Opposition Brief — Lowell T. Johnson, Petitioner v. Robert Lee Stinson

Nos. 17-721, 17-749, 17-788

In the

Supreme Court of the United States

__________

JAMES GAUGER, DR. LOWELL T. JOHNSON,

and DR. RAYMOND RAWSON

Petitioners,

v.

ROBERT LEE STINSON.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

__________

BRIEF FOR ROBERT LEE STINSON IN

OPPOSITION

__________

Michael Kanovitz

Counsel of Record

Gayle Horn

Heather Lewis Donnell

Steven Art

LOEVY & LOEVY

311 N. Aberdeen St., 3rd Floor

Chicago, IL 60607

mike@loevy.com

(312) 243-5900

February 20, 2018

i

QUESTION PRESENTED

Whether this Court should expand appellate

jurisdiction under the collateral order doctrine,

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541

(1949), and overrule Mitchell v. Forsyth, 472 U.S.

511 (1985), and Johnson v. Jones, 515 U.S. 304

(1995), which held that appellate jurisdiction in

qualified immunity appeals is confined to purely

legal questions, and allow for appellate review of

the factual inferences that a district court relies

upon in deciding summary judgment.

ii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ..................................... i

TABLE OF AUTHORITIES ................................... iii

STATEMENT OF THE CASE ................................. 1

SUMMARY OF ARGUMENT ................................. 8

ARGUMENT .......................................................... 11

A. This Court’s Cases Establish That The

Qualified-Immunity Appeals Falling

Within the Collateral Order Doctrine

Are Limited to Purely

Legal Questions...................................... 11

B. The Rule of Johnson v. Jones Was

Confirmed by Scott v. Harris And

Plumhoff v. Rickard ............................... 17

C. No Circuit Split Exists About the

Jurisdictional Limits Set Out In

Johnson v. Jones .................................... 20

D. Petitioners’ Proposed Legal Rule Is

Unworkable ............................................ 27

E. The Petitions Are Fact-Bound And The

Court Should Deny Certiorari ............... 30

CONCLUSION ....................................................... 31

iii

TABLE OF AUTHORITIES

CASES

PAGE

Abdullahi v. City of Madison, 423 F.3d 763

(7th Cir. 2005) ............................................. 28

Adickes v. S. H. Kress & Co.,

398 U.S. 144 (1970) ..................................... 28

Anderson v. Cornejo, 355 F.3d 1021

(7th Cir. 2004) ............................................. 25

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........10, 16, 20

Behrens v. Pelletier, 516 U.S. 299 (1996) ....... passim

Brown v. Callahan, 623 F.3d 249

(5th Cir. 2010) ............................................. 25

Buckley v. Fitzsimmons, 509 U.S. 259

(1993) .......................................................... 7-8

Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949) .............................. passim

Crawford-El v. Britton, 523 U.S. 574 (1998)......... 20

Digital Equipment Corp. v. Desktop Direct, Inc.,

511 U.S. 863 (1994) ................................. 8, 12

DiLuzio v. Vill. of Yorkville, Ohio,

796 F.3d 604 (6th Cir. 2015) ....................... 24

Firestone Tire & Rubber Co. v. Risjord,

449 U.S. 368 (1981) ..................................... 12

George v. Morris, 736 F.3d 829

(9th Cir. 2013) ............................................. 22

Gregory v. City of Louisville, 444 F.3d 725

(6th Cir. 2006) ............................................. 28

Hurt v. Wise, -- F.3d --, 2018 WL 507595

(7th Cir. Jan. 23, 2018) ............................... 24

Jeffers v. Gomez, 267 F.3d 895

(9th Cir. 2001) ............................................. 25

Johnson v. Fankell, 520 U.S. 911 (1997) ............... 20

Johnson v. Jones, 515 U.S. 304 (1995) ........... passim

iv

Kinney v. Weaver, 367 F.3d 337

(5th Cir. 2004) ............................................. 22

Koch v. Rugg, 221 F.3d 1283

(11th Cir. 2000) ........................................... 22

Lewis v. Tripp, 604 F.3d 1221

(10th Cir. 2010) ........................................... 26

Mallak v. City of Baxter, 823 F.3d 441

(8th Cir. 2016) ............................................. 22

Mitchell v. Forsyth, 472 U.S. 511

(1985) .................................................... passim

Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100 (2009) ......................8, 11, 12, 16

Moldovan v. v. City of Warren, 578 F.3d 351

(6th Cir. 2009) ............................................. 26

Morton v. Kirkwood, 707 F.3d 1276

(11th Cir. 2013) ........................................... 26

Nelson v. Shuffman, 603 F.3d 439

(8th Cir. 2010) ............................................. 25

Ortiz v. Jordan, 562 U.S. 180 (2011) ..................... 20

Penn v. Escorsio, 764 F.3d 102

(1st Cir. 2014) .............................................. 22

Plumhoff v. Rickard, 134 S. Ct. 2012

(2014) .................................................... passim

Rehberg v. Paulk, 566 U.S. 356

(2012) ............................................................. 8

Richardson v. McKnight, 521 U.S. 399

(1997) ........................................................... 20

Richardson–Merrell Inc. v. Koller,

472 U.S. 424 (1985) ..................................... 12

Romo v. Largen, 723 F.3d 670

(6th Cir. 2013) ............................................. 23

Santos v. Gates, 287 F.3d 846

(9th Cir. 2002) ............................................. 28

v

Schieber v. City of Philadelphia,

320 F.3d 409 (3d Cir. 2003) ........................ 25

Scott v. Harris, 550 U.S. 372

(2007) .................................................... passim

Thompson v. Bowie, 71 U.S. 463 (1866) ................ 10

Tolan v. Cotton, 134 S. Ct. 1861 (2014)................. 18

United States v. Nocar, 497 F.2d 719

(7th Cir. 1974) ............................................. 28

Via v. LaGrand, 469 F.3d 618

(7th Cir. 2006) ............................................. 22

Wallingford v. Olson, 592 F.3d 888

(8th Cir. 2010) ............................................. 26

Walton v. Powell, 821 F.3d 1204

(10th Cir. 2016) ........................................... 21

Winfield v. Bass, 106 F.3d 525

(4th Cir. 1997) ............................................. 26

Witt v. W. Va. State Police, Troop 2,

633 F.3d 272 (4th Cir. 2011) ....................... 26

Ziccardi v. City of Philadelphia,

288 F.3d 57 20 (3rd Cir. 2002) .................... 22

STATUTES

28 U.S.C. § 1921 ..................................................... 12

1

STATEMENT OF THE CASE

The Wrongful

Stinson

Conviction

of

Robert

Lee

Robert Lee Stinson spent 23 years

imprisoned for a murder he did not commit. App. 1.

On November 3, 1984, the body of Ione Cychosz

was found raped and murdered with human bite

marks left on her skin. App. 3. No eyewitness saw

the crime and no useable fingerprints existed. App.

1. The only evidence offered to connect Stinson to

the crime was bite mark evidence fabricated by

detective James Gauger and two forensic dentists,

Drs. Lowell Johnson and Raymond Rawson, who

worked with him.

Stinson

maintained

his

innocence

throughout the criminal process. In 2008, the

Wisconsin

Innocence

Project

reinvestigated

Stinson’s case and a panel of four forensic

odontologists concluded that it would have been

impossible for Stinson to have made the bite marks

found on the victim given the differences between

Stinson’s dentition and those bite marks. App. 92.

In addition, DNA from blood found on Ms.

Cychosz’s clothing was tested, revealing an

unknown male profile, which was not Stinson.

App. 9. That unknown profile was later linked to

the actual perpetrator of the crime, Moses Price,

who confessed and was properly convicted. Id.

Prior to his wrongful conviction, Stinson had

never stepped foot inside a prison, and he had not

been convicted of anything other than a

2

misdemeanor for shoplifting hair gel as a juvenile.

Although he will never regain the two decades–

from ages 23 to 46—that he lost, Stinson has

worked hard since his exoneration to obtain an

Associate’s Degree and make up for lost time with

his family.

Petitioners Fabricated Evidence to Connect

Stinson to the Crime

Gauger and his partner, Thomas Jackelen,

investigated the Cychosz murder. They knew who

Stinson was and did not like him. Gauger had

previously tried, unsuccessfully, to frame Stinson

for the murder of a man named Ricky Johnson,

App. 4-5, but his frame-up fell apart because the

only evidence Gauger had inculpating Stinson in

that crime was a coerced and obviously false

witness statements concocted by Gauger. App. 69.

The falsity of that statement became clear, and

Stinson was never charged with the Johnson

homicide. Gauger has admitted, however, that he

believed Stinson got away with murder, and that

he worked in the Cychosz homicide investigation to

make sure that did not happen again. App. 4-5.

After being assigned to the Cychosz

homicide, but before they ever met with Stinson,

Gauger and Jackelen met with one of the dentists,

Dr. Johnson, who showed them a sketch of the

dentition of the suspect, which he made based on

the bite marks. App. 3.1 The sketch showed a

1

Johnson’s and Rawson’s briefs in the Seventh Circuit

omitted the fact of this meeting entirely despite that it was

3

perpetrator who was missing a front tooth. App. 3,

72-73 n. 6. Neither the fact nor substance of this

meeting was ever disclosed to Stinson. App. 3, 7273 & n. 6.2

Gauger and Jackelen later spoke to Stinson

as part of their neighborhood canvas. App. 3-4.

After making Stinson laugh so that they could see

Stinson was missing a front tooth, Jackelen told

Gauger “we have him.” App. 4. Gauger concluded

central to district court’s opinion and the case. App. 18-19.

Petitioner Gauger and Johnson now admit that this meeting

occurred, Gauger Pet. at 3, Johnson Pet. at 3-4, and Gauger

accepts that Johnson provided them a detailed sketch during

the meeting. Gauger Pet. at 3. But, Johnson still ignores the

district court’s factual assumption that Johnson showed a

detailed sketch to Gauger at the pre-interview meeting and

Rawson’s petition still ignores that this meeting ever

occurred. Rawson Pet. at 3-4.

2

In their briefs, the Petitioners assert that Johnson’s

sketch of Stinson’s dentition was in the Milwaukee Police

Department file and disclosed to the prosecution, but it was

not. The sketch in the file is by a police employee, not

Johnson. To be clear, Johnson made his own sketch of the

assailant’s dentition but that sketch was suppressed by the

Petitioners at the John Doe hearing and has never been

produced. App. 3, 72-73 n. 6.

As to the police sketch, Johnson worked with the

police sketch artists, who “made a sketch from my sketch and

visited the office and asked me if this was consistent with

what I had in mind.” App. 5-6. This sketch, like Johnson’s

own sketch, which it was based off of, did not match Stinson’s

dentition, but Johnson dismissed it alternately, as not his

own, based “off of memory” and from “preliminary opinions.”

App. 77.

4

that they had found their man—Stinson was

missing a front tooth. App. id. Gauger’s conclusion

was incorrect. As the district court recognized,

dentist Johnson’s initial sketch conflicted with

Stinson’s dentition in several material ways: the

suspect was missing a tooth (the upper right lateral

incisor) that Stinson was not missing (and vice

versa); the suspect had a “twisted tooth to the side

of the missing tooth,” which Stinson did not have;

and the suspect had a broken lower tooth where

Stinson’s tooth was intact. App. 72-73 n. 6.

After their canvas, Gauger and Jackelen met

with Johnson again. App. 5. Together they

amended Johnson’s findings about the suspect’s

dentition to falsely match Stinson. This fabrication

was significant: it turned the exculpatory fact of

Mr. Stinson’s dentition into false evidence of guilt.

Id.

There is no dispute that the initial meeting

among Gauger, Jackelen and Johnson was

concealed from the prosecution and defense;

Gauger admits that he never disclosed the

existence of this meeting until he wrote his memoir,

years after retiring the Milwaukee Police

Department and decades after Stinson’s wrongful

conviction. The district court correctly recognized

that Petitioners’ concealment of their first meeting,

the differences between their initial description of

the suspect’s dentition and Stinson, their later

fabricated description of the bitemarks as matching

Stinson, and the inference that Johnson changed

his findings only after Gauger and Jackelen settled

5

on Stinson would support a jury finding that

Petitioners conspired to violate Stinson’s right to

due process. App. 75, 108-113.

After Gauger and Jackelen identified

Stinson during their canvas, Assistant District

Attorney Dan Blinka convened a “John Doe”

hearing so that he could subpoena Stinson to court

and Johnson could evaluate his dentition. App. 7879.

At the hearing, Johnson and Gauger

suppressed Johnson’s initial sketch showing that

the suspect’s dentition did not match Stinson. As a

result, Johnson, examined Stinson’s teeth for only

15 to 20 seconds, and was able to testify unimpeded

that it was “remarkable” how closely Stinson’s

teeth matched his sketch, even though that was

untrue. App. 6.

Following the John Doe hearing, Johnson

went to what an expert has categorized as “extreme

efforts” to make it falsely appear as if Stinson’s

dentition fit the bite marks found on the victim.

App. 95. This included: manipulating the dental

overlays; distorting the orientation of the bites; and

asserting that certain of Stinson’s teeth imprinted

on the victim’s body when to do so was either

physically impossible or directly contradicted by

the actual bite marks on Ms. Cychosz’s body. App.

93-95. Finally, Johnson eliminated other suspects

without conducting a workup of their dentitions

based solely on photographs of their mouths. Doing

so had no basis in science and was contrary to

Johnson’s practice and basic standards of forensic

odontology. App. 5, 76.

6

Before approving charges against Stinson,

Blinka wanted a second opinion. App. 7. Johnson

steered Blinka to Rawson, who was a friend and

colleague in Las Vegas. Indeed, at Johnson’s

suggestion, Blinka hired Rawson to provide a

second opinion in the Cychosz case. App. 82-83.

Johnson made the initial contact with Rawson

about the case, and then Gauger and Jackelen flew

the bite mark evidence to Rawson. App. 7. In an

“extremely short time” after coming to in Gauger’s

hotel room, Rawson “took a look at the x-rays and

the molds, and said that was good enough for him

and that he concurred with [Johnson].” Id. All

trained odontologists, including Rawson, know that

an accurate conclusion could not be reached in such

a short amount of time. App. 101. Both the fact that

Rawson’s review was cursory and his quick

agreement to testify were never disclosed to

Stinson. Based on these facts, the district court

concluded that there was sufficient evidence for a

jury to find that Rawson participated in the

conspiracy to frame Stinson. App. 101, 115.

Prior to Stinson’s criminal trial, both

Johnson and Rawson created false expert reports

memorializing their fabricated findings. App. 8.

Johnson and Rawson testified against Stinson at

his criminal trial. Id. The only evidence used to

convict Stinson was Petitioners’ false dental

evidence. App. 1-2, 8-9.

7

Proceedings Below

Petitioners moved for summary judgment,

asserting qualified immunity and testimonial

immunity. App. 2, 10. The district court found

sufficient evidence for Stinson to proceed to trial on

his claims that the Defendants fabricated false

evidence and suppressed material evidence, in

violation of due process. App. 108-119. A panel of

the Seventh Circuit reversed, concluding that there

were no factual disputes in the record that would

require a trial, and ordering the district court to

enter

judgment

against

Stinson

on

his

constitutional claims. App. 64.

The Seventh Circuit granted rehearing en

banc and ruled that under Johnson v. Jones, 515

U.S. 304 (1995), it lacked jurisdiction in a

collateral-order appeal to consider Petitioners’

factual challenges to the district court’s conclusion

that the record presented material disputes of fact

for trial. App. 2. The court observed that

Petitioners were not asking the Court to decide the

appeal based on Stinson’s version of the facts, but

instead were disputing and ignoring key facts that

the district court had relied upon to deny summary

judgment. App. 17-18.

Finally, the Seventh Circuit concluded that

it had jurisdiction to consider the purely legal

question of whether Johnson and Rawson were

entitled to absolute immunity for their testimony at

Stinson’s trial. Consistent with this Court’s

decisions in Buckley v. Fitzsimmons, 509 U.S. 259,

8

273 (1993), and Rehberg v. Paulk, 566 U.S. 356, 370

n.1 (2012), the lower court concluded that Johnson

and Rawson were immune for their testimony, but

not for their suppression and fabrication of

evidence while the murder was being investigated.

App. 25, 102-106.

SUMMARY OF ARGUMENT

The consolidated petitions for certiorari

should be denied. First, the petitions advocate for

an expansion of appellate court jurisdiction that

contradicts: (1) this Court’s decisions in Mitchell v.

Forsyth, 472 U.S. 511 (1985), and Johnson v. Jones,

515 U.S. 304 (1995), which limit qualifiedimmunity appeals to pure questions of law; (2) the

Court’s repeated admonition that the collateralorder doctrine “must never be allowed to swallow

the general rule that a party is entitled to a single

appeal, to be deferred until final judgment has been

entered,” Digital Equipment Corp. v. Desktop

Direct, Inc., 511 U.S. 863, 868 (1994)); and (3) the

rule set out in Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100, 106 (2009), that any expansion of the

appellate jurisdiction must occur through

rulemaking rather than common-law decision.

Petitioners’ proposed distinction between a finding

of fact and a finding of inferences to be drawn from

facts is not workable in practice and requires

exhaustive review of the evidence in a manner that

is not separate from or collateral to the merits of a

case. Indeed, to expand appellate jurisdiction to

provide review of the inferences drawn from facts

during interlocutory appeals would permit

appellate courts in the middle of a case to conduct

9

plenary review of district court determinations

about the sufficiency of the evidence in the

summary judgment record. Neither Congress nor

this Court’s decisions confer such jurisdiction.

Second, the Petitioners allege that certiorari

is necessary to remedy purported “circuit chaos”

over competing interpretations of Johnson v. Jones,

515 U.S. 304 (1995). But no such chaos or confusion

exists. Johnson limited appellate jurisdiction in

qualified-immunity appeals to purely legal

questions, and it made clear that appellate courts

lack jurisdiction to second guess a district court’s

finding that there is sufficient evidence in the

summary judgment record for a trial. 515 U.S. at

313. Johnson is this Court’s leading case on the

scope of appellate jurisdiction, and the Court’s later

decisions in Scott v. Harris, 550 U.S. 372 (2007),

and Plumhoff v. Rickard, 134 S. Ct. 2012 (2014),

confirm Johnson’s holding. No court of appeals has

read these cases as expanding the basic principles

of appellate jurisdiction established in Johnson.

In order to avoid this clear authority, the

Petitioners attempt to re-cast their factual

challenges to the district court’s decision by arguing

that the trial court made findings that are “legally

impermissible.” See, e.g., Gauger Pet. at 20-21. But

calling a factual inference “legally impermissible”

does not transform that fundamentally factual

question into a purely legal one. A district court’s

conclusions about facts in the record and the

reasonable inferences a jury might draw from those

facts fall on the fact side of “the law-fact divide.”

10

Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009)

(discussing Johnson’s holding that only legal

questions satisfy as “final” for purposes of the

collateral order doctrine).

Third, the jurisdictional rule that the

Petitioners’ propose is completely unworkable.

They suggest that while courts could not exercise

jurisdiction to consider appeals challenging the

sufficiency of evidence in the summary judgment

record, they could exercise jurisdiction when the

appeal challenged the district court’s inferences

drawn from evidence (and invent the new term

“legally impermissible” to do so). But inferences

drawn from facts are factual determinations that

are not distinct from other types of factual

determinations. This Court has long held that

circumstantial evidence—evidence that gives rise to

inferences—can be used to prove legal claims,

including the conspiracy claims at issue here.

Thompson v. Bowie, 71 U.S. 463, 473 (1866). It is

therefore impossible to craft a jurisdictional rule

that confers jurisdiction over disputes about

inferences but not over factual disputes. And, any

such rule would require appellate courts to delve

into the disputed record and consider all of the

evidence as a whole.

Fourth, the Court should deny the petitions

because they are fact-bound challenges to a district

court opinion that present a poor case in which to

consider the limits of appellate jurisdiction.

11

For all of the foregoing reasons, the Court

should deny certiorari.

ARGUMENT

A. This Court’s Cases Establish That the

Qualified-Immunity Appeals Falling

Within the Collateral Order Doctrine

Are

Limited

to

Purely

Legal

Questions

Petitioners ask this Court to grant certiorari

to overrule existing, long-established precedent.

Worse yet, their proposed alternative jurisdictional

rule—which would allow for interlocutory review of

the sufficiency of factual inferences—would turn

the collateral order doctrine on its head and require

this court to expand appellate jurisdiction outside

of the rulemaking process.

The petitions fall within the “small class” of

collateral order appeals. Cohen v. Beneficial Indus.

Loan Corp., 337, U.S. 541, 545-46 (1949). Mitchell

extended Cohen’s collateral order doctrine to

denials of qualified immunity. 472 U.S. at 530. The

following term, the Court made clear that

successive qualified immunity appeals are

permissible, but only to the extent that the denial

“turns on an ‘issue of law.’” Behrens v. Pelletier, 516

U.S. 299, 311 (1996) (quoting in part Mitchell, 472

U.S. at 530). In Mohawk Industries, the Court’s

most recent decision on the scope of collateral order

appeals, this Court repeated its “healthy respect for

the virtues of the final-judgment rule” explaining

12

that “[p]ermitting piecemeal, prejudgment appeals,

we have recognized, undermines ‘efficient judicial

administration’

and

encroaches

upon

the

prerogatives of district court judges, who play a

‘special role’ in managing ongoing litigation.”

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,

106-07 (2009) (quoting in part Firestone Tire &

Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)); see

also Richardson–Merrell Inc. v. Koller, 472 U.S.

424, 436 (1985) (“[T]he district judge can better

exercise [his or her] responsibility [to police the

prejudgment tactics of litigants] if the appellate

courts do not repeatedly intervene to second-guess

prejudgment rulings”). Further, “[i]n applying

Cohen’s collateral order doctrine, [the Court has]

stressed that it must never be allowed to swallow

the general rule that a party is entitled to a single

appeal, to be deferred until final judgment has been

entered.” 558 U.S. at 106 (quoting in part Digital

Equipment Corp., 511 U.S. at 868 (citation

omitted)).

That legal backdrop is important here

because Petitioners propose a radical expansion of

the scope of appellate court jurisdiction for

qualified immunity appeals. Petitioners’ proposal

would violate Cohen and Mohawk Industries and

overturn this Court’s decisions in Mitchell and

Johnson, which properly balanced the protection

qualified immunity affords public officials to be

protected from both liability and “standing trial”,

Johnson, 515 U.S. at 312, with the final order

requirement of 28 U.S.C. § 1921.

13

This Court gave careful consideration to the

competing principles of immunity and the final

order rule in both Mitchell and Johnson and struck

the appropriate balance by limiting interlocutory

appeals to legal issues and prohibiting review of

the sufficiency of the evidence because such appeals

are not separate from or collateral to the merits.

Mitchell held that a denial of qualified immunity

satisfied Cohen’s “collateral order” requirements to

justify immediate appeal where “(1) the defendant

was a public official asserting a defense of ‘qualified

immunity,’” and (2) the issue appealed concerned

whether a given set of facts showed a violation of

‘clearly established’ law as opposed to which facts

the parties might be able to prove at trial. 515 U.S.

at 311 (citing Mitchell, 472 U.S. at 528). Mitchell

explicitly limited its holding to appeals raising “the

purely legal issue of what law was ‘clearly

established.’” Id. at 313. Mitchell explained that

qualified immunity appeals are separate from the

merits 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. (quoting, Mitchell, 472 U.S.

at 528).

After Mitchell, the circuits split on whether

appellate courts had jurisdiction over qualified

immunity appeals that challenged the sufficiency of

the evidence.

515 U.S. 308-09. Johnson

unambiguously and unanimously settled that

question, holding that appellate courts lacked

jurisdiction

to

review

a

district

court’s

14

determination that sufficient evidence exists to

proceed to trial. Id. at 319-320.

Johnson again carefully considered the

competing underlying principles of the final order

doctrine and immunity for public officials in

reaching its holding that no jurisdiction exists for

qualified immunity appeals that seek review of a

district court’s sufficiency of the evidence

determination. 515 U.S. at 319-20. The Court

provided three reasons for its ruling. First, Mitchell

had limited its holding to extend the collateral

order doctrine to qualified immunity appeals to

only purely legal questions. Id. at 313. Second,

Cohen’s immediate appealability requirement

necessitates that the issue be separate from the

merits, and Mitchell “rested upon the view that ‘a

claim of immunity is conceptually distinct from the

merits of the plaintiff’s claim.’” Id. at 514 (quoting

in part, Mitchell, 472 U.S. at 527). By contrast,

where:

a defendant simply wants to appeal a

district court’s determination that the

evidence is sufficient to permit a

particular finding of fact after trial, it

will often prove difficult to find any

such “separate” question—one that is

significantly different from the factrelated legal issues that likely

underlie the plaintiff's claim on the

merits.

515 U.S. at 314. Johnson correctly observed that

to take what the petitioners described as a “small

15

step” to expand jurisdiction over sufficiency of the

evidence appeals, would be not be small. Instead,

such an expansion would “do more than relax the

separability requirement—it would in many cases

simply abandon it.” 515 U.S. 315. Third, Johnson

balanced the competing considerations of “avoiding

the cost and expense of piecemeal review on the one

and hand and the danger of denying justice by

delay on the other,” and concluded that “immunity

appeals interfere less with the final judgment rule

if they [are] limited to cases presenting neat

abstract issues of law.” 515 U.S. at 318.

The term after it was decided, Behrens

reaffirmed Johnson :

Johnson

held,

simply,

that

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 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. Johnson

reaffirmed that summary judgment

determinations are appealable when

they resolve a dispute concerning an

abstract issu[e] of law relating to

16

qualified immunity,

issue whether the

allegedly infringed

established. . . .”

typically, the

federal right

was “clearly

Behrens, 516 U.S. at 313 (citations omitted).

Johnson has not been undermined or abrogated in

any of the Court’s subsequent decisions.

Despite Johnson’s good standing, Petitioners

propose to abandon it. To create jurisdiction over

the district courts’ sufficiency of the facts

determinations, Petitioners seek a rule that would

expand the collateral order doctrine to matters that

are inextricably intertwined with the merits. All an

appellant need do is frame the issue as a challenge

to the factual inferences made by the district

court—as apparently contrasted to the facts

themselves. Not only would such a rule contradict

Cohen, but adopting such a rule would require

overturning Mitchell and Johnson.3 Petitioners are

asking for an expansion of appellate court

jurisdiction that has never before been recognized.

Any such expansion should be done through the

rule making process not by common law decision.

Mohawk, 558 U.S. at 106.

3

Petitioners proposed rule would also expand the scope

of qualified immunity appeals at the motion to dismiss phase.

This Court’s established precedents require courts to draw

the reasonable (plausible) inferences from the factual content

pleaded in complaint. E.g., Iqbal, 556 U.S. at 678. Defendants

could successfully appeal the denial of qualified immunity

anytime they simply raise the issue of the inference the

district court relied upon in denying a motion to dismiss.

17

According to the Petitioners, a deviation

from the Court’s well-established jurisprudence is

warranted by the Court’s decisions in Scott and

Plumhoff, but as explained below, Petitioners’

interpretation of those cases is belied by the cases

themselves and has not been adopted by any

appellate court, much less endorsed by this Court.

B. The Rule of Johnson v. Jones Was

Confirmed by Scott v. Harris And

Plumhoff v. Rickard

Contrary to Petitioners’ assertions, Johnson,

is still the law and it has not been undermined by

this Court’s subsequent decisions in Scott v. Harris,

550 U.S. 372 (2007) or Plumhoff v. Rickard, 134 S.

Ct. 2012 (2014). To the contrary, both Scott and

Plumhoff re-affirm Johnson’s jurisdictional limits.

In Scott, the Court addressed the questions

of whether officers’ conduct violated the Fourth

Amendment in a case where a portion of the police

pursuit was captured on videotape. 550 U.S. 37478. Scott held that if the plaintiff’s version of the

facts is “blatantly contradicted by the record, so

that no reasonable jury could believe it, a court

should not adopt that version of the facts for

purposes of ruling on a motion for summary

judgment.”

550 U.S. 380. In doing so, Scott

followed Johnson by only reviewing the legal issues

presented by the uncontroverted record—including

the uncontested videotape of the pursuit—in that

18

case. Scott did not mention Johnson or alter its

jurisdictional holding in any way.4

Similarly, in Plumhoff, the Court addressed

the legal question of whether the Fourth

Amendment was violated in the context of another

high-speed car chase. 134 S.Ct. at 1017-19. Like

Scott, the Court followed Johnson and found

jurisdiction to review only the legal questions of

whether the evidence, taken in the light most

favorable to the plaintiff, amounted to a Fourth

Amendment violation, and if so, whether the law

was clearly established. Id. at 2019 (“The District

Court order in this case is nothing like the order in

Johnson. Petitioners do not claim that other

officers were responsible for shooting Rickard;

rather, they contend that their conduct did not

violate the Fourth Amendment and, in any event,

did not violate clearly established law.”). Plumhoff

re-affirmed that reviewing the sufficiency of the

evidence is not a legal issue; that doing so is often

4

Scott also affirmed that “[w]hen [a case is decided on

summary judgment and there have not yet been factual

findings by a judge or jury], courts are required to view the

facts and draw reasonable inferences in the light most

favorable to the party opposing the [summary judgment]

motion. In qualified immunity cases, this usually means

adopting ... the plaintiff’s version of the facts.” 550 U.S. at 378

(second alteration in original) (citation and internal quotation

marks omitted)); see also Tolan v. Cotton, 134 S. Ct. 1861,

1866 (2014) (Our qualified-immunity cases illustrate the

importance of drawing inferences in favor of the nonmovant . .

. .”).

19

intertwined with determinations a trial court

makes later in a case; and that appellate courts

have “no comparative expertise” to review the

sufficiency of the evidence. 134 S. Ct. at 2019

(citing Johnson, 515 U.S. at 309-10 & 314).

Nothing in this Court’s opinions in Scott or

Plumhoff support the Petitioners’ interpretation of

Johnson to suggest that appellate courts should

start wading into reviewing the factual inferences

district courts draw from the undisputed factual

record at summary judgment. The only even

arguable adjustment after Scott is that for the

errant case in which the appellate court finds that

unchallengeable evidence “blatantly contradicts”

the plaintiff’s version of the facts. In those rare

cases, Scott instructs that appellate courts need not

give credence to an unreliable version of the facts

that no reasonable jury could rely upon. 550 U.S.

at 380-81.

The Seventh Circuit’s en banc opinion in this

case correctly applied Scott and Plumhoff. App. 1415. In Scott, “the question on appeal was the

constitutionality of the officer’s conduct in light of

the facts depicted on the unchallenged videotape.

So review was of the district court’s decision on an

issue of law, not of whether there was a genuine

issue of fact for trial.” App. 14. And, the same was

true in Plumhoff where the Court “decided a purely

legal issue, not a question of the sufficiency of the

evidence.” App. 15.

20

Indeed, notwithstanding the Petitioners’

attempt to argue otherwise, the Seventh Circuit

observed that “[n]o Supreme Court decision has

criticized Johnson; to the contrary, the Court

continues to rely on it post-Harris.” App. 15 (citing

Plumhoff, 134 S.Ct. at 2018–19; Ashcroft v. Iqbal,

556 U.S. at 671, 673–74; Ortiz v. Jordan, 562 U.S.

180, 188–91 (2011)); see also Ortiz 562 U.S. at 190

(describing qualified immunity appeals that raise

legal issues as those that “typically involve contests

not about what occurred, or why an action was

taken or omitted, but disputes about the substance

and clarity of pre-existing law” (citing Behrens, 516

U.S. at 313 and Johnson, 515 U.S. at 317)). “Nor

has the Court disavowed its pre-Harris reliance on

Johnson in multiple cases.” App. 15 (citing Behrens,

516 U.S. at 312-13; Johnson v. Fankell, 520 U.S.

911, 922 (1997); Crawford-El v. Britton, 523 U.S.

574, 595, 597 n.18 (1998); Richardson v. McKnight,

521 U.S. 399, 402 (1997)).

In short, Johnson is still the law of the land

despite Petitioners’ desire to see if overturned.

C. No Circuit Split Exists About The

Jurisdictional Limits Set Out In

Johnson v. Jones

Just as the Seventh Circuit found, there is

no split among the circuits about the clear limits

that Johnson places on appellate jurisdiction. Nor

is there a circuit “chaos” over the application of

Johnson; that notion is an invention of the

Petitioners’ making. Indeed, no court has adopted

21

the Petitioners’ extension of appellate jurisdiction

to review district court’s inferential finding of facts.

Petitioners allege that two competing

interpretations of Johnson—a narrow and broad

interpretation—have been adopted by panels

within and among all the circuits. In their

taxonomy, Petitioners have labeled as the “broad

interpretation” of Johnson, the straightforward

application of its holding that no appellate

jurisdiction exists to review the district court’s

factual findings, as well as the reasonable

inferences drawn from those facts. Gauger Pet. at

14. Petitioners label their favored interpretation of

Johnson as the “narrow interpretation” because it

would permit appellate courts to review the factual

inferences district courts rely upon in denying

qualified immunity. Gauger Pet. at 14. Petitioners

have cleverly framed their favored interpretation of

Johnson as the “narrow interpretation,” but to be

clear the proposed interpretation they advocate

here would work a staggering expansion of the

collateral order doctrine: Appellate jurisdiction

would vest to review qualified immunity appeals

whenever an inference from fact is necessary to

determine if a constitutional violation occurred.

No court has adopted their taxonomy or the

rule they advocate. Rather, all appellate courts

reviewing qualified immunity appeals in Johnson’s

wake have applied its law-fact jurisdictional divide

without deviation. See, e.g., Walton v. Powell, 821

F.3d 1204, 1209–10 (10th Cir. 2016) (Gorsuch, J.)

(“Under Johnson, it is for the district court to tell

22

us what facts a reasonable jury might accept as

true. But under Plumhoff, it is for this court to say

whether those facts, together with all reasonable

inferences they permit, fall in or out of legal

bounds—whether they are or are not enough as a

matter of law to permit a reasonable jury to issue a

verdict for the plaintiff under the terms of the

governing legal test for causation or any other legal

element.”) (emphasis added); Mallak v. City of

Baxter, 823 F.3d 441, 446 (8th Cir. 2016) (Scott

and Plumhoff did not alter jurisdictional holding

that no appellate jurisdiction exists to review the

sufficiency of the evidence in case where defendants

argued record lacked evidence of improper motive);

Penn v. Escorsio, 764 F.3d 102, 106 & n.2 (1st Cir.

2014); George v. Morris, 736 F.3d 829, 835 (9th Cir.

2013) (rejecting the argument that Scott altered

Johnson and its progeny on scope of appellate

jurisdiction); Via v. LaGrand, 469 F.3d 618, 624

(7th Cir. 2006); Kinney v. Weaver, 367 F.3d 337,

346 (5th Cir. 2004) (en banc); Ziccardi v. City of

Philadelphia, 288 F.3d 57, 62 (3d Cir. 2002)

(rejecting the argument that Johnson did not apply

to disputes about intent as opposed to conduct and

holding that Johnson’s jurisdictional boundaries

“clearly applies to factual disputes about intent, as

well as conduct.”); Koch v. Rugg, 221 F.3d 1283,

1297 (11th Cir. 2000) (interpreting Johnson and

Behrens to find no jurisdiction over appeal in racial

discrimination case where defendants appeal was

sufficiency of the evidence in the record to infer

discriminatory intent “which is prototypically a

factual determination derived from circumstantial

evidence by the trier of fact”).

23

Because no Circuit divide, let alone “chaos,”

exists in the application of Johnson, Petitioners

base their position relying, almost exclusively, on a

single concurrence in Romo v. Largen, 723 F.3d 670

(6th Cir. 2013); a position the majority rejected and

no other circuit has adopted. In addressing the

concurrence, the Romo majority explained that:

“[r]elying on Scott v. Harris, 550 U.S.

372 [] and policy considerations, the

concurrence suggests a “reading” of

Johnson under which defendants may

generally challenge on interlocutory

appeal a district court’s determination

that the summary judgment standard

has been met with respect to factual

inferences (although, in concept at

least, not to facts that underlie such

inferences). Such an approach is

facially contradicted by the Supreme

Court’s instructions in Johnson to

‘take, as given, the facts that the

district court assumed when it denied

summary judgment’ and, when that is

unclear, to ‘determine what facts the

district court ... likely assumed.’

Johnson, 515 U.S. at 319 []. The Court

considered

and

dismissed

the

criticisms of this approach that the

concurrence raises. See id.

Id. at 675. Not only has the Sixth Circuit repeated

its rejection of the specific argument petitioners

24

make here, see, e.g., DiLuzio v. Vill. of Yorkville,

Ohio, 796 F.3d 604, 609 (6th Cir. 2015) (discussing

Romo, 723 F.3d at 673-74), but the Seventh Circuit

has likewise

considered Petitioners’ specific

argument and rejected it as contrary to Johnson.

Hurt v. Wise, -- F.3d --, 2018 WL 507595, at *5 (7th

Cir. Jan. 23, 2018) (Wood, J.), petition for rehearing

filed (rejecting the defendants’ argument to “revisit

the inferences that the district court found could

reasonably be drawn from [the plaintiffs’] recorded

interrogation” because to do would go “beyond our

jurisdiction on this interlocutory appeal [and]

[n]othing in Scott undermines this point.”).

Nor does the distinction between a fact and

inference from a fact make sense. At some level,

every fact is inferential. For example, whether to

accept a witness’s statement that a light was green

turns on an inference of whether the witness could

see the light from her vantage point. Likewise,

whether to conclude that a defendant intended a

certain result of his actions turns on inferences

about the likelihood of such a result based on all of

the circumstances surrounding his actions,

including, for example, whether his actions were

consistent with his ordinary practice. And whether

a witness is accurately recalling certain events

turns on inferences about the state of the witness’s

memory. As these examples demonstrate,

inferences are at play even in the most basic facts

that can be in contention.

For additional support, Petitioner Gauger

provides a string cite of cases that he claims

25

adopted the “narrow interpretation” of Johnson,

Pet. Gauger at 14. But except for the concurring

opinion in Romo, none of the cited authorities

adopted this so-called “narrow” view. In fact, many

of the cases applied the straightforward, “broad”

application of Johnson in which appellate courts

review only legal issues and in doing so rely on the

facts the district court credited and reasonable

inferences derived therefrom. See, e.g., Anderson v.

Cornejo, 355 F.3d 1021, 1023 (7th Cir. 2004)

(emphasis added) (“Thus it is possible, consistent

with Johnson, to cover the question whether the

plaintiffs have a good legal theory as well as the

immunity defense; but, as Johnson and Saucier

hold, [] this must be done by taking the evidence and

reasonable inferences in plaintiffs’ favor.”)

(emphasis added); Schieber v. City of Philadelphia,

320 F.3d 409, 415 (3d Cir. 2003) (“[W]here the

District Court has adopted a set of facts for the

purpose of ruling on the qualified immunity issue,

we must accept those facts when reviewing a denial

of immunity.”); Brown v. Callahan, 623 F.3d 249,

255 (5th Cir. 2010) (assuming the district court’s

facts and inferences from those facts, the court

found as question of law that the elements for

deliberate indifference were not satisfied); Nelson v.

Shuffman, 603 F.3d 439, 446 (8th Cir. 2010) (“Our

review is limited to determining whether the

official is entitled to qualified immunity based on

the summary judgment facts as described by the

district court.”); Jeffers v. Gomez, 267 F.3d 895,

905–06 (9th Cir. 2001) (“From Behrens and its

progeny we conclude that we may consider the legal

question whether, taking all facts and inferences

26

therefrom in favor of the plaintiff, the defendant

nevertheless is entitled to qualified immunity as a

matter of law.”); Morton v. Kirkwood, 707 F.3d

1276, 1280 (11th Cir. 2013) (rejecting a Scott claim

that

the

uncontroverted

record

blatantly

contradicted plaintiff’s version of facts in high

speed car chase).5

The appellate courts are not confused on this

issue and the Court should deny the petition.6

5

Several of Petitioners’ “narrow interpretation” cases

were cases that dealt with situations where the district court

failed to identify the facts on which its qualified immunity

decision was based, so the appellate court, per this Court’s

instruction in Behrens, 516 U.S. at 312-13, had to review the

factual record ab initio to determine the facts in the light

most favorable to the plaintiff that supported the district

court’s decision. See Gauger Pet. at 14 (citing Lewis v. Tripp,

604 F.3d 1221, 1226 (10th Cir. 2010); Winfield v. Bass, 106

F.3d 525, 533 (4th Cir. 1997)). Those cases are not applicable

here were the district court identified the facts it assumed for

its denial of qualified immunity.

The Petitioners also raised the issue of how appellate

courts have interpreted Scott where there are allegations that

plaintiff’s version of the facts is “blatantly contradicted” by

undisputable evidence in the record. See Gauger Pet. at 17-18

(contrasting the Third and the Tenth Circuit’s decisions

Moldovan v. v. City of Warren, 578 F.3d 351 (6th Cir. 2009)

and Lewis v. Tripp, 604 F.3d 1221, 1225-26 (10th Cir. 2010)

with the Fourth, Eighth, and Eleventh Circuits in Witt v. W.

Va. State Police, Troop 2, 633 F.3d 272, 277 (4th Cir. 2011),

Wallingford v. Olson, 592 F.3d 888, 892 (8th Cir. 2010),

Morton v. Kirkwood, 707 F.3d 1276, 1284-85 (11th Cir. 2013)).

Even were this Court was inclined to clarify Scott on this

point, this case is not the vehicle to do so because there is no

issue of whether Mr. Stinson’s version of the facts is blatantly

6

27

D. Petitioners’ Proposed Legal Rule Is

Unworkable

The petitions should be denied because there

is no legal rule that could be fashioned to separate

qualified immunity appeals that challenge the

sufficiency of the factual inferences a district court

relied upon from the sufficiency of the facts from

which the inferences were drawn. It strains the

even the most creative legal imagination to

contemplate a rule that appellate courts could

implement to narrowly slice their jurisdiction in

this manner.

Rather, to do so would squarely overrule

Johnson because it would essentially permit

appellate review of the sufficiency of the evidence

in many, if not most, constitutional tort cases.

Many constitutional torts are regularly determined

based on inferences from the factual record or on

circumstantial evidence. Conspiracy claims are a

classic example; conspirators almost never

announce that they are conspiring. See, e.g.,

Thompson, 71 U.S. at 473 (“It is seldom that a

fraud or conspiracy to cheat can be proved in any

other way than by circumstantial evidence, as

knaves have usually sufficient cunning to have no

witnesses present who can testify directly to their

fraudulent contrivances.”). Instead, to prove a

conspiracy, a litigant must present facts and

reasonable inferences from facts that allow a trier

of fact to reach a conclusion that a conspiracy

contradicted by some other uncontroverted evidence in the

record.

28

occurred. See, e.g., Adickes v. S. H. Kress & Co., 398

U.S. 144, 158 (1970) (reversing grant of summary

judgment in civil rights conspiracy claim because

court found based on facts in record “it would be

open to a jury, in light of the sequence that

followed, to infer from the circumstances that the

policeman and a Kress employee had a ‘meeting of

the minds’ and thus reached an understanding that

petitioner should be refused service.”) (emphasis

added). Similarly, any constitutional tort that

requires a showing of motive or intent, such as

malice in the malicious prosecution context or

fabrication of evidence is often proved through

inferences. See, e.g., Gregory v. City of Louisville,

444 F.3d 725, 744 (6th Cir. 2006) (evidence of

fabrication by forensic examiner’s report could be

“reasonably infer[ed]” from evidence that forensic

examiner’s findings were “far afield of what any

reasonable forensic examiner would find from the

evidence” in malicious prosecution case); United

States v. Nocar, 497 F.2d 719, 725 (7th Cir. 1974)

(“As courts have frequently pointed out, knowledge

and intent must often be proven by circumstantial

evidence.”). Even excessive force cases involve a

district court making factual inferences on the

intent the officer had at the time. See, e.g.,

Abdullahi v. City of Madison, 423 F.3d 763, 773

(7th Cir. 2005) (reasonableness inquiry in excessive

force cases “nearly always requires a jury to sift

through disputed factual contentions, and to draw

inferences therefrom,”) (quoting Santos v. Gates,

287 F.3d 846, 853 (9th Cir. 2002)). In fact, Johnson

itself involved a district court’s inference from

“circumstantial evidence” that there was sufficient

29

evidence in the record that the three defendants

had beaten or been present while the other two

defendants had beaten the plaintiff. 515 U.S. at

307-308 (“[T]he court held that there was ‘sufficient

circumstantial evidence supporting [Jones’] theory

of the case.”). Yet, the Supreme Court declined to

review these inferences, finding instead that

appellate jurisdiction was lacking because the

challenge was to the sufficiency of the evidence. Id.

at 313.

If the Petitioners’ framework were adopted,

any time a plaintiff alleged conspiracy, fabrication,

malicious prosecution, discrimination, excessive

force, or any time a Circuit required a particular

mens rea under Section 1983, de novo appellate

review of a district court’s summary judgment

ruling would become available. What Petitioners

propose here is far from the narrow scope of the

collateral order doctrine Cohen and its progeny

intended.

To be clear, what Petitioners are proposing is

something very different from the Court’s decisions

in Harris and Plumhoff. Were Petitioners following

Johnson, Harris, and Plumhoff, they would be

seeking review of whether, as a legal matter, the

facts on which the district court relied and the

reasonable inferences drawn from them constitute

a constitutional violation of clearly established law.

Instead, Petitioners would like the appellate court

to have jurisdiction to go a step back in the process

and reweigh the evidence supporting certain

factual inferences that the district court found were

30

reasonable in light of the entire record. Specifically,

Petitioners would like review of the reasonable

inferences from all the evidence in the record that

Petitioners fabricated the bitemark evidence,

withheld evidence of their doing so and the

circumstantial evidence the district court credited

to find that the petitioners reached an agreement

to conspire.

To invite lower courts to engage in this kind

of review will open wide qualified immunity

appeals to what is effectively de novo review of the

evidence in qualified immunity appeals.

E. The Petitions Are Fact-Bound And

The Court Should Deny Certiorari

These petitions really involve a simple

contest of the facts. Petitioners challenge the

district court’s determination that when viewing

the entire record in the light most favorable to

Stinson, sufficient evidence exists to support

Stinson’s claims that Petitioners conspired together

to fabricate evidence of his guilt and that they

withheld Brady evidence from him in violation of

his due process rights.

What these petitions seek is for another

court to re-review the district court’s determination

that sufficient evidence exists to submit the factual

questions to a jury. That is evident from the

Petitioners appeals in the Seventh Circuit, in which

they gave lip service to the correct legal standard

31

and then proceeded to contest or completely ignore

key factual assumptions “despite the centrality of

them to the district court’s analysis and Stinson’s

fabrication and Brady claims.” App. 19. Petitioners

factual challenges included both the fact of the

initial meeting among Johnson, Gauger and

Jackelen, and the attendant contents of that

meeting (notwithstanding the fact that Gauger

admits it occurred and was not disclosed until long

after Stinson’s wrongful conviction); and the fact

that Dr. Johnson had reached out first to Dr.

Rawson in its analysis with Petitioner Gauger.

App. 20. Petitioners’ failure to acknowledge, let

alone credit Stinson’s version of the facts, which the

district court had properly credited, revealed that

instead of presenting “legal questions,” the appeal

was really an attempt to back-door a sufficiency of

the evidence challenge. Similarly, the en banc

dissent used the correct legal vernacular in its

opinion, stating that it was accepting all the facts

in the light most favorable to Stinson, but then

proceeded to make its own assessment of the

district court’s factual inferences, also ignoring

other record evidence when doing so. App. 35-37.

This is precisely the sort of fact-bound, sufficiency

of the evidence inquiry that this Court should not

seek to wade into.

CONCLUSION

For the reasons set forth above, the Court

should deny the petitions for certiorari.

32

Respectfully submitted,

MICHAEL KANOVITZ

Counsel of Record

GAYLE HORN

HEATHER LEWIS DONNELL

STEVEN ART

Loevy & Loevy

311 N. Aberdeen St.

3rd Floor

Chicago, IL 60607

(312) 243-5900

mike@loevy.com