Elder v. Holloway

REINHARDT, Circuit Judge,

with whom Circuit Judge PREGERSON joins,

dissenting from the order rejecting the suggestion for rehearing en banc.

I join Judge Kozinski's excellent, if understated, dissent, and write separately to emphasize one or two additional points. First and foremost — it is civil rights plaintiffs who once again are the object of hostile and discriminatory treatment by the federal courts. Elder sets forth the rule that, in considering a civil rights plaintiff’s challenge to a state official’s qualified immunity defense, appellate courts may not consider cases or precedents which the plaintiff failed to cite to the district court. As Judge Kozinski politely suggests, this is a limitation on appellate review previously unknown in the annals of Anglo-Saxon jurisprudence.

It remains to be seen whether the same bizarre rule will be applied when defendants fail to cite cases to the district court — but even if it is, it is clear that in the vast majority of instances, civil rights plaintiffs will bear the brunt of the Elder doctrine. First, plaintiffs are obliged by the nature of the principles governing qualified immunity to rely more heavily on case law than are defendants. The primary means open to a plaintiff to demonstrate the clarity of the law violated by a state official, and thus to overcome a qualified immunity defense, is the citation of past cases which have established a given rule or legal principle. Defendants, by contrast, may rely simply on the absence of cases clearly establishing the relevant law. Defendants are therefore far less likely to fall victim to a rule which harshly penalizes the omission of a citation. Second, civil rights plaintiffs are at a substantial disadvantage with respect to legal resources. While civil rights defendants are generally represented by a legal office composed of a large number of state or local government attorneys, the overwhelming majority of civil rights plaintiffs are unable to obtain comparable representation. Few are in a position to hire a prestigious law firm with a raft of partners and associates, and only a small number obtain representation by an organization with a permanent legal staff of any size. Instead, the victims of civil rights violations must generally rely on lawyers who work in small law offices or as sole practitioners. These lawyers are usually overburdened and rarely have access to the resources and facilities available to the average attorney representing corporate or governmental clients. They are *1001 consequently more apt to miss a case than are their governmental opponents. In sum, while we do not yet know whether Elder is even formally neutral between civil rights plaintiffs and defendants, it is evident that as a practical matter it is not, and that it is the plaintiffs who will ordinarily fall victim to its inequitable strictures.

I emphasize that no other litigant— whether suing for an antitrust, tort, contract, or copyright violation — risks forfeiture of his right to have the controlling law applied to his case simply because he neglects to cite the appropriate precedent in the district court. For all other litigants, and in all other circuits, the law is the law, regardless of the citation of cases below and regardless of the quality of the plaintiffs lawyer; for a Ninth Circuit civil rights plaintiff faced with a qualified immunity defense, however, the law is only controlling if his lawyer brings the particular case to the attention of the district court. Only in a civil rights case and only in our circuit can the failure to cite a particular decision render a federal appellate court powerless to provide a remedy for a blatantly unconstitutional act. Civil rights victims in the Ninth Circuit will thus be doubly victimized: first by a state or local official’s violation of their constitutional rights; next when they seek to recover the damages to which they are entitled.

In this case, the panel may not invoke the familiar mantra that the result it reaches, however unjust, is ordained by precedent. No court has ever before concluded that decisional law is lex non grata or loi dispara if not cited to the district court, nor has any court ever before recognized the existence of the hybrid entity which the panel oxymoronically labels “legal fact.” On the contrary, in at least three cases our court has expressly acknowledged its obligation to look beyond the cases cited by the parties in analyzing qualified immunity issues. See Kozinski, J., dissenting supra at 997. That the panel is itself solely responsible for the establishment of the paradoxical Elder rule is further evident from the fact that the rule was neither proposed nor discussed by the parties in their briefs. The panel’s sua sponte invention of a rule which seriously disadvantages civil rights plaintiffs displays a disregard both for precedent and for the rights of the individuals involved. 1

As Judge Kozinski notes, our en banc process is imperfect. In this respect it is no different from other judicial, governmental, or electoral processes. Misfires occur in all walks of life. However, one aspect of the error we commit here is unique. Under our rules, when we decide not to go en banc, the public is prohibited from learning how the court divided over the issue. The public is even prohibited from learning whether a majority of the court voted against en banc review. 2 The secrecy surrounding our en banc procedure is unhealthy. See discussion in Harris v. Vasquez, 949 F.2d 1497, 1539 (9th Cir.1990) (Reinhardt, J., dissenting), cert. denied, — U.S. -, 112 S.Ct. 1275 , 117 L.Ed.2d 501 (1992). As in Harris, and as in all other en banc proceedings, I think the public, the bar, and the district judges would benefit from knowing the breakdown of the actual vote. For reasons I am not free to reveal, I believe that in the case before us disclosure of the vote would be particularly informative. For that reason, I am especial *1002 ly uncomfortable with the application of our secrecy rule; I will, however, comply with its dictates.

I can conceive of only one good reason for any of my colleagues to have voted against an en banc hearing in this case: because they believe that Elder can or will be sharply limited, and they therefore find it unworthy of en banc consideration. Elder is certainly susceptible to a future reading that leaves it with little or no significance. The panel only applied its novel rule after expressly stating that doing so would not result in an injustice. See Elder, 975 F.2d at 1396. According to the panel, its holding does no injustice to Elder because consideration of the precedent which Elder failed to cite —U.S. v. Al-Azzawy 3 —would have made no difference to the outcome of his case. The panel said that even considering Al-Azzawy:

... we are hard pressed to say that the law was so clearly established that a reasonable law enforcement officer in Holloway’s shoes would understand that what he was doing violated a constitutional right. See Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir.1986) (the court does not “require of most government officials the kind of legal scholarship normally associated with law professors and academicians”), cert. denied, 483 U.S. 1020 , 107 S.Ct. 3263 , 97 L.Ed.2d 762 (1987).

Id.

In light of the panel’s implicit admission that the result in Elder would have been the same with or without the proclamation of its novel rule, it is tempting to dismiss the rule as mere dicta. That may be difficult to do here, however, because the rule appears to constitute the raison d’etre for the opinion. Nevertheless, future panels may well conclude that the Elder rule should not be invoked if doing so would lead to an unjust result — specifically, if its application would cause a civil rights plaintiff who would otherwise prevail to lose his case. 4

Perhaps it is impatience that prevents me from simply awaiting that result. Doing so might well ensure a peaceful, dignified burial for the bizarre Elder rule. However, like Judge Kozinski, I do not believe it is appropriate to let a case which promulgates so glaring an error in so important an area of the law go unchallenged. Rather, I believe that, considering how significantly the Elder decision conflicts with precedent, practice, and our obligation to vindicate constitutional rights, we have a duty to correct the panel’s error now. I believe we breach that duty by failing to take the case en banc. Thus, for the reasons I have expressed, and for those ably articulated by Judge Kozinski, I dissent from the order denying en banc review.

. There is little comfort that an adherent of constitutional rights can take from Elder. It is worth noting, however, that while the panel attempts to tie our hands, it has not sought to change the district court’s traditional role. Even under Elder, district courts knowledgeable in the law will continue to apply the relevant law whether or not it has been cited by the plaintiff. See Elder, 975 F.2d at 1396.

. In our circuit, an en banc call can be defeated even when a majority of the court does not vote against an en banc hearing. En banc review occurs only when an absolute majority of active judges votes in the affirmative. Thus, a tie vote will always defeat an en banc call. Similarly, a call will fail if a majority of those voting cast a "yes" vote but the “yes” votes do not outnumber the combined "no” votes and abstentions. See generally Harris v. Vasquez, 949 F.2d at 1539 .

I should add that even where, as here, a dissent from an order denying en banc review is filed, the public cannot tell how many judges favored an en banc hearing. Judges who vote in favor of en banc review frequently do not join the dissent.

. 784 F.2d 890 (9th Cir.1985), cert. denied, 476 U.S. 1144 , 106 S.Ct. 2255 , 90 L.Ed.2d 700 (1986).

. Judge Kozinski argues at n. 1 of his dissent that, despite the language of the opinion, Elder cannot be interpreted to hold that the panel would have reached the same result if U.S. v. Al-Azzawy had been cited to the district court. He bases his argument on his own interpretation of Al-Azzawy and on the observation that it would be improper and illogical to invent a completely new legal doctrine in order to avoid considering a non-controlling case. Even if Judge Kozinski is correct that, properly construed, Al-Azzawy would require reversal of the district court, that cannot change the fact that the panel's view of Al-Azzawy was different. It was the panel’s view that Al-Azzawy did not clearly establish the law, and it was on the basis of that interpretation of Al-Azzawy that the panel determined to apply its rule, believing that the result would not be affected. Thus, it is the panel’s interpretation of Al-Azzawy that we must accept in construing its holding — not Judge Kozinski’s. Similarly, that it was improper or illogical for the panel to promulgate a new legal rule under the circumstances present here does not change the fact that the panel did so. We cannot say that because the panel acted illogically or improperly, its opinion does not mean what its language plainly states.