeiture” the plaintiff may seek a stay from the

appellate court, which is authorized to determine its own jurisdiction. Id. But if

the appellate court concludes the appeal appropriately invokes a genuine issue,

“trial must be postponed until the appeal is resolved.” Id.

II. Overcoming Interlocutory Appeals as a Trial Lawyer

Challenge: trial lawyers typically do not have the funds to hire appellate attorneys for

interlocutory appeals. What to do?

1. The Best Offense Is a Good Defense

 Begin thinking about the inevitable qualified immunity interlocutory appeal at the

initial client intake and with case selection.

 Prepare your client for long delays caused by interlocutory appeals from the

beginning of your relationship. Begin educating clients about the challenges of

qualified immunity at the first meeting. Set and manage their expectations—it’s a

marathon and it will exhaust you and your clients.

 Always plead alternate causes of action that do not have qualified immunity.

Examples:

 State tort claims

 State civil rights statutes—in California, we have “Bane Act” claims under

Civil Code 52.1 is essentially the state equivalent of 42 U.S.C. but with no

qualified immunity.

 Americans with Disabilities Act (ADA) or Rehab Act claims

 Title II of the ADA applies to municipalities and any other state or

local entities. 42 U.S.C. §§ 12131, 12132.

 ADA does not apply to the federal government. See 42 U.S.C. §

12131 defining “public entity.” Rehab Act applies to federal

government agencies, but you cannot recover money damages.

Lane v. Pena, 518 U.S. 187, 192 (1996).

2. Conduct Discovery with the Interlocutory Appeal in Mind

 Anchor your case to clearly established law, e.g., in shooting cases, you want to

establish your plaintiff or decedent was not a threat at the time they were shot.

 Aim to raise as many triable issues of fact using your plaintiff, percipient

witnesses, and video and audio evidence.

 If video can be interpreted in many ways, remember to argue that inferences must

be drawn in favor of plaintiff on summary judgment. See, e.g., Cantu v. City of

Dothan, 974 F.3d 1217, 1227-28, 1230 (11th Cir. 2020) (reversing district court’s

grant of summary judgment due to qualified immunity by finding genuine issue of

material fact; jury could reasonably interpret video evidence to make findings

contrary to officers’ version of events, i.e., that decedent had not taken or

controlled one officer’s taser when another officer shot him); Witt v. West

Virginia State Police, Troop 2, 633 F.3d 272, 277 (4th Cir. 2011) (in §1983 action

alleging excessive force dashboard video did not “blatantly contradict” (plaintiff)

Witt’s account of the facts and, therefore, did not “establish that the officers are

entitled to summary judgment.”); Smith v. Finkley, 10 F.4th 725, 740 (7th Cir.

2021) (“The officers’ videos do not blatantly contradict or corroborate the version

of events for one side or the other, leaving this factual dispute unresolved. . . . The

videos again do not resolve this dispute. If the video is viewed as Smith

surrendering, no reasonable officer would shoot in those circumstances. If

viewed as not surrendering, or surrendering from Stahl’s perspective but not

Finkley’s, then the use of force may have been justified.”); Emmett v. Armstrong,

973 F.3d 1127, 1135 (10th Cir. 2020) (“The video footage arguably could support

either Emmett’s version of events or Officer Armstrong’s version of events.

However, because this matter is presented on a summary judgment by Officer

Armstrong, we have to view the video in the light most favorable to Emmett. At

trial, the factfinder will have to decide what to believe; at summary judgment,

however, we are required to believe Emmett if the record supports him.”)

 Develop your evidentiary record on summary judgment to emphasize factual

disputes so you can assert the appellate court lacks jurisdiction on interlocutory

appeal. See, e.g., Estate of Anderson v. Marsh, 985 F.3d 726, 734 (9th Cir. 2021)

(dismissing due to lack of jurisdiction because officer’s interlocutory appeal

challenged the factual basis for district court’s denial of qualified immunity);

Smith v. Finkley, 10 F. 4th at 747-48; Jacobs v. Alam, 915 F.3d 1028, 1041 (6th

Cir. 2019) (concluding factual disputes related to whether plaintiff posed a threat

of serious physical harm to himself or others stripped appellate court of

jurisdiction of officers’ interlocutory appeals).

3. What to Do When You Are Before the Court of Appeals on Interlocutory Appeal

a. Argue officers had notice their conduct violated clearly established law because

of the obviousness of the unconstitutional conduct.

 Taylor v. Riojas, 141 S. Ct. 52 (2020)—reversing the Fifth Circuit’s grant

of qualified immunity due to the absence clearly established law. The

Fifth Circuit determined the law did not clearly establish the

Constitutional prohibition in housing a prisoner in a cell teeming with

human waste for six days. Id. at 53. The court disagreed, holding the

Fifth Circuit erred in granting qualified immunity because “no reasonable

correctional officer could have concluded that, under the extreme

circumstances of this case, it was constitutionally permissible to house

Taylor in such deplorably unsanitary conditions for such an extended

period of time.” Id., citing Hope v. Pelzer, 536 U.S. 730, 741 (2002).

 Hope v. Pelzer, 536 U.S. 730, 741 (2002)—prison guards in Alabama tied

plaintiff Hope to a hitching post for seven hours, without his shirt, where

the sun burned Mr. Hope. Id. 734-35. For seven hours, guards only gave

Mr. Hope water twice and gave him no water breaks. A guard taunted Mr.

Hope, giving water to some dogs, but spilling water on the ground in front

of Mr. Hope. Id. 735. The Eleventh Circuit granted qualified immunity,

finding the constitutional right was not clearly established. Id. 736. The

Supreme Court reversed because of the obvious violation of the Eighth

Amendment. Id. at 738. “Arguably, the violation was so obvious that our

own Eighth Amendment cases gave respondents fair warning that their

conduct violated the Constitution.” Id. at 741. “[O]fficials can still be on

notice that their conduct violates clearly established law even in novel

factual circumstances.” Id.

 A recent example of the Eleventh Circuit Court of Appeals using Hope in

2020 to find a clearly established right—Cantu, 974 F.3d at 1232 (“That

said, with extreme factual circumstances, a pre-existing decision with

material similarity is not always necessary to clearly establish the

applicable law.”). In Cantu, decedent Lawrence was not committing any

felony—“he was just trying to drop off at an animal shelter a stray dog he

had found in a parking lot earlier that day. The underlying crime for

which he was being arrested was, at worst, driving without a license . . .

He never punched, hit, or kicked any of the officers or attempted to do so.

He never tried to harm any of them in any way.” Id. at 1235. The

Eleventh Circuit found a violation of clearly established law in the use of

lethal force, despite the Supreme Court’s repeated admonishments: “We

recognize that the Supreme Court has repeatedly emphasized that the

clearly established law standard is a demanding one. And to keep the

standard demanding, the obvious clarity exception must be kept narrow.

This Court has followed those directions to keep the standard demanding

and the exception to it narrow. But the exception does exist and, viewing

the evidence in the light most favorable to the plaintiff as required at this

juncture, the use of lethal force was so obviously excessive that any

reasonable officer would have known that it was unconstitutional, even

without pre-existing precedent involving materially identical facts.” 974

F.3d at 1235. The fatal shooting in Cantu “‘lies so obviously at the very

core of what the Fourth Amendment prohibits that the unlawfulness of the

conduct was readily apparent’ even without a prior case on point.” Id.

b. Use State Law and Internal Policies and Training Material to Demonstrate the

Officer Knew Their Conduct Was Unlawful

 “Training materials and regulations are also relevant, although not

dispositive, to determining whether reasonable officers would have been

on notice *1165 that their conduct was unreasonable.” Vazquez v. Cty. of

Kern, 949 F.3d 1153, 1164–65 (9th Cir. 2020) (using Prison Rape

Elimination Act (PREA) regulations and training material as part of the

“clearly established” analysis): “given that we have clearly recognized a

Fourteenth Amendment right to bodily privacy, the Juvenile Hall

administrative policies, and the training Anderson likely attended, he is

not entitled to qualified immunity for Vazquez's Fourteenth Amendment

bodily privacy claim.” Id. at 1165.

 Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1061–

62 (9th Cir. 2003) (“but the officers received training from their own

police department explaining specifically that ‘when one or more

[officers] are kneeling on a subject’s back or neck to restrain him,

compression asphyxia can result [‘t]hat may be a precipitating factor in

causing death.’ Anaheim's training materials are relevant not only to

whether the force employed in this case was objectively unreasonable, see

supra section I.A.3, but also to whether reasonable officers would have

been on notice that the force employed was objectively unreasonable.”)

(emphasis added).