Petition for Writ of Certiorari — Donna Chisesi, Administratrix of the Estate of Jonathon Victor, Deceased, Petitioner v. Matthew Hunady, et al.

No. 24IN THE

Supreme Court of the United States

_____________

DONNA CHISESI,

v.

Petitioner,

MATTHEW HUNADY, HUEY “HOSS” MACK, JR.,

_____________

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

JACK SAMUEL TENENBAUM

NORTHWESTERN BLUHM

LEGAL CLINIC

COMPLEX CIVIL LITIGATION

AND INVESTOR

PROTECTION CENTER

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-4808

JEFFREY T. GREEN*

TOBIAS S. LOSS-EATON

DANIELLE HAMILTON

THE CARTER G. PHILLIPS/

SIDLEY AUSTIN LLP

SUPREME COURT CLINIC

NORTHWESTERN PRITZKER

SCHOOL OF LAW

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-1486

jeff@greenlawchartered.com

Counsel for Petitioner

November 8, 2024

* Counsel of Record

QUESTIONS PRESENTED

After a police officer fatally shot Jonathan Victor,

Victor’s estate sued the officer and his supervisor,

Sherriff Huey Mack, under 42 U.S.C. § 1983. The claim

against Mack was based on his failure to train the officer on how to deal safely with injured people who

show signs of an altered state of mind. The district

court held that genuine factual issues precluded summary judgment for Mack on qualified-immunity

grounds, but the Eleventh Circuit reversed.

The questions presented are:

1. Whether, on a defendant’s interlocutory appeal

asserting qualified immunity, a court of appeals can

decide whether any genuine factual disputes exist.

2. Whether qualified immunity should be abrogated or restricted to its common-law origins.

(i)

ii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioner is Donna Chisesi, as independent administratrix of the estate of Jonathan Victor.

Respondents are Matthew Hunady and Huey “Hoss”

Mack, Jr.

There are no corporate parties involved in this case.

iii

RULE 14.1(b)(iii) STATEMENT

This case arises from the following proceedings in

the United States District Court for the Southern District of Alabama and the United States Court of Appeals for the Eleventh Circuit:

Chisesi v. Hunady, 2024 WL 1638587, No. 21-11700

(11th Cir. Apr. 16, 2024), reh’g en banc denied, No. 2111700 (July 11, 2024).

Chisesi v. Hunady, 2021 WL 2099580, No. 19-0221C (S.D. Ala. Apr. 19, 2021).

A petition for a writ of certiorari has been filed on

behalf of Matthew Hunady arising from the proceedings below:

Hunady v. Chisesi, No. 24-406 (docketed October 11,

2024).

No other proceedings in state or federal trial or appellate courts, or in this Court, directly relate to this

case.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

i

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ...........................................

ii

RULE 14.1(b)(iii) STATEMENT ........................

iii

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

vi

PETITION FOR A WRIT OF CERTIORARI ......

1

OPINIONS AND ORDERS BELOW ..................

1

STATEMENT OF JURISDICTION ....................

1

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ........................................

1

INTRODUCTION ................................................

2

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

5

I. Factual Background .....................................

5

II. Procedural Background ...............................

7

REASON FOR GRANTING THE PETITION ....

9

III. The Eleventh Circuit Is An Outlier On The

Scope Of Appellate Jurisdiction In Interlocutory Qualified-Immunity Appeals .............

9

A. Most Critiques Reject Interlocutory Review of genuine factual disputes ............

9

B. The Eleventh Circuit reviews genuine

factual disputes on interlocutory appeal.

.................................................................

12

C. The Eleventh Circuit’s approach is

wrong .......................................................

13

IV. Qualified Immunity Should Be Abrogated

Or Pared Back To Its Common-Law Roots.

15

v

D. Qualified Immunity Should Be Abrogated Because § 1983 Was Intended To

Abolish Common-Law Defenses .............

16

E. Qualified Immunity Should be Pared

Back To Its Common Law Roots ............

17

V. The Questions Presented Are Important

And Recurring ..............................................

19

CONCLUSION ....................................................

20

TABLE OF APPENDICES

APPENDIX A: Opinion, Chisesi v. Hunady, No.

21-11700, 2024 WL 1638587 (11th Cir. Apr. 16,

2024) ..................................................................

1a

APPENDIX B: Order, Chisesi v. Hunady, No. 19cv-0221-C, 2021 WL 2099580 (S.D. Ala. Apr.

19, 2021) ............................................................ 17a

APPENDIX C: Order Denying Reh’g and Reh’g

En Banc, No. 21-11700 (11th Cir. July 11,

2024) .................................................................. 48a

vi

TABLE OF AUTHORITIES

CASES

Page

Adams v. Blount Cnty., 946 F.3d 940 (6th

Cir. 2020) ...................................................

10

Behrens v. Pelletier, 516 U.S. 299 (1996) ... 4, 9, 15

Brown v. Strain, 663 F.3d 245 (5th Cir.

2011) ..........................................................

10

Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir.

1996) ..........................................................

12

Dempsey v. Sheriff, Bay Cnty., No. 2310825, 2024 WL 95441 (11th Cir. Jan. 9,

2024) ..........................................................

13

Dilley v. Domingue, 118 F.4th 671 (5th Cir.

2024) ..........................................................

10

Est. of Anderson v. Marsh, 985 F.3d 726 (9th

Cir. 2021) ...................................................

11

Garcia v. Orta, 47 F.4th 343 (5th Cir. 2022)

10

Johnson v. Clifton, 74 F.3d 1087 (11th Cir.

1996) ..........................................................

14

Johnson v. Jones, 515 U.S. 304 (1995) ........ 9, 14

Kisela v. Hughes, 138 S. Ct. 1148 (2018).....

17

Nelson v. Tompkins, 89 F.4th 1289 (11th

Cir. 2024), cert. denied, No. 23-1374, 2024

WL 4426712 (U.S. Oct. 7, 2024) ............... 3, 12

Price v. Montgomery Cnty., 144 S. Ct. 2499

(2024) ......................................................... 4, 16

Rogers v. Jarrett, 63 F.4th 971 (5th Cir.),

cert. denied, 144 S. Ct. 193 (2023) ............

17

Stewardson v. Biggs, 43 F.4th 732 (7th Cir.

2022) ..........................................................

11

Valdez v. Macdonald, 66 F.4th 796 (10th

Cir. 2023) ............................................ 3, 12, 13

Zadeh v. Robinson, 928 F.3d 457 (5th Cir.

2019) ..........................................................

18

Ziglar v. Abbasi, 582 U.S. 120 (2017) .......... 4, 17

vii

TABLE OF AUTHORITIES—continued

STATUTES

28 U.S.C. § 1254 ...........................................

42 U.S.C. § 1983 ...........................................

Civil Rights Act of 1871, ch. 22, 17 Stat. 13

Page

1

2

16

SCHOLARLY AUTHORITIES

Samuel Brandao, Qualified Immunity—Obviousness Standard—Taylor v. Riojas,

135 Harv. L. Rev. Vol. 421 (2021).............

18

Bryan Lammon, Finality, Appealability,

and the Scope of Interlocutory Rev., 93

Wash. L. Rev. 1809 (2018) ........................

15

James E. Pfander & Jonathan L. Hunt,

Public

Wrongs

and

Priv.

Bills:

Indemnification and Gov’t Accountability

in the Early Republic, 85 N.Y.U. L. Rev.

1862 (2010) ................................................

18

Alexander A. Reinert, Qualified Immunity’s

Flawed Found., 111 Cal. L. Rev. 201

(2023) ......................................................... 16, 17

OTHER AUTHORITIES

M. Deane, Emerging Partnerships Between

Mental Health and Law Enforcement,

Nat’l Libr. of Med. (Jan. 1999), https://tinyurl.com/35vtt2f9 ....................................

Eleventh Circuit Pattern Jury Instructions,

https://www.ca11.uscourts.gov/patternjury-instructions........................................

6

19

viii

TABLE OF AUTHORITIES—continued

Page

Robin Engel, Eric Silver, Policing mentally

disordered suspects: A reexamination of

the criminalization hypothesis, Criminology (Mar. 7, 2006), https://tinyurl.com/4nkr23fa ..................................

7

Fifth Circuit Pattern Jury Instructions,

https://www.lb5.uscourts.gov/juryinstructions/ ..........................................................

19

J. Janik, Dealing With Mentally Ill Offenders,

Law

Enf’t

Bulletin

(July 1992), https://tinyurl.com/5y6hz5w9 .................................

6

Bryan Lammon, The Eleventh Circuit’s

“Both-Questions” Path Around Johnson v.

Jones, Final Decisions (Feb. 11, 2024),

https://tinyurl.com/mstjrv6r ..................... 4, 13

Michael S. Rogers et al., Effectiveness of

Police Crisis Intervention Training

Programs, J. Am. Acad. Psychiatry & L.

(Sept. 24, 2019), https://tinyurl.com/2ak2j

pwh ............................................................

7

Sixth Circuit Pattern Jury Instructions,

https://www.ca6.uscourts.gov/patternjury-instructions........................................

19

PETITION FOR A WRIT OF CERTIORARI

Donna Chisesi, as independent administratrix of the

estate of Jonathan Victor, respectfully petitions for a

writ of certiorari to review the judgment of the U.S.

Court of Appeals for the Eleventh Circuit.

OPINIONS AND ORDERS BELOW

The Eleventh Circuit’s opinion (Pet. App. 1a–16a) is

not reported but is available at 2024 WL 1638587. The

district court’s opinion (Pet. App. 17a–47a) is not reported but is available at 2021 WL 2099580.

STATEMENT OF JURISDICTION

The Eleventh Circuit entered judgment on April 16,

2024. Petitioner timely filed a petition for rehearing en

banc, which was denied on July 11, 2024. On October

1, 2024, Justice Thomas extended the deadline for this

petition to November 8, 2024. 28 U.S.C. § 1254(1) supplies jurisdiction.

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Fourth Amendment provides in relevant part:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” U.S.

Const. amend. IV.

The Civil Rights Act of 1871 provides in relevant

part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

2

to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983.

INTRODUCTION

This petition raises two important and recurring

questions that have divided courts, judges, and commentators: (1) whether, on a defendant’s interlocutory

appeal asserting qualified immunity, a court of appeals can decide whether any genuine factual disputes

exist, and (2) whether qualified-immunity doctrine

should be abrogated or pared back to match its common-law origins.

After Jonathan Victor was injured in a single car accident, first responders found him “spaced out” and

nonresponsive inside the car. They summoned police.

Sheriff’s Deputy Matthew Hunady arrived, trained his

rifle on Victor’s car, and began shouting commands.

After roughly 10 minutes, Victor exited his car and

slowly walked towards Hunady with his hands visible.

Without warning, Hunady shot Victor four times, killing him.

Hunady’s supervisor, Sherriff Huey Mack, Jr., was

responsible for training him. But Mack did not train

his officers on dealing with mentally distressed people

or on de-escalating confrontational situations—despite the obvious need for police officers to receive such

training.

When Victor’s estate sued Hunady and Mack under

§ 1983, the District Court denied summary judgment

for both defendants. But the Eleventh Circuit reversed

3

in part, granting Mack qualified immunity. That decision warrants review for two reasons.

First, the Eleventh Circuit is an outlier on the scope

of appellate jurisdiction over interlocutory appeals in

qualified-immunity cases. Most circuits hold that the

courts of appeals must take as given the factual basis

for the district court’s immunity denial and cannot review the district court’s determination of what facts a

reasonable factfinder could find. That is true even if

the defendant also disputes whether any constitutional violation was clearly established. But the Eleventh Circuit holds that “when . . . an interlocutory appeal presents both evidence sufficiency and clearly established law issues, we may decide both questions.”

E.g., Nelson v. Tompkins, 89 F.4th 1289, 1296 (11th

Cir. 2024) (cleaned up), cert. denied, No. 23-1374, 2024

WL 4426712 (U.S. Oct. 7, 2024). In such cases, the

Eleventh Circuit thus considers itself free to decide

“whether the evidence is sufficient to create a jury

question about whether [a defendant] violated [the

plaintiff’s] constitutional right.” Id.

This outlier approach is especially glaring in failureto-train cases like this one. Other circuits recognize

that such claims are inherently fact-intensive, and

thus are poorly suited for resolution at summary judgment—let alone on a summary-judgment appeal. E.g.,

Valdez v. Macdonald, 66 F.4th 796, 818–19 (10th Cir.

2023). But the Eleventh Circuit resolved the failureto-train claim against Sheriff Mack itself, declaring

that while the “evidence shows the possibility of recurring situations involving those suffering mental health

crises,” it was too “equivocal” to establish “an obvious

need for more or different training.” Pet. App. 15a.

The court so held despite—and without addressing—

4

the district court’s finding that, given the “conflicting

evidence” on this issue, “genuine disputes of material

fact remain,” so “whether Sheriff Mack was deliberately indifferent is a question that should [be] left to a

jury.” Id. at 44a. In other circuits, that finding would

have foreclosed review.

The Eleventh Circuit’s approach is a “mistaken endrun around the normal limits on qualified-immunity

appeals.” See Bryan Lammon, The Eleventh Circuit’s

“Both-Questions” Path Around Johnson v. Jones, Final

Decisions (Feb. 11, 2024), https://tinyurl.com/mstjrv6r.

It conflicts with this Court’s rule that “determinations

of evidentiary sufficiency at summary judgment are

not immediately appealable merely because they happen to arise in a qualified-immunity case.” Behrens v.

Pelletier, 516 U.S. 299, 313 (1996).

Second, this case provides an ideal opportunity to revisit qualified-immunity doctrine more broadly.

“[R]ecent scholarship details that the 1871 Civil

Rights Act included language abrogating common-law

immunities that was, for unknown reasons, omitted

from the first compilation of federal law.” Price v.

Montgomery Cnty., 144 S. Ct. 2499, 2500 & n.2 (2024)

(Sotomayor, J., respecting the denial of certiorari).

And there is ample reason to revisit the doctrine now,

which has proven increasingly unworkable and produced inconsistent and unjust results in countless

cases. At a minimum, the Court should pare back

qualified immunity to match its common-law origins.

See Ziglar v. Abbasi, 582 U.S. 120, 160 (2017)

(Thomas, J., concurring in part and concurring in the

judgment).

5

STATEMENT OF THE CASE

I. Factual background.

After Jonathan Victor’s car hydroplaned into the Interstate 10 median, first responders found him injured, disoriented, and exhibiting an “altered state of

mind.” Pet. App. 19a. Soon thereafter, Victor retrieved

an unknown item from the backseat and then sat in

his car, refusing medical assistance. Id. at 20a. First

responders called 911 for assistance, and Deputy

Hunady responded to what he understood was a “welfare concern.” Id. at 19a–20a. Victor had not committed a crime, not assaulted anyone with a weapon, was

not a fleeing felon, was not wanted for any crime, and

had no criminal record. Id. at 33a.

It took Deputy Hunady over seventeen minutes to

arrive to the scene. After arriving, Hunady immediately loaded his rifle. Pet. App. 22a. He did not ask

first responders any questions. Id. at 21a. He made no

effort to confirm whether Victor was armed. Id. He ordered other armed officers to surround Victor’s car, escalating the situation by shouting unclear and ambiguous commands at officers and first responders without a clear plan of action. Id. at 21a. Deputy Hunady

told Victor to “come on out” and “we’re here to help

you.” Id. at 21a-22a.

Hunady admitted that he never saw Victor holding

a weapon, nor did he see physical evidence that Victor

had a weapon. Pet. App. 25a. Video footage from the

scene demonstrates that Victor progressed slowly towards officers after Hunady repeatedly ordered him to

exit his vehicle, and that Victor’s posture was inconsistent with that of an armed shooter:

6

Hunady was carrying a Taser, and Victor was within

the functional range of this non-lethal weapon when

Hunady shot him four times. Id.

At the time of the shooting, the Baldwin County

Sheriff’s Office lacked training in critical areas. The

department did not train officers in crisis intervention,

de-escalation, or responding to situations involving

mental distress or suicide. Pet. App. 27a.

Police training in dealing with subjects in mental

health crises is essential: Citizens with mental health

conditions account for between 7 and 10% of all policecitizen encounters. 1 Police officers are 1.4 to 4.5 more

likely to use force during encounters with individuals

who have a mental health condition compared to those

1 M. Deane, Emerging Partnerships Between Mental Health

and Law Enforcement, Nat’l Libr. of Med. (Jan. 1999), https://tinyurl.com/35vtt2f9; J. Janik, Dealing With Mentally Ill Offenders, Law Enf’t Bulletin (1992), https://tinyurl.com/5y6hz5w9.

7

without one. 2 From 2015 to 2018, roughly 25% of fatalities resulting from police shootings were people with

mental illness. 3. The BCSO had a negotiations team

that is trained to deal with barricaded subjects. Id. at

22a. At no time was that negotiations team called to

the scene or otherwise contacted to ascertain its availability to assist in defusing the situation. Id. Yet, Sheriff Mack failed to provide any training for his other officers, including Deputy Hunady, in situations involving mental distress or suicide, de-escalation scenarios,

and crisis intervention. Pet. App. 40a

Sherriff Mack was the department’s chief supervisor

and policymaker. Pet. App. 40a. There is no dispute

that Mack was responsible for training his officers and

setting policies. Id. He was also responsible for addressing training and policy deficiencies. Id. Mack admitted that his department did not train officers in

these situations.

II. Procedural background.

Victor’s mother, Donna Chisesi, sued Hunady and

Mack under 42 U.S.C. § 1983, alleging Fourth Amendment violations. 4 As to Mack, Chisesi alleged that his

2 Robin Engel, Eric Silver, Policing mentally disordered suspects: A reexamination of the criminalization hypothesis, Criminology (Mar. 7, 2006) https://tinyurl.com/4nkr23fa

Michael S. Rogers., et al. Effectiveness of Police Crisis

Intervention Training Programs, The Journal of American

Academy of Phychiatry and the Law (Sept. 24, 2019), https://tin

yurl.com/2ak2jpwh.

3

4 Her counts include claims against Hunady for wrongful death

(Count I), against Hunady for excessive force (Count II), against

Mack for Monell liability (Count III), and against Mack for supervisory liability (Count IV). Only Count IV is at issue here.

8

failure to adequately train his deputies evinced deliberate indifference to constitutional rights. Pet. App.

6a.

As relevant, the district court denied the defendants’

summary-judgment motions asserting qualified immunity. The court concluded that Mack was not entitled to qualified immunity because the shooting “is the

kind of recurring situation presenting an obvious,

highly predictable potential for violation that can trigger liability for failure to train, even in the absence of

a pattern of violations.” Pet. App. 44a. And given “the

conflicting evidence in this case,” viewed “in the light

most favorable to” the plaintiff, “a finding of deliberate

indifference can attach to Sheriff Mack’s failure to provide training to [his] deputies in the specified areas.”

Id.

On interlocutory appeal, the Eleventh Circuit dismissed Hunady’s appeal for lack of jurisdiction but reversed the denial of summary judgment as to Mack.

The court held that it had jurisdiction over Mack’s appeal because, it said, the “facts underlying that claim

are not in dispute.” See Pet. App. 11a–12a. But the

court concluded that “Chisesi failed to demonstrate

that Sheriff Mack had actual or constructive notice

that the particular omissions in the training program

were likely to result in constitutional violations”; “Although [the] evidence shows the possibility of recurring

situations involving those suffering mental health crises, the evidence is far more equivocal on whether

there was an obvious potential for the violation of constitutional rights and an obvious need for more or different training.” Id. at 15a–16a.

The Eleventh Circuit then denied Chisesi’s timely

petition for rehearing en banc. Pet. App. 48a–49a.

9

REASONS FOR GRANTING THE PETITION

III. The Eleventh Circuit is an outlier on the

scope of appellate jurisdiction in interlocutory qualified-immunity appeals.

This Court has “limit[ed] interlocutory appeals of

qualified immunity matters to cases . . . presenting

neat abstract issues of law.” Johnson v. Jones, 515

U.S. 304, 317 (1995) (cleaned up). Such legal questions

do not include “a determination about ‘genuine’ issues

of fact for trial.” Id. In other words, “determinations

of evidentiary sufficiency at summary judgment are

not immediately appealable merely because they happen to arise in a qualified-immunity case.” Behrens,

516 U.S. at 313.

Most circuits follow this Court’s clear instructions:

Questions of evidentiary sufficiency—of whether a

genuine factual dispute exists—are not appealable on

an interlocutory basis. But the Eleventh Circuit holds

that such questions are appealable, so long as the defendant also disputes an associated legal question.

The Eleventh Circuit’s outlier approach is wrong. And

its error is especially glaring in failure-to-train cases

like this one.

A. Most circuits reject interlocutory review of genuine factual disputes.

Outside the Eleventh Circuit, the law is clear:

Whether or not the defendant also disputes a violation

of clearly established law, the courts of appeals lack

jurisdiction to decide whether genuine factual disputes

exist.

For example, the Fifth Circuit will not consider interlocutory appellate arguments that “the district

10

court erred in finding a genuine dispute of fact existed.” Garcia v. Orta, 47 F.4th 343, 349 (5th Cir.

2022). “This court has jurisdiction for this interlocutory appeal if it challenges the materiality of factual

issues, but we lack jurisdiction if it challenges the district court’s genuineness ruling—that genuine issues

exist concerning material facts.” Id. (cleaned up).

Thus, the Fifth Circuit will not entertain arguments

“about what inferences a jury could appropriately

draw” from the record. Brown v. Strain, 663 F.3d 245,

250 (5th Cir. 2011); see also Dilley v. Domingue, 118

F.4th 671, 673–74 (5th Cir. 2024) (on interlocutory appeal, if “some genuine factual dispute persists,” the

court will consider “the legal question of whether that

fact dispute is material,” but not its “genuineness”).

Likewise, the Sixth Circuit will exercise “jurisdiction

only to the extent that the defendant limits his argument to questions of law premised on facts taken in the

light most favorable to the plaintiff.” Adams v. Blount

Cnty., 946 F.3d 940, 948 (6th Cir. 2020) (cleaned up).

“In other words, a defendant may not appeal a denial

of a motion for summary judgment based on qualified

immunity insofar as that order determines whether or

not the pretrial record sets forth a genuine issue of fact

for trial.” Id. (cleaned up). Thus, the Sixth Circuit will

“separate an appellant’s reviewable challenges from

its unreviewable,” and will thus “ignore the defendant’s attempts to dispute the facts” or “the inferences

that the district court draws from those facts.” Id.

That is true even if the defendant also argues that “he

did not violate any ‘clearly established’ constitutional

right.” Id. at 950.

11

The Seventh Circuit similarly holds that “[a]n interlocutory appeal of a qualified immunity denial is appealable to the extent that it turns on issues of law.”

Stewardson v. Biggs, 43 F.4th 732, 735 (7th Cir. 2022)

(emphasis added), reh’g denied, No. 21-3118, 2022 WL

16954354 (7th Cir. Nov. 15, 2022). That court’s “review is therefore confined to abstract issues of law at

th[e] interlocutory stage, and [its] appellate jurisdiction is secure only if the relevant material facts are undisputed or (what amounts to the same thing) when

the defendant accepts the plaintiff’s version of the

facts as true for now.” Id. at 735–36 (cleaned up). To

assess its jurisdiction, the Seventh Circuit thus asks

“whether [a defendant’s] qualified immunity arguments turn on legal issues only.” Id. at 736 (emphasis

added). Arguments that are “inseparable from the

questions of fact identified by the district court” are

not reviewable. Id. at 737.

In the Ninth Circuit, too, “a public official may not

immediately appeal a fact-related dispute about the

pretrial record, namely, whether or not the evidence in

the pretrial record was sufficient to show a genuine issue of fact for trial.” E.g., Est. of Anderson v. Marsh,

985 F.3d 726, 731 (9th Cir. 2021) (cleaned up). The

court’s “interlocutory review jurisdiction is limited to

resolving a defendants purely legal contention that his

or her conduct did not violate the Constitution and, in

any event, did not violate clearly established law.” Id.

(cleaned up) (emphasis added). “In other words, we

have jurisdiction to review an issue of law determining

entitlement to qualified immunity—even if the district

court’s summary judgment ruling also contains an evidence-sufficiency determination—but not to accede to

a defendant’s request that we review that evidencesufficiency determination on appeal.” Id.

12

This carefully limited approach is especially important in failure-to-train cases, which are highly factintensive. For example, the Tenth Circuit rejected a

defendant’s appellate argument that “the ‘need for

more or different training’” in a single-incident failure

to train case “should not have gone to trial.” Valdez,

66 F.4th at 818–19. Such an argument “is not a purely

legal question”; “because that issue is at least partly

factual . . . we do not review it on an appeal from the

denial of summary judgment.” See id.

B. The Eleventh Circuit reviews genuine

factual disputes on interlocutory appeal.

The Eleventh Circuit’s approach is very different.

The court acknowledges that, under Johnson and Behrens, it “do[es] not have interlocutory jurisdiction to review the denial of summary judgment where the only

issues appealed are evidentiary sufficiency issues.”

E.g., Cottrell v. Caldwell, 85 F.3d 1480, 1484 (11th Cir.

1996). But that rule, according to the Eleventh Circuit, “does not affect our interlocutory jurisdiction in

qualified immunity cases where the denial is based

even in part on a disputed issue of law.” Id. at 1485

(emphasis added). Thus, the court believes it has “authority to decide, in the course of deciding the interlocutory appeal, those evidentiary sufficiency issues that

are part and parcel of the core qualified immunity issues, i.e., the legal issues.” Id. at 1486.

The Eleventh Circuit has repeatedly applied this

outlier standard, reviewing “whether the evidence is

sufficient to create a jury question about whether [a

defendant] violated [the plaintiff’s] constitutional

right.” E.g., Nelson, 89 F.4th at 1296 (cleaned up); see

13

also Dempsey v. Sheriff, Bay Cnty., No. 23-10825, 2024

WL 95441, at *4 (11th Cir. Jan. 9, 2024) (per curiam).

This case exemplifies the Eleventh Circuit’s erroneous standard. The district court found that Chisesi

had produced “evidence . . . that circumstances like

Victor’s are both common and recurring in law enforcement officers’ daily activities, and that there is an obvious potential for a subject’s federal rights to be violated in that situation.” Pet. App. 43a. After reviewing this evidence in detail, the court concluded:

“[G]iven . . . the conflicting evidence in this case,

whether Sheriff Mack was deliberately indifferent is a

question that should [be] left to a jury. In viewing the

evidence in the light most favorable to Chisesi, the

nonmovant, . . . genuine disputes of material fact remain on this element.” Id. at 44a (cleaned up).

In other circuits, that finding would preclude both

summary judgment and interlocutory review. See,

e.g., Valdez, 66 F.4th at 818–19 (because “the ‘need for

more or different training’ . . . is at least partly factual,” it is not reviewable “on an appeal from the denial

of summary judgment”). But not in the Eleventh Circuit. Without addressing the district court’s finding of

a genuine factual dispute, the Eleventh Circuit decided on its own that the evidence did not suffice to

show “an obvious potential for the violation of constitutional rights and an obvious need for more or different training.” Pet. App. 15a.

C. The Eleventh Circuit’s approach is

wrong.

The Eleventh Circuit’s approach “cannot [be] reconcile[d] . . . with Johnson and Behrens.” Lammon, supra. Those cases hold “that denials of qualified im-

14

munity at the summary-judgment stage are appealable to the extent they raise abstract legal issues concerning the existence or clarity of a constitutional violation.” Id. Thus, “challenging the existence or clarity

of a constitutional violation does not open the door to

other issues.” Id.

The Eleventh Circuit’s error flows from Johnson v.

Clifton, 74 F.3d 1087 (11th Cir. 1996). Soon after this

Court decided Johnson v. Jones, the Eleventh Circuit

held in Clifton that, when a clearly-established-law

ruling is appealable, the underlying evidentiary sufficiency ruling “may be addressed by an appellate court

because it is a part of the core qualified immunity analysis.” 74 F.3d at 1091. Thus, “the court of appeals can

conduct its own review of the record in the light most

favorable to the nonmoving party.” Id.

That is exactly what Johnson and Behrens forbid.

Johnson addressed this scenario, noting that “if the

District Court in this case had determined that [the

defendants] violated clearly established law, [they]

could have sought review of that determination.” 515

U.S. at 318. But—responding to the suggestion that

such an appeal would “create a reviewable summary

judgment order”—the Court expressed skepticism that

it would “be appropriate to exercise ‘pendent appellate

jurisdiction’ . . . to review the underlying factual matter.” See id. In other words, it “does not automatically

follow” that appealing the clearly-established-law issue would encompass the “determination that there

was a genuine issue of fact.” Id. That the Court identified this scenario as requiring the exercise of “pendent appellate jurisdiction” makes clear that an evi-

15

dentiary-sufficiency issue is not, as the Eleventh Circuit would have it, part and parcel of the legal qualified-immunity question.

And the next Term, Behrens underscored that “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.’” 516 U.S.

at 313. Thus, the court of appeals must “assume the

same facts as the district court.” Bryan Lammon, Finality, Appealability, and the Scope of Interlocutory

Rev., 93 Wash. L. Rev. 1809, 1846 (2018).

There are good practical reasons for this rule. “Record review can be time consuming, slowing down the

interlocutory appeal and thus further delaying district

court proceedings.” Id. What’s more, “appellate courts

have no comparative advantage in determining which

facts a summary judgment record supports,” so “[t]he

need for immediate appellate review is thus low.” Id.

at 1847–47.

IV. Qualified immunity should be abrogated

or pared back to its common-law roots.

The decision below also provides the Court an opportunity to dispense with the flawed doctrine of qualified

immunity altogether, or at least to limit the doctrine

to its original scope in which it protected officers and

officials acting in good faith and not those demonstrating deliberate indifference to common and obvious

risks.

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D. Qualified immunity should be abrogated because § 1983 was intended to

abolish common-law defenses.

New scholarship shows that courts have been construing an incomplete version of § 1983 since its inception. See Alexander A. Reinert, Qualified Immunity’s

Flawed Found., 111 Cal. L. Rev. 201 (2023); See also

Price v. Montgomery Cnty., 144 S. Ct. 2499, 2500 & n.2

(2024) (Sotomayor, J., respecting the denial of certiorari).

When enacted, Section 1 of the Civil Rights Act of

1871 (now known as § 1983), had an additional sixteen

words, called the “notwithstanding” clause:

[A]ny person who, under color of any law, statute,

ordinance, regulation, custom, or usage of any State,

shall subject, or cause to be subjected, any person

within the jurisdiction of the United States to the

deprivation of any rights, privileges, or immunities

secured by the Constitution of the United States,

shall, any such law, statute, ordinance, regulation,

custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action

at law, suit in equity, or other proper proceeding for

redress . . . .”

Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13 (emphasis added); Reinert, supra, at 235. But this language does not appear in the version of the statute

courts have applied for decades.

This omission was an unauthorized change (and one

of many errors) by the Federal Reviser of Statutes, not

a legislative decision. Reinert, supra, at 207, 237. The

legislative history shows that “custom or usage” was

generally understood at the time to mean common law,

17

meaning the “notwithstanding” clause displaces common-law defenses. Reinert, supra, at 235. Moreover,

“history, in combination with the absence of any language in Section 1983 regarding immunity, offers a

strong indication that Congress meant to abrogate all

common law immunities, even without the Notwithstanding Clause.” Id. at 239.

This new research negates the “original justification

for qualified immunity—that Congress wouldn’t have

abrogated common-law immunities absent explicit

language.” Rogers v. Jarrett, 63 F.4th 971, 980 (5th

Cir.) (Willet, J., concurring), cert. denied, 144 S. Ct.

193 (2023). Indeed, these findings are “game-changing . . . particularly in this text-centric judicial era

when jurists profess unswerving fidelity to the words

Congress chose.” Id.

E. Qualified immunity should be pared

back to match its common law roots.

This case demonstrates the continual expansion of

modern qualified immunity towards blanket immunity of police officers, moving away from the common

law foundation of qualified immunity, which was intended to offer limited protection to public officials acting in good faith. See Kisela v. Hughes, 138 S. Ct. 1148,

1162 (2018) (per curiam) (Sotomayor, J., dissenting)

(arguing that modern qualified immunity has become

an “absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment”).

This Court has “not attempted to locate [the current

qualified-immunity] standard in the common law as it

existed in 1871 . . . and some evidence supports the

conclusion that common-law immunity as it existed in

1871 looked quite different from our current doctrine.”

Ziglar, 582 U.S. at 159 (Thomas, J., concurring in part

18

and concurring in the judgment) (citing Baude, Is

Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45,

51–62 (2018)). Indeed, the modern doctrine of qualified immunity reflects “judicial control of matters that

the early republic had assigned to the legislative

branch.” See James E. Pfander & Jonathan L. Hunt,

Public Wrongs and Priv. Bills: Indemnification and

Gov’t Accountability in the Early Republic, 85 N.Y.U.

L. Rev. 1862 (2010).

What’s more, modern qualified immunity has become unworkable. See Zadeh v. Robinson, 928 F.3d

457, 479 (5th Cir. 2019) (Willett, J., concurring)

(“courts of appeals are divided—intractably—over precisely what degree of factual similarity must exist” to

clearly establish law). That fact is exemplified by circuit panels reaching different conclusions regarding

qualified immunity in identical cases. Samuel

Brandao, Qualified Immunity—Obviousness Standard—Taylor v. Riojas, 135 Harv. L. Rev. Vol.421, 427

n. 73-77 (2021) (citing a case in which one Sixth Circuit

panel affirmed denial of qualified immunity, and a second panel reversed the denial in the same case). Other

circuits have standards that are obviously different

from one another. See id. (citing Tenth and Eleventh

Circuit reaching similar holdings related to clearly obvious that prisoners being exposed to human waste;

whereas, the Fifth Circuit found no similar precedent

to put officers on notice). The disparity across Circuits

is best highlighted by the qualified immunity pattern

jury instructions between the Circuits. Notably, the

Eleventh Circuit has no pattern jury instructions on

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qualified immunity. 5 Thus, it is even more difficult to

ascertain the standards to meet.

The Eleventh Circuit’s use of qualified immunity

oversteps the original bounds of the doctrine, allowing

Sheriff Mack to avoid liability for the preventable

death of Victor; a death that could have been avoided

had Sheriff Mack trained his officers in de-escalation

strategies, crisis intervention, and mental distress situations.

V. The questions presented are important and

recurring.

Both questions presented are important. Whether

and how qualified immunity should shield government

agents from liability is a vitally important question—

for injured plaintiffs, for defendant officers, and for the

public more broadly. Expansive applications of qualified immunity can produce unjust results and undermine confidence in the rule of law. Likewise, the scope

of interlocutory appellate jurisdiction in such cases is

important; interlocutory qualified-immunity appeals

add significant delay and expense for parties and

courts alike. And both issues arise around the country

every day. That is true in the Eleventh Circuit too,

which is entrenched in its outlier approach.

Finally, this case is a good vehicle to address these

questions. They are squarely presented, potentially

dispositive, and were preserved below.

5 See, e.g., Pattern jury instructions for the Fifth, Sixth, and

Eleventh, Circuits; https://www.lb5.uscourts.gov/juryinstructions/;

https://www.ca6.uscourts.gov/pattern-jury-instructions;

https://www.ca11.uscourts.gov/pattern-jury-instructions.

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CONCLUSION

The petition should be granted.

Respectfully submitted,

JACK SAMUEL TENENBAUM

NORTHWESTERN BLUHM

LEGAL CLINIC

COMPLEX CIVIL LITIGATION

AND INVESTOR

PROTECTION CENTER

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-4808

JEFFREY T. GREEN*

TOBIAS S. LOSS-EATON

DANIELLE HAMILTON

THE CARTER G. PHILLIPS/

SIDLEY AUSTIN LLP

SUPREME COURT CLINIC

NORTHWESTERN PRITZKER

SCHOOL OF LAW

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-1486

jeff@greenlawchartered.com

Counsel for Petitioner

November 8, 2024

* Counsel of Record