Unwin v. Campbell

BREYER, Circuit Judge

(dissenting).

I disagree with the court about the extent to which an appeals court should review purely factual determinations in the course of a “qualified immunity” interlocutory appeal. I would restrict our review of such factually-related matters.

1. To understand my conclusion one must begin by asking whether a defendant is entitled to an interlocutory appeal that raises only the question of whether a district court correctly decided to send a factual issue to a jury. Consider the following example: Plaintiff sues a policeman, claiming the policeman deliberately shot him without justification. The only dispute is one of identity; the defendant says he was out of town at the time of the shooting. The district court finds enough evidence in the record to create a jury issue in respect to identity; it denies defendant’s motion for summary judgment. The only “legal issue” that the district court has decided is the peculiarly fact-bound legal issue of “evidence sufficiency.” Can the defendant appeal this determination immediately, before trial on the ground that it is relevant to (indeed, determinative of) his “qualified immunity” defense?

The Supreme Court has not directly focused upon this question. In Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985), the Court wrote that it was important to permit interlocutory appeals in qualified immunity cases in order to protect the defendant against an unnecessary trial; but it analyzed the issue of appealability as follows:

Similarly, it follows from the recognition that qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct that a claim of immunity is conceptually distinct from the mprits of the plaintiff’s claim that his rights have been violated. An appellate court reviewing the denial of the defendant’s claim of immunity need not consider the correctness of the plaintiffs version of the facts, nor even determine whether the plaintiffs 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. 9 To be sure, the resolution of these legal issues will entail consideration of the factual allegations that make up the plaintiff’s claim for relief; the same is true, however, when a court must consider whether a prosecution is barred by a claim of former jeopardy or whether a Congressman is absolutely immune from suit because the complained of conduct falls within the protections of the Speech and Debate Clause. In the case of a double jeopardy claim, the court must compare the facts alleged in the second indictment with those in the first to determine whether the prosecutions are for the same offense, while in evaluating a claim of immunity under the *138 Speech and Debate Clause, a court must analyze the plaintiffs complaint to determine whether the plaintiff seeks to hold a Congressman liable for protected legislative actions or for other, unprotected conduct. In holding these and similar issues of absolute immunity to be appeal-able under the collateral order doctrine, the Court has recognized that a question of immunity is separate from the merits of the underlying action for purposes of the Cohen test even though a reviewing court must consider the plaintiffs factual allegations in resolving the immunity issue.

Accordingly, we hold that a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable “final decision” within the meaning of 28 U.S. C. § 1291 notwithstanding the absence of a final judgment.

Mitchell, 472 U.S. at 527-30 , 105 S.Ct. at 2816-18 (emphasis added, citations and footnote omitted).

This discussion shows that the Court had two examples in mind. In the first example, a district court concludes that, if the plaintiffs version of the facts is correct, the defendant does not enjoy qualified immunity (e.g., the plaintiff says that a policeman defendant deliberately shot an innocent person without justification). The defendant might appeal, claiming that, even on the plaintiffs version of the facts, he enjoys qualified immunity. In the second example, the district court concludes that, even if the defendant’s version of the facts is correct, he does not enjoy qualified immunity (e.g., the defendant says that given the circumstances of the shooting, the law about justification was unclear, but the district court finds that the law was clear that he lacked justification). The defendant might appeal, claiming that the district court was wrong about the clarity of the law. In neither of these examples is the defendant challenging a fact-based legal determination that the evidence is sufficient to go to the jury.

The Mitchell Court does not discuss a third example. That is the situation I mentioned at p. 137, supra. The parties, perhaps, agree that, on plaintiff’s version of the facts, there is no immunity, and on defendant’s version, there is immunity. They disagree, however, about what the facts are. After reviewing depositions, affidavits, interrogatories, etc., the district court denies summary judgment and sends the case to the jury. The defendant, believing the evidence was not sufficient, wishes to appeal the refusal to grant him summary judgment. Of course, this appeal raises a “question of law,” but it is the special, fact-specific legal question of whether the evidence in the record is sufficient to raise a factual issue for the jury.

The Supreme Court considered the “qualified immunity” appeal again in Anderson v. Creighton, 107 S.Ct. 3034 (1987). But again, it did not decide whether, or how, an appellate court is to review a factual, “evidence-sufficiency” ruling on interlocutory appeal. In Anderson the Court considered an appellate court’s reversal of a district court’s holding “that the undisputed facts revealed that Anderson had had probable cause to search the Creightons’ home and that his failure to obtain a warrant was justified by the presence of exigent circumstances.” Id. at 3037-38 (emphasis added). The Court held that the appellate court had wrongly “refused to consider the argument that it was not clearly established that the circumstances with which Anderson was confronted did not constitute probable cause and exigent circumstances.” Id. at 3039 . The Court said:

The relevant question in this case, for example, is the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s war-rantless search to be lawful, in light of clearly established law and the information the searching officers possessed.

Id. at 3040 . But, in context, the “fact-specific question” the Court refers to is not the question of “what findings of fact will the evidence support?”, but rather, the dif *139 ferent, fact-based question of whether the defendant’s specific conduct in his specific situation was, or was not, clearly prohibited by law, a question having nothing to do with disputes about the evidence.

The Anderson Court, in a final footnote, says that where the facts relevant to a motion for dismissal on qualified immunity grounds are in dispute, the district court must permit discovery “tailored specifically to the question of ... qualified immunity,” before the “motion for summary judgment on qualified immunity grounds can be resolved.” Id. at 3042 n. 6. But the Court does not say whether the defendant can appeal before trial, on the ground that the district court erroneously held that the evidence warrants submission of a “what-are-the-faets” question to the jury.

2. In my view, a defendant is not entitled to a “qualified immunity” interlocutory appeal in respect to a pure fact-based “evidence sufficiency” ruling. For one thing, the language and reasoning of Mitchell suggest that no interlocutory appeal is permitted. The Court, in the part of the opinion quoted at length above, said that the appellate court in an interlocutory appeal on qualified immunity, “need not consider the correctness of the plaintiffs version of the facts.... All it need determine is a question of law.” Id. 472 U.S. at 528 , 105 S.Ct. at 2816 (emphasis added). The Court emphasized in footnote 9 that “the appeal-able issue is a purely legal one.” Id. at 528 n. 9, 105 S.Ct. at 2816 n. 9 (emphasis added). And, the Court’s precise holding was that the denial of a qualified immunity claim is immediately appealable “to the extent that it turns on an issue of law.” Id. at 530, 105 S.Ct. at 2817 (emphasis added). Of course, “sufficiency of the evidence” is a question of law, but the Court’s language quoted above must mean to distinguish other, more purely legal questions from just this kind of “evidence-sufficiency” question. The Court’s language would be meaningless otherwise, since every judicial act and every appeal involve decision of, or challenge to, a question of law. That is to say, unless the Court is distinguishing fact-based “evidence-sufficiency” questions from other legal questions, it is not making any distinction at all.

For another thing, to permit interlocutory appeals of “evidence-sufficiency” questions will create difficult practical problems. Factual issues in § 1983 cases are often far more complex than my “misidentified policeman” example suggests. They often concern such nebulous matters as whether the defendant acted with “discriminatory intent,” matters in respect to which a record may contain vast amounts of conflicting affidavits, depositions, and other discovery material. See, e.g., Menzel v. Western Auto Supply Co., 848 F.2d 327, 329-30 (1st Cir.1988) (age discrimination claim turned on circumstantial evidence of discriminatory intent); United States v. Massachusetts Maritime Academy, 762 F.2d 142, 153-56 (1st Cir.1985) (court examined record in detail in reviewing trial court’s finding of discriminatory purpose). Deciding whether the evidence is sufficient to go to the jury in such cases can take many hours of reading depositions, interrogatory answers, and other record material, filled with vague or ambiguous statements. Indeed, district courts in such eases may deny summary judgment simply because the record is so complex that, from the perspective of efficient judicial caseload management, it is best to send the case to the jury. 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2728 nn.ll, 12 (1983 & Supp.1988). If the jury decides for the defendant, the case is over. If the jury decides for the plaintiff, the issue becomes one of sufficiency of the evidence at trial, not sufficiency of the often-less-comprehensible documentary evidence presented at the summary judgment stage. The summary judgment question has “washed out.” We will not review a claim by a losing defendant that, even though there is a jury verdict against him supported by adequate evidence, the district court prior to trial (when the written record was sparser and harder to understand) should have granted summary judgment in his favor. Benitez-Allende v. Alcan Aluminio do Brasil, S.A., 857 F.2d 26, 32 (1st Cir.1988) (district court may choose, in its discretion, to deny summary judg *140 ment and give parties the chance to fully develop case by proceeding to trial); see 10A C. Wright, A. Miller & M. Kane, supra. We instead recognize the power of the district court to decide, for administrative reasons, that the more efficient course of action is simply to set the case for trial.

To permit a defendant to appeal an evidence-sufficiency issue prior to trial would seriously undermine the district court’s case management powers. It would be anomalous to let a defendant force both a district court and an appeals court to pore over a complex record to decide whether the evidence is sufficient to go to a jury, when the practical solution in hard cases is simply to hold the jury trial. Indeed, if a district court knows that a defendant will immediately appeal, before trial, a decision to send a doubtful case to the jury, how can that court follow the Supreme Court’s cautions against hastily granting summary judgment? See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 , 106 S.Ct. 2505, 2513 , 91 L.Ed.2d 202 (1986) (court should act “with caution in granting summary judgment,” and deny it “in a case where there is reason to believe that the better course would be to proceed to a full trial”).

These practical considerations convince me that the Supreme Court meant, in the Mitchell language quoted above, precisely what it said, namely that a qualified immunity issue is immediately appealable only when it presents a question of law other than the question whether the evidence was sufficient to raise a jury issue about a particular fact.

3. If I am right that a defendant cannot take an interlocutory appeal on a “sufficiency of the evidence” question, then the defendant also cannot require a court of appeals to decide such a question when it is added to an interlocutory appeal that does raise legitimate Mitchell issues. It is well established that, on an interlocutory appeal, we need consider only those issues that the defendant has a right to appeal immediately, and not other issues involved in the case. The Supreme Court’s decisions since Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986), have not cast doubt on our statement that a defendant does not obtain a general right to appeal an adverse ruling on summary judgment simply by raising a qualified immunity defense; any other ruling he seeks to challenge on appeal must independently qualify as a final, appealable order. Id. at 173-74 ; see also Lugo v. Alvarado, 819 F.2d 5, 8 (1st Cir.1987) (interlocutory review of discovery order not permissible just because defendant raised qualified immunity defense). Were this not so, a defendant could concoct a plausible (but incorrect) claim that the district court made a mistake about whether the law was clearly established, and thus obtain appellate review of the very same fact-based questions that should not be immediately appealable, under Mitchell. See Bonitz, 804 F.2d at 174 (to allow immediate appeal whenever a defendant can frame his arguments in terms of qualified immunity would, in effect, eliminate the final decision requirement for defendants who are public officials).

4. The following problem remains: If we are to decide qualified immunity questions of law on interlocutory appeals, but not “evidence sufficiency” questions of fact, what facts should we assume when we decide a question of law? In Bonitz , we held that we should look to the plaintiff’s version of the facts. Id. at 167-68 . That need not hold true in every circumstance. If, for example, the district court has conducted discovery before deciding the qualified immunity issue, see Anderson v. Creighton, 107 S.Ct. at 3042 n. 6, and if it has decided there is sufficient evidence of defendant’s liability to go to the jury, we could take the facts as the district court assumed the jury might find them. We could then go on to ask whether the district court correctly determined, given such facts, that the law prohibiting defendant’s conduct was clearly established. Or, in a case where the parties on appeal agree that certain facts exist, we could take the facts as agreed. It is even possible, in some cases, that it would be useful and proper for us to examine the record to establish the relevant undisputed facts. I would not say we could never look at the record to *141 establish the facts; it might expedite the handling of a particular appeal were we to do so. I would say only that we ordinarily should not go into questions of “evidence sufficiency” on an interlocutory appeal, and that the defendant has no legal right to compel us to do so; I see no significant difference between granting the defendant such a right and granting him the broad interlocutory appeal that, in my view, the Supreme Court has denied him for reasons set out at pp. 139-140, supra.

5. In this case, I see no real issue on appeal, in respect to the defendants Campbell and Furlone, other than the purely factual issue whether the evidence shows that they were present at the time plaintiff was hurt. This, it seems to me, is not an appropriate issue for us to resolve on an interlocutory appeal. The occasion for us to consider the legal sufficiency of the evidence on this factual issue is after the trial. If the district court submits the issue to the jury, if the defendants lose, and if the district court refuses to grant a judgment notwithstanding the verdict, then they can appeal that refusal. They then can argue, in the course of an ordinary appeal, that there is insufficient evidence of their presence when the plaintiff was hurt. Although these defendants, like defendants in most cases, are likely to object to potentially unnecessary trials on purely factual issues, the alternative would produce complex administrative problems and violate the spirit, if not the letter, of Mitchell’s grant of an interlocutory appeal limited to “questions of law.”

For these reasons I would affirm the district court decision in its entirety.

We emphasize at this point that the appeal-able issue is a purely legal one: whether the facts alleged (by the plaintiff, or, in some cases, the defendant) support a claim of violation of clearly established law.