Amicus Curiae Brief — Johnson v. Jones

Segtins Short, UA.

(7 FILO

a FEB 24 1995

| came Of ae.

Supreme Court of th the Hnited States

OCTOBER TERM, 1994

TYSON JOHNSON, ROBERT DEEVEY, AND JOHN PAYNE,

" Petitioners,

HOusTON JONES,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF THE

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION,

NATIONAL INSTITUTE OF

MUNICIPAL LAW OFFICERS,

NATIONAL LEAGUE OF CITIES,

NATIONAL GOVERNORY’ ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

AND THE U.S. CONFERENCE OF MAYORS

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

RICHARD RUDA *

Chief Counsel

LEE FENNELL

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

WILSON - Eres PrintTiING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

BEST AVAILABLE COPY |

QUESTION PRESENTED

Whether, in an action under 42 U.S.C. § 1983, the

denial of a public official’s motion seeking summary judg-

ment on qualified immunity grounds because the plaintiff

failed to adduce any evidence showing wrongful conduct

may be challenged in an interlocutory appeal.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........-...-........ccoccceecccosceccceeeeeeee i

py ty 8 9 ge ere iv

INTEREST OF THE AMICI CURIAE ...................... aoe

ELGG EO ne 2

SUMMARY OF ARGUMENT .......0000000000 ooo 3

oe os usoolendbdlasinnusiaisasenne 5

THE DENIAL OF A PUBLIC OFFICIAL’S

SUMMARY JUDGMENT MOTION ASSERTING

QUALIFIED IMMUNITY MAY BE THE SUB-

JECT OF INTERLOCUTORY APPEAL ON THE

GROUND THAT THE TRIAL COURT COMMIT-

TED LEGAL ERROR IN CONCLUDING THAT A

GENUINE ISSUE OF MATERIAL FACT WAS

SEALE ER an 5

A. Qualified Immunity Entitles A Public Official To

Avoid Litigating Insubstantial Lawsuits _........... 5

1. Qualified Immunity Protects Public Officials

Who Act Within Clearly Established Legal

Boundaries, As Well As Those Who Act

Where The Law Is Unclear ................... 6

2. Central To The Protection Afforded By Quali-

fied Immunity Is An Entitlement To Termi-

nation Of Insubstantial Lawsuits At The

Earliest Possible Stage Of The Litigation...... 9

B. The Denial Of A Public Official’s Entitlement

Not To Stand Trial Is Immediately Appealable

Pursuant To The Collateral Order Doctrine, Re-

gardless Of The Specific Legal Issue Upon Which

po eee ee 14

iv

TABLE OF CONTENTS—Continued

Page

1. A Denial Of Qualified Immunity Premised

On A Determination That A Genuine Issue

Of Fact Exists Is An Appealable Final Deci-

sion Under The Reasoning In Mitchell........... 14

2. A Denial Of Qualified Immunity Based On

The Determination That A Genuine Issue Of

Fact Exists Satisfies The Cohen Criteria........ 18

3. To Make The Availability Of Interlocutory

Appeal From A Denial Of Qualified Immu-

nity Turn On The Legal Reason For The

Denial Would Produce Incongruous And In-

| FR ae mee A EC Lene 23

IN etna cheeses shens ce slign tb iliac boctahasaatibasen 26

V-

TABLE OF AUTHORITIES

Cases Page

Abney v. United States, 431 U.S. 651 (1977)....15, 19, 20

Anderson v. Creighton, 483 U.S. 635 (1987)........ passim

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

bj SRReMeeNt RUE MNEAL hindi MNS Atos Uk MCh Eee BO 15, 16

Barr v. Matteo, 360 U.S. 564 (1959) eineiecinecatinnininasiany 7

Butz v. Economou, 488 U.S. 478 (1978) ......--...------- 11,13

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

ek . —__, Kain Ea ire eae OREN pia. SRE 14, 18, 20

Coopers & Lybrand v. Livesay, 487 U.S. 463

CUED ecokkstoemniecenaiisstonseatcacadicee ee ee en eee! 14, 18, 19

DeVargas v. Mason & Hanger-Silas Mason Co.,

844 F.2d 714 (10th Cir. 1988) _000000 16

Dombrowski v. Eastland, 387 U.S. 82 (1967)........ 15

Elder v. Holioway, 114 S.Ct. 1019 (1994) _....0 7

Firestone Tire & Rubber Co. v. Risjord, 449 U.S.

TE CRED cnescitiche cutee eS 23

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............. passim

Helstoski v. Meanor, 442 U.S. 500 (1979)... 15, 19

Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984),

cert. denied, 470 U.S. 1084 (1985) 2.000000. 13

Malley v. Briggs, 475 U.S. 335 (1986) ................... 6

Mathews v. Eldridge, 424 U.S. 319 (1976) _............ 23

Mitchell v. Forsyth, 472 U.S. 511 (1985) _.......... passim

Pierson v. Ray, 386 U.S. 547 (1967) ...............- 7

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc., 113 S.Ct. 684 (1993) 0... 18, 21

Scheuer v. Rhodes, 416 U.S. 232 (1974)... 8

Siegert v. Gilley, 500 U.S. 226 (1991)... passim

Turner v. Dammon, 848 F.2d 440 (4th Cir. 1988) ..8, 9, 25

Unwin v. Campbell, 863 F.2d 124 (1st Cir. 1988)... 19, 24

Wright v. South Arkansas Reg. Health Ctr., Inc.,

800 F.2d 199 (8th Cir. 1986) ........00.00020...... 4,15, 16

Statutes

Fe i Fb niicyitiescsncsnutsteicoononboniniy eodenaetaonen ss 14

Other Authorities

Civil Actions Against State and Local Government

(Shepard’s/McGraw-Hill) (2d ed. 1992)... 13

vi

TABLE OF AUTHORITIES—Continued

Page

International City/County Management Associa-

tion, Law Enforcement Officials Liability Insur-

ance: Current Status—1991 (1991).....000000002200... 25

Susan A. McManus, The Impact of Litigation on

Municipalities: Total Cost, Driving Factors, And

Cost Containment Mechanisms, 44 Syracuse L.

Ek 8 __: ae aeRE CeIn ey Panne RENNES TE SLT EAE 24, 25

Peter H. Schuck, Suing Our Servants: The Court,

Congress, and the Liability of Public Officials for

Damages, 1980 S.Ct. Rev. 281 (1980) ................ 8, 9, 24

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-455

TYSON JOHNSON, ROBERT DEEVEY, AND JOHN PAYNE,

. Petitioners,

HOUSTON JONES,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF THE

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION,

NATIONAL INSTITUTE OF

MUNICIPAL LAW OFFICERS,

NATIONAL LEAGUE OF CITIES,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

AND THE U.S. CONFERENCE OF MAYORS

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include state,

county, and municipal governments and officials through-

out the United States, have a compelling interest in legal

issues that affect state and local governments. The doc-

trine of qualified immunity is designed to enable state

and local public officials to perform their duties by pro-

tecting them from the disruption and expense of trial, as

2

well as from liability for damages, where their actions do

not violate clearly established law. Mitchell v. Forsyth,

472 U.S. 511, 526 (1985). Indeed, the Court has em-

phasized that an essential component of qualified immu-

nity is the right not to stand trial in insubstantial cases.

See id. Because that right is important to the function-

ing of state and local government, amici have a manifest

interest in its protection.

Because the right to avoid trial is irretrievably lost if

a trial court fails to grant summary judgment on qualified

immunity grounds, the Court has recognized the necessity

of permitting interlocutory appeals on the qualified im-

munity issue. The court of appeals’ holding eviscerates

that protection by forbidding appeals from the denial of

summary judgment where the reason advanced for quali-

fied immunity is the fact that no evidence exists that the

public official did anything at all that would constitute a

violation of the plaintiffs rights. Because such a distinc-

tion dramatically reduces a core protection of qualified

immunity—the right not to stand trial in insubstantial

cases—it is of significant concern to amici.

Because of the importance of this issue to amici and

their members, amici submit this brief to assist the Court

in its resolution of this case.’

STATEMENT

Amici adopt petitioners’ statement of the case.

1The parties have consented to the filing of this brief amicus

curiae. Letters indicating their consent have been filed with the

Clerk of the Court.

3

SUMMARY OF ARGUMENT

1. The qualified immunity doctrine reflects the reality

that “damages suits against government officials can en-

tail substantial social costs, including the risk that fear of

personal monetary liability will unduly inhibit officials in

the discharge of their duties.” Anderson v. Creighton,

483 U.S. 635, 638 (1987). The doctrine thus protects

public officials when their actions do not violate clearly

established law. It encompasses not only actions under-

taken where the law is uncertain, but also actions which

plainly violate no law. By providing a zone within which

public officials may act without fear of litigation, qualified

immunity reduces the risks that might otherwise inhibit

public officials and prevent them from effectively carrying

out their duties.

Qualified immunity protects public officials not only

from liability for money damages, but also from “the gen-

eral costs of subjecting officials to the risks of trial—dis-

traction of officials from their governmental duties, inhibi-

tion of discretionary action, and deterrence of able

people from public service.” Mitchell v. Forsyth, 472

U.S. 511, 526 (1985) (citation omitted). It is thus an

entitlement to “immunity from suit rather than a mere

defense to liability.” 7d. Accordingly, its protections re-

quire “[i]nsubstantial lawsuits [to] be quickly terminated.”

Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (cita-

tions omitted). The Court has recognized that the public

Official’s entitlement to timely termination of insubstantial

lawsuits can only be made meaningful if an interlocutory

appeal is available where the trial court errs in denying

qualified immunity.

2. This Court has held “that a district court’s denial

of a claim of qualified immunity, to the extent that it

turns on an issue of law, is an appealable ‘final decision’

within the meaning of 28 U.S.C. § 1291 notwithstanding

the absence of a final judgment.” Mitchell, 472 U.S. at

530. Such a denial satisfies all three criteria of the col-

lateral order doctrine: it is essentially unreviewable after

i ii |

4

final judgment; it conclusively disposes of a public offi-

cial’s right not to stand trial; and it involves rights con-

ceptually distinct from, and collateral to, the rights as-

serted by the plaintiff. 7d. at 526-29.

Permitting interlocutory appeal of a denial of qualified

immunity based on an erroneous legal assessment of the

sufficiency of the evidence clearly falls within Mitchell's

“spirit and purpose.” Wright v. South Arkansas Regional

Health Center, Inc., 800 F.2d 199, 203 (8th Cir. 1986).

Nothing in Mitchell supports the view that a distinction

must be drawn, for purposes of interlocutory appeal,

between the different varieties of legal error that might

be responsible for a denial of qualified immunity.

Even if Mitchell does not conclusively address the ap-

pealability of an erroneous denial of qualified immunity

on the grounds presented here, it is clear that such a

denial falls within the collateral order doctrine. Because

a public official’s immunity from suit “is effectively lost

ii a case is erroneously permitted to go to trial,” Mitchell,

472 U.S. at 526, a denial of qualified immunity at the

summary judgment stage is unreviewable after final judg-

ment, whether that denial is premised on a legal issue

involving sufficiency of the evidence or one involving the

clarity of the law. Relatedly, a denial of qualified im-

munity at the summary judgment stage “finally and con-

clusively determines the defendant’s claim of right not to

stand trial,” id. at 527, regardless of the legal basis for

that denial.

Finally, an appeal from a denial of qualified immunity

on the legal ground at issue here “involve[s] a ‘clai{[m]

of right separable from, and collateral to, rights asserted

in the action.’” Jd. at 527 (citation omitted). “[I]t fol-

lows from the recognition that qualified immunity is in

part an entitlement not to be forced to litigate the con-

sequences of official conduct that a claim of immunity is

conceptually distinct from the merits of the plaintiff’s

.claim that his rights have been violated.” Jd. at 527-28.

5

This conceptual distinctness is retained despite the fact

that an examination of the factual record may be required

to decide the qualified immunity issue, and despite the

fact that the public official’s appeal, if successful, will

simultaneously determine the outcome of the case and

dispose of the plaintiff's claim on the merits. See id. at

528-29; Siegert v. Gilley, 500 U.S. 226 (1991).

3. To make the appealability of a denial of qualified

immunity turn on the type of legal error responsible for

the denial would produce incongruous results and generate

confusion and uncertainty among public officials. Instead

of extending comprehensive protection from litigation and

trial to all who stay within the bounds of clearly estab-

lished law, such a view would withhold an important ele-

ment of a public official’s immunity from suit from those

whose actions are on firm legal ground. The heightened

risk that public officials who have done nothing wrong

will nonetheless be forced to litigate insubstantial claims

would be costly not only to the public officials involved,

but to society as a whole.

ARGUMENT

THE DENIAL OF A PUBLIC OFFICIAL’S SUMMARY

JUDGMENT MOTION ASSERTING QUALIFIED IM-

MUNITY MAY BE THE SUBJECT OF INTERLOCU-

TORY APPEAL ON THE GROUND THAT THE TRIAL

COURT COMMITTED LEGAL ERROR IN CONCLUD-

ING THAT A GENUINE ISSUE OF MATERIAL FACT

WAS PRESENTED

A. Qualified Immunity Entitles A Public Official To Avoid

Litigating Insubstantial Lawsuits

Qualified immunity is a judicially created response to

the tension between the need for meaningful redress

“[w]hen government officials abuse their offices,” and the

countervailing reality that “damages suits against govern-

ment officials can entail substantial social costs, including

the risk that fear of personal monetary liability will un-

6

duly inhibit officials in the discharge of their duties.”

Anderson vy. Creighton, 483 U.S. 635, 638 (1987). As

the Court explained in Anderson v. Creighton, “[o]ur

cases have accommodated these conflicting concerns by

generally providing government officials performing dis-

cretionary functions with a qualified immunity, shielding

them from civil damages liability as long as their actions

could reasonably have been thought consistent with the

rights they are alleged to have violated.” J/d. (citations

omitted). Qualified immunity protects public officials not

only from liability for damages, but also from the risks

and burdens of litigation and trial. Mitchell v. Forsyth,

472 U.S. 511, 526 (1985).

1. Qualified Immunity Protects Public Officials Who

Act Within Clearly Established Legal Boundaries,

As Well As Those Who Act Where The Law Is

Unclear

The doctrine of qualified immunity provides compre-

hensive protection to public officials who do not violate

clearly established law. “As the qualified immunity de-

fense has evolved, it provides ample protection to all but

the plainly incompetent or those who knowingly violate

the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

An official, therefore, “is immune unless his actions vio-

lated clearly established law.” Mitche!l, 472 U.S. at 530

(citations omitted).* Qualified immunity protects not

only the public official who acts in the face of unclear law,

but also the public official whose actions are fully con-

2 See also id. at 528 (public officials immune unless “the law

clearly proscribed [their] actions’); Anderson v. Creighton, 483

U.S. at 646 (“officials can know that they will not be held personally

liable as long as their actions are reasonable in light of current

American law”); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)

(“government officials performing discretionary functions generally

are shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutions] richts

of which a reasonable person would have known’’).

——————

7

sistent with the law. See Siegert v. Gilley, 500 U.S. 226,

231-33 (1991) (where no violation of constitutional right

is asserted, defendant is entitled to summary judgment on

qualified immunity grounds). Petitioners’ defense that

they did not violate respondent’s constitutional rights is

thus squarely within the scope of the qualified immunity

doctrine.

This broad protection flows logically from the purposes

of qualified immunity: “The conception animating the

qualified immunity doctrine . . . is that ‘where an official’s

duties legitimately require action in which clearly estab-

lished rights are not implicated, the public interest may be

better served by action taken “with independence and

without fear of consequences.”’” Mitchell, 472 U.S. at

525 (quoting Harlow vy. Fitzgerald, 457 U.S. 800, 819

(1982) (quoting Pierson v. Ray, 386 U.S. 547, 554

(1967)). As the Court recently reiterated, “[t]he central

purpose of affording public officials qualified immunity

from suit is to protect them ‘from undue interference with

their duties and from potentially disabling threats of lia-

bility.”” Elder v. Holloway, 114 S.Ct. 1019, 1022

(1994) (quoting Harlow, 457 U.S. at 806). The pur-

poses of qualified immunity mirror those given by the

Court for affording certain officials absolute immunity:

The reasons for the recognition of the privilege

have been often stated. It has been thought important

that officials of government should be free to exercise

their duties unembarrassed by the fear of damage suits

in respect of acts done in the course of those duties—

suits which would consume time and energies which

would otherwise be devoted to governmental service

and the threat of which might appreciably inhibit the

fearless, vigorous, and effective administration of pol-

icies of government.

Barr v. Matteo. 360 U.S. 564, 571 (1959).

Qualified immunity, therefore. provides a zone of con-

duct within which a public official may freely act without

8

fear of liability or the burdens, risks, costs, and distrac-

tions of trial—a zone which encompasses not only those

areas in which the law is unclear, but also those areas

which fall well within the bounds of clearly established

law. A public official who stays within the zone of con-

duct delineated by the doctrine of qualified immunity is

entitled to all of the benefits of qualified immunity, in-

cluding protection from standing trial on insubstantial

claims.

The need to afford public officials such a protected zone

of action is apparent: “one policy consideration seems to

pervade the analysis: the public interest requires deci-

sions and action to enforce laws for the protection of the

public. . . . Public officials, whether governors, mayors

or police, legislators or judges, who fail to make decisions

when they are needed or who do not act to implement

decisions when they are made do not fully and faithfully

perform the duties of their offices.” Scheuer v. Rhodes,

416 U.S. 232, 241-42 (1974) (footnote omitted). Where

Officials are not protected, there is a cost “not only to the

defendant officials, but to society as a whole.” Harlow,

457 U.S. at 814 & n.22 (citing Peter H. Schuck, Suing

Our Servants: The Court, Congress, and the Liability of

Public Officials for Damages, 1980 S. Ct. Rev. 281, 324-

27 (1980)). Public officials may undertake actions which

minimize the chance of being sued but which are not the

optimal ones, from the perspective of the public interest.

See Turner v. Dammon, 848 F.2d 440, 444 (4th Cir.

1988); see generally Schuck, Suing Our Servants, 1980

S. Ct. Rev. 281.°

3 The incentive to engage in self-protective behavior may be

particularly strong for local police officers—described by the Court

as “that segment of the executive branch of a state government that

is most frequently and intimately involved in day-to-day contacts

with the citizenry and, hence, most frequently exposed to situations

which can give rise to claims under § 1983.” Scheuer, 416 U.S.

at 244,

ee

og

The clearest example of such “self-protective” behavior

is inaction—such as the decision to ignore or walk away

from suspicious behavior or an incident that is unfolding.

See Schuck, Suing Our Servants, 1980 S.Ct. Rev. at 309.

Interacting with members of the public, even where one’s

conduct unambiguously falls within well-established legal

boundaries, entails some risk of a frivolous lawsuit based

on that interaction, whereas (at least in certain discre-

tionary settings) walking away poses virtually no risk of

liability or reprisals. See id.; see also Turner, 848 F.2d

at 444 (“the person aggrieved by official actions may be

quite willing to sue, but the losses to society as a whole

that come from official inaction may be more diffuse and

thus less likely to result in a lawsuit”).* Qualified im-

munity is designed to eliminate the incentive for self-

protective behavior by providing comprehensive protection

against frivolous lawsuits to public officials who stay

within the bounds of clearly established law.

2. Central To The Protection Afforded By Qualified

Immunity Is An Entitlement To Termination Of

Insubstantial Lawsuits At The Earliest Possible

Stage Of The Litigation

Qualified immunity, as formulated by the Court, pro-

tects public officials’ freedom to act by shielding them

from the consequences of actions which do not violate

4 The social costs associated with such self-protective behavior

are significant. While society as a whole suffers, Professor Schuck

has identified “silent victims” who bear the brunt of these social

costs:

[T]he silent victims I describe are individuals who must rely

heavily upon street-level public services to assure their safety

and well-being; they are almost certainly disproportionately

poor and dependent. They are precisely the persons who can

least afford to bear the costs of official self-protection, who are

least likely to seek remedies, and whom a just society would

least wish to burden.

Suing Our Servants, 1980 S.Ct. Rev. at 314.

10

clearly established law. See, e.g., Mitchell, 472 U.S. at

525; Harlow, 457 U.S. at 819. The “consequences” from

which officials are protected, the Court has clarified, “are

not limited to liability for money damages; they also in-

clude ‘the general costs of subjecting officials to the risks

of trial—distraction of officials from their governmental

duties, inhibition of discretionary action, and deterrence

of able people from public service.’” Mitchell, 472 US.

at 526 (quoting Harlow, 457 U.S. at 816). Thus, “[oJne

of the purposes of immunity, absolute or qualified, is to

spare a defendant not only unwarranted liability, but un-

warranted demands customarily imposed upon those de-

fending a long drawn out lawsuit.” Siegert, 500 U.S. at

232. Qualified immunity is an “entitlement [to] an im-

munity from suit rather than a mere defense to liability;

and like an absolute immunity, it is effectively lost if a

case is erroneously permitted to go to trial.” Mitchell, 472

U.S. at 526.

This protection from litigation as well as from liability

is designed to avoid the considerable social costs that are

incurred when public officials are forced to litigate in-

substantial claims:

[C]laims frequently run against the innocent as well

as the guilty—at a cost not only to the defendant

Officials, but to society as a whole. These social costs

include the expenses of litigation, the diversion of

official energy from pressing public issues, and the

deterrence of able citizens from acceptance of public

office. Finally, there is the danger that fear of being

sued will “dampen the ardor of all but the most reso-

lute, or the most irresponsible [public officials], in the

unflinching discharge of their duties.”

Harlow, 457 U.S. at 814 (footnote and citation omitted).

As the Harlow Court further explained, “[i]nsubstantial

lawsuits undermine the effectiveness of government as

contemplated by our constitutional structure.” Jd. at

819 n.35.

11

It was the Court’s appreciation of these costs—the

social and financial toll associated with requiring public

Officials to stand trial—that led it in Harlow to “refash-

ion[] the qualified immunity doctrine in such a way as to

‘permit the resolution of many insubstantial claims on

summary judgment.’” Mitchell, 472 U.S. at 526 (quoting

Harlow, 457 U.S. at 818). Because it appeared to the

Harlow Court that the qualified immunity standard, as it

was then formulated, stood in the way of the timely dis-

missal of insubstantial lawsuits, the Court adjusted the

operative standard so that such early termination would be

routinely available to public officials. See Harlow, 457

U.S. at 813-19.

As the Court explained in Harlow, ‘[i]n identifying

qualified immunity as the best attainable accommodation

of competing values . . . we relied on the assumption that

this standard would permit ‘[i]nsubstantial lawsuits [to]

be quickly terminated.’” 457 U.S. at 814 (citations

omitted). Indeed, the Harlow Court described “the dis-

missal of insubstantial lawsuits without trial” as “a factor

presupposed in the balance of competing interests struck

by [its] prior cases.” Id. In Butz v. Economou, the Court

assumed that public officials would be able to quickly

dispense with frivolous claims:

Insubstantial lawsuits can be quickly terminated by

federal courts alert to the possibilities of artful plead-

ing. Unless the complaint states a compensable claim

for relief under the Federal Constitution, it should

not survive a motion to dismiss. Moreover, the Court

recognized in Scheuer that damages suits concerning

constitutional violations need not proceed to trial,

but can be terminated on a properly supported mo-

tion for summary judgment based on the defense of

immunity.

438 U.S. 478, 508-09 (1978) (footnote and citation

omitted); see Harlow, 457 U.S. at 819 n.35 (reiterating

admonition in Butz “that ‘insubstantial’ suits against high

public officials should not be allowed to proceed to trial’).

12

In Mitchell, the Court identified two situations in which

qualified immunity should entitle the defendant to quick

termination of the litigation: First, “[uJnless the plain-

tiff’s allegations state a claim of violation of clearly estab-

lished law, a defendant pleading qualified immunity is

entitled to dismissal before the commencement of discov-

ery.” 472 U.S. at 526; see also Harlow, 457 U.S. at 818.

Second, “[e]ven if the plaintiff's complaint adequately

alleges the commission of acts that violated clearly estab-

lished law, the defendant is entitled to summary judg-

ment if discovery fails to uncover sufficient evidence to

create a genuine issue as to whether the defendant in fact

committed those acts.” Mitchell, 472 U.S. at 526.

The Mitchell Court went on to elaborate on this en-

titlement in the context of the first situation described—

where the allegations fail to state a violation of clearly

established law:

Harlow thus recognized an entitlement not to stand

trial or face the other burdens of litigation, condi-

tioned on the resolution of the essentially legal ques-

tion whether the conduct of which the plaintiff com-

plains violated clearly established law. The entitle-

ment is an immunity from suit rather than a mere

defense to liability; and like an absolute immunity, it

is effectively lost if a case is erroneously permitted to

go to trial.

Mitchell, 472 U.S. at 526 (emphasis in original). In

such a case, qualified immunity shields the public official

not only from trial, but also from discovery. To make

this entitlement to expeditious termination of the litigation

meaningful, interlocutory appeal must be available when

a trial court erroneously denies qualified immunity in this

context. See id. at 526-27.

The protections of qualified immunity should be equally

available in the second situation set forth in Mitchell—

where, despite the adequacy of the plaintiff's allegations,

“discovery fails to uncover evidence sufficient to create

eS, Le

13

a genuine issue as to whether the defendant in fact com-

mitted those acts” and “the defendant is entitled to sum-

mary judgment.” Mitchell, 472 U.S. at 526. While the

public official in such a situation may not be able to avoid

some measure of limited discovery, the purposes of quali-

fied immunity require that the public official be protected

from the further burdens of litigation and trial when

limited discovery fails to yield sufficient evidence of wrong-

doing.® Just as “bare allegations of malice should not

suffice to subject government officials either to the costs of

trial or to the burdens of broad-reaching discovery,”

Harlow, 457 U.S. at 817-18, neither should a bare allega-

tion of wrongdoing, unsupported by evidence that creates

a genuine issue of disputed fact, suffice to subject a public

official to such burdens. See 2 Civil Actions Against State

and Local Government § 11.47, at 198 (Shepard’s/

McGraw-Hill) (2d ed. 1992).

In this situation, as in the first one set forth by the

Mitchell Court, qualified immunity should protect public

officials from the burden and expense of litigating insub-

stantial claims by requiring termination of the litigation

at the earliest stage possible, consistent with providing the

plaintiff an opportunity to present any relevant facts.

5 Pursuant to Rule 56(f), a party facing a summary judgment

motion may request a continuance to conduct limited discovery to

oppose the motion. See Fed. Rules Civ. Proc. 56(f). Whether or

not discovery is available, of course, depends upon whether the

plaintiff has satisfied the threshold pleading requirement. See, e.g.,

Hobson v. Wilson, 737 F.2d 1, 29-31 (D.C. Cir. 1984), cert. denied,

470 U.S. 1084 (1985). Any such discovery must also be carefully

limited. See Anderson v. Creighton, 483 U.S. at 646 n.6 (while

“discovery may be necessary before Anderson’s motion for summary

judgment on qualified immunity can be resolved[,] . .. any such

discovery should be tailored specifically to the question of Anderson’s

qualified immunity”). Moreover, the Court has emphasized that,

“fijn responding to [a summary judgment] motion, plaintiffs may

not play dog in the manger; and firm application of the Federal

Rules of Civil Procedure will ensure that federal officials are not

harassed by frivolous lawsuits.” Butz, 488 U.S. at 508.

14

Accordingly, a public official faced with an erroneous

denial of qualified immunity in this context should be

permitted an interlocutory appeal to preserve his or her

immunity from suit. As amici explain below, such a re-

sult is entirely consistent with the collateral order doctrine.

B. The Denial Of A Public Official’s Entitlement Not To

Stand Trial Is Immediately Appealable Pursuant To

The Collateral Order Doctrine, Regardless Of The

Specific Legal Issue Upon Which That Denial Turns

1. A Denial Of Qualified Immunity Premised On A

Determination That A Genuine Issue Of Fact Exists

Is An Appealabie Final Decision Under The Rea-

soning In Mitchell

While 28 U.S.C. § 1291 broadly limits appellate juris-

diction to final decisions by district courts, the collateral

order doctrine recognizes that certain decisions which do

not terminate the litigation on the merits may nevertheless

have special characteristics and consequences which re-

quire that they be treated as “final decisions” for purposes

of permitting immediate appeal. In Cohen v. Beneficial

Industrial Loan Corp., the Court described the scope of

the collateral order doctrine as encompassing

that small class [of decisions] which finally determine

claims of right separable from, and collateral to,

rights asserted in the action, too important to be de-

nied review and too independent of the cause itself to

require that appellate consideration be deferred until

the whole case is adjudicated.

337 U.S. 541, 546 (1949); see also Coopers & Lybrand

v. Livesay. 437 U.S. 463, 468 (1978).

In Mitchell, the Court held “that a district court’s denial

of a claim of qualified immunity, to the extent that it

turns on an issue of law, is an appealable ‘final decision’

within the meaning of 28 U.S.C. § 1291 notwithstanding

the absence of a final judgment.” 472 U.S. at 530. The

Court observed that the protection qualified immunity pro-

eternal

15

vides from litigation and trial would be irreparably lost if

an erroneous denial of such immunity could not be im-

mediately appealed. See id. at 526-27.° Applying the

three-prong Cohen test, the Mitchell Court held that a

denial of qualified immunity at the summary judgment

stage is essentially unreviewable after final judgment, since

a critical component of that immunity is the right not to

stand trial; that such a denial conclusively disposes of a

public official’s right not to stand trial; and that the quali-

fied immunity inquiry is conceptually distinct from, and

collateral to, the merits of the case. See 472 U.S. at 526-

29.

Whether a plaintiff has presented sufficient evidence to

create a genuine factual issue is a question of law, albeit

a question of law that turns on a preliminary assessment

of the factual record. See Wright v. South Arkansas Reg.

Health Ctr., Inc., 800 F.2d 199, 203 (8th Cir. 1986).

6In this respect, qualified immunity is directly analogous to

other protections against standing trial, the denial of which have

been held to be immediately appealable. See Abney v. United States,

431 U.S. 651, 661-62 (1977) (double jeopardy clause protects indi-

viduals from “the personal strain, public embarrassment, and ex-

pense” of a second trial, and “these aspects of the guarantee’s pro-

tections would be lost if the accused were forced to ‘run the

gauntlet’ a second time before an appeal could be taken’’) ; Helstoski

v. Meanor, 442 U.S. 500, 508 (1979) (quoting Dombrowski v.

Eastland, 387 U.S. 82, 85 (1967) ) (claim that an indictment violates

the Speech or Debate Clause is directly appealable, because “the

Speech or Debate Clause was designed to protect Congressmen ‘not

only from the consequences of litigation’s results but also from the

burden of defending themselves’ ”’).

7 Detailed weighing of the facts is not necessary to decide the

legal issue: “[A]t the summary judgment stage the judge’s func-

tion is not himself to weigh the evidence and determine the truth

of the matter but to determine whether there is a genuine issue

for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). In making this determination, “[t]here is no requirement

that the trial judge make findings of fact.” Jd. at 250 (footnote

omitted). Instead, “the inquiry performed is the threshold inquiry

of deterraining whether there is the need for trial—whether, in

16

Because the Court in Mitchell held, without qualification,

that a denial of qualified immunity is immediately appeal-

able “to the extent it turns on an issue of law,” 472 U.S. }

at 530, a denial of qualified immunity based on an errone-

ous legal assessment of the sufficiency of the evidence

would appear to fall within the literal scope of the Mitchell

Court’s holding, as well as within its “spirit and purpose.”

Wright, 800 F.2d at 203.

The court of appeals assumed, however, that a distinc-

tion must be drawn, for purposes of interlocutory appeal,

between denials of claims of qualified immunity which

turn on legal questions involving the clarity of the law,

and those which turn on whether the evidence presented

by the plaintiff is legally sufficient to withstand a sum-

mary judgment motion. See Pet. App. la-2a. In other

words, an appeal may be taken to preserve a public

official’s right not to stand trial when the trial court makes

one type of legal error in denying qualified immunity, but

not when the trial court makes a different type of legal

error in denying the qualified immunity claim. An analy-

sis of Mitchell, however, fails to support such a distinction

between types of legal errors. .

Mitchell identifies two types of legal errors that can re-

sult in denial of qualified immunity at the summary judg-

ment stage. First, the trial court might erroneously con-

clude “that even if the facts are as asserted by the de-

fendant, the defendant’s actions violated clearly estab-

lished law and are therefore not within the scope of the

qualified immunity.” Mitchell, 472 U.S. at 527. A chal-

other words, there are any genuine factual issues that properly can

be resolved only by a finder of fact because they may reasonably be

resolved in favor of either party.” Jd. The inquiry at the appellate

level is similarly limited. See DeVargas v. Mason & Hanger-Silas

Mason Co., 844 F.2d 714, 719 (10th Cir. 1988) (“Our task in such

an appeal is not to determine liability on a battle of affidavits, but

to determine whether, on the basis of the pretrial record, there

exists a conflict sufficiently material to defendants’ claim of immu-

nity to require them to stand trial.’’).

17

lenge to this legal conclusion would take the form of

demonstrating that the law was not clearly established

with respect to the actions the defendant alleges he took.

Second, the trial court might erroneously deny summary

judgment upon concluding that “if the facts are as as-

serted by the plaintiff, the defendant is not immune.” /d.

There are two separate reasons why this denial’ might be

erroneous. First, the trial court could simply be wrong

in its assessment of the law; the defendant might be able

to show that even if the plaintiff's assertions were true,

they do not state a violation of clearly established law.

See id. at 528; Siegert, 500 U.S. at 232-33.

Alternatively, as was the case here, the trial court

might be correct in stating that “if the facts are as asserted

by the plaintiff, the defendant is not immune,” Mitchell,

472 U.S. at 528, but might nevertheless erroneously deny

summary judgment where there is insufficient evidence

to support the plaintiff's version of the facts. This is the

situation mentioned earlier by the Mitchell Court—where

“the plaintiff's complaint adequately alleges the commis-

sion of acts that violated clearly established law,” but

“discovery fails to uncover evidence sufficient to create a

genuine issue as to whether the defendant in fact com-

mitted those acts.’ Mitchell, 472 U.S. at 526. In this

case as well, the Court makes clear, “the defendant is

entitled to summary judgment.” Jd.

This express recognition by the Court of a public offi-

cial’s entitlement to summary judgment in such a situa-

tion, coupled with the Court’s insistence in Harlow on

termination of insubstantial lawsuits at the earliest pos-

sible stage of the litigation, strongly suggests that legal

errors falling into this category should be immediately

appealable.°

8 The Mitchell Court’s discussion of the “collateral” nature of

the qualified immunity inquiry focused on legal errors involving

the clarity of the law, rather than legal errors as to the sufficiency

18

2. A Denial Of Qualified Immunity Based On The

Determination That A Genuine Issue Of Fact Exists

Satisfies The Cohen Criteria

Even if Mitchell does not conclusively address the ap-

pealability of a denial of qualified immunity on the

grounds presented here, an examination of the Cohen

criteria provides the answer. See Cohen, 337 US. at 546;

Coopers & Lybrand, 437 U.S. at 463. Like a denial of

qualified immunity which turns on the clarity of the law,

a denial of qualified immunity which turns on a legal error

as to the sufficiency of the evidence is unreviewable on

appeal from a final judgment, conclusively determines the

public official’s right not to stand trial, and involves a

right separable from and collateral to the rights asserted

in the action.

Unreviewable On Appeal From Final Judgment. As

discussed above, a core component of qualified immunity

is the public official’s entitlement not to stand trial on

insubstantial claims. The denial of a motion for dismissal

Or summary judgment on qualified immunity grounds

amounts to a denial of this entitlement, which is unre-

viewable on appeal from a final decision. Once the public

official is required to stand trial, his right to avoid stand-

ing trial is lost forever. As the Court explained in Mit-

chell, “[t]he entitlement is an immunity from suit rather

than a mere defense to liability; and like an absolute im-

munity, it is effectively lost if a case is erroneously per-

mitted to go to trial.” 472 U.S. at 526. See also Puerto

Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

113 S.Ct. 684, 687-89 -(1993). Significantly, the trial

court’s denial of the “entitlement not to stand trial” com-

ponent of qualified immunity is just as unreviewable after

trial where that denial turns on the sufficiency of the evi-

dence, as where it turns on the clarity of the law. Cf.

of the evidence. See Mitchell, 472 U.S. at 527-28. However, as amici

discuss below, see pp. 20-23, infra, similar analysis applies to the

latter type of legal error.

19

Unwin v. Campbell, 863 F.2d 124, 132-33 (1st Cir.

1988).

Conclusively Determines The Disputed Question. An-

other criterion for interlocutory appeal is that the trial

court’s decision “must ‘conclusively determine the disputed

question.’” Mitchell, 472 U.S. at 527 (quoting Coopers

& Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).

Here, the question of whether the public official will be

required to stand trial or will be immunized from stand-

ing trial is conclusively determined by the trial court’s

denial of summary judgment. As in other situations in

which interlocutory appeal has been permitted, no further

steps can be taken by the public official to avoid being

required to stand trial. See Abney v. United States, 431

U.S. 651, 659 (1977) (where double jeopardy claim is

rejected “[t]here are simply no further steps that can

be taken in the District Court to avoid the trial the de-

fendant maintains is barred by the Fifth Amendment’s

guarantee”); Helstoski v. Meanor, 442 U.S. 500, 507

(1979) (“[o]nce a motion to dismiss [on Speech or

Debate Clause grounds] is denied, there is nothing the

Member can do under that Clause in the trial court to

prevent the trial”).

It is obviously irrelevant that the trial court might

change its mind about the availability of qualified im-

munity after a full trial. In Mitchell, the Court considered

just such a situation, in which the trial court’s erroneous

holding as to the availability of qualified immunity at the

summary judgment stage might later be corrected at trial:

Even so, the court’s denial of summary judgment

finally and conclusively determines the defendant’s

claim of right not to stand trial on the plaintiff's alle-

gations, and because “[t]here are simply no further

steps that can be taken in the District Court to avoid

the trial the defendant maintains is barred,” it is

apparent that “Cohen’s threshold requirement of a

fully consummated decision is satisfied” in such a

case.

20

472 U.S. at 527 (quoting Abney, 431 U.S. at 659).°

Involves A Right Separable From, And Collateral To,

Those Asserted In The Action. Finally, the question de-

cided by the trial court “must involve a ‘clai[m] of right

separable from, and collateral to, rights asserted in the

action.’” Mitchell, 472 U.S. at 527 (quoting Cohen, 337

U.S. at 546)). As the Court noted in Mitchell, “it fol-

lows from the recognition that qualified immunity is in

part an entitlement not to be forced to litigate the conse-

quences of official conduct that a claim of immunity is

conceptually distinct from the merits of the plaintiff's

claim that his rights have been violated.” 472 U.S. at

527-28. This conceptual distinctness arises out of the fact

that the immunity question is focused on deciding the

immediate consequences for the public official—whether

he or she will be subjected to the further burdens of dis-

covery and trial. The question whether or not the public

official is entitled to a quick termination of the lawsuit

involves the public official’s right to qualified immunity,

a right that is plainly separable from and collateral to the

rights asserted by the plaintiff.

Nor does the relevance of the factual record to the legal

question at issue blur the conceptual distinction between

the public official’s asserted right to avoid trial and the

plaintiff's asserted right to relief. The factual record will

always bear upon the resolution of qualified immunity is-

sues, even where the qualified immunity issue turns on a

legal question involving the clarity of the law."® As the

Court observed in Mitchell,

®Cf. Abney, 481 U.S. at 660-61 (“[T]his Court has long recog-

nized that the Double Jeopardy Clause protects an individual against

more than being subjected to double punishments. It is a guarantee

against being twice put to trial for the same offense.”) (footnote

omitted).

10For example, in Anderson v. Creighton, the Court explained

that “the determination whether it was objectively legally reason-

able to conclude that a given search was supported by probable

21

the resolution of . . . legal issues will entail considera-

tion of the factual allegations that make up the plain-

tiff’s claim for relief; the same is true, however, when

a court must consider whether a prosecution is barred

by a claim of former jeopardy or whether a Congress-

man is absolutely immune from suit because the com-

plained of conduct falls within the protections of the

Speech and Debate Clause... . In holding these and

similar issues of absolute immunity to be appealable

under the collateral order doctrine, the Court has rec-

ognized that a question of immunity is separate from

the merits of the underlying action for purposes of the

Cohen test even though a reviewing court must con-

sider the plaintiff's factual allegations in resolving the

immunity issue.

Mitchell, 472 U.S. at 528-29 (citations and footnote

omitted).” It is quite clear from the Mitchell Court’s

treatment of the “separable and collateral” prong of the

Cohen test, therefore, that a legal issue need not be

totally unrelated to, or hermetically sealed from, the

“facts” or the “merits” of the case in order to fall within

the collateral order doctrine.

Likewise, the fact that an appellate court’s decision as

to the qualified immunity issue may decide the outcome

of the case—or may, indeed, simultaneously decide the

“merits” of the case—does not make the qualified im-

munity determination any less “collateral” under Cohen.

Any successful appeal by a public official based on quali-

fied immunity will be outcome determinative, whether the

cause or exigent circumstances”—in other words, whether qualified

immunity is available—‘“will often require examination of the

information possessed by the searching officials.” 482 U.S. at 641.

11 See also Puerto Rico Aqueduct & Sewer Auth., 113 S.Ct. at 689

(rejecting proposed distinction, for purposes of interlocutory ‘ap-

peal, between “cases in which the determination of a State or state

agency’s claim to Eleventh Amendment immunity is bound up with

factual complexities whose resolution requires trial and cases in

which it is not”) (citing Mitchell, 472 U.S. at 527-29 & n.10).

22

initial denial of qualified immunity was based on a legal

error as to the clarity of the law or a legal error as to

the sufficiency of the evidence. In either case, the resolu-

tion of the defendant’s entitlement to qualified immunity

simultaneously disposes of the plaintiff's asserted right to

relief..” Yet the Court has nevertheless considered the

qualified immunity issue to be “collateral,” based on the

fact that its adjudication determines the public official’s

right not to stand trial—a right separable from, and col-

lateral to, the rights asserted by the plaintiff. See Mitchell,

472 US. at 527-29.

This is true even where the basis for deciding the quali-

fied immunity question bears unmistakably on the validity

of the plaintiffs claim of right. In Siegert, the Court

expressly addressed a situation in which the plaintiff “failed

not only to allege the violation of a constitutional right

that was clearly established at the time of [the public

official’s] actions, but he failed to establish the violation

of any constitutional right at all.” 500 U.S. at 233.

There, the Court emphasized that the question whether

the plaintiff had alleged a violation of a .constitutional

right must be resolved before discovery to preserve the

public official’s entitlement to avoid the burdens of litiga-

tion. See id. at 232.

The legal determination that the piaintiff has failed to

allege a violation of a constitutional right could hardly

bear more directly on the “merits” of the plaintiff's case.

Such a determination is not only outcome determinative

in a practical sense (i.e., the plaintiff loses), it also means

that, as a matter of law, the plaintiff's claim had no legal

12 Of course, an unsuccessful appeal by a public official on quali-

fied immunity grounds would not determine the merits or the out-

come of a case. Where, as here, an appeal is based on the contention

that insufficient evidence exists, the appellate court would be decid-

ing no more than that sufficient evidence exists to go to trial; it is

quite possible that the public official would still succeed on the

merits at trial.

23

merit. Nevertheless, the resolution of this question was

treated by the Court in Siegert as a proper subject of inter-

locutory appeal. See Siegert, 500 U.S. 226.

The Court’s decisions therefore demonstrate that a

qualified immunity issue may both implicate the factual

record and decide “the merits” of the case without losing

its “collateral” character under Cohen. The adjudication

of a public official’s entitlement not to stand trial is prop-

erly viewed as collateral to the merits because it deter-

mines a distinct right belonging to the public official,

regardless of the extent to which the merits are directly

implicated in that adjudication. Given this, there is no

basis for denying a public official an interlocutory appeal

of a denial of qualified immunity, simply because of the

legal reason for that denial.

3. To Make The Availability Of Interlocutory Appeal

From A Denial Of Qualified Immunity Turn On

The Legal Reason For The Denial Would Produce

Incongruous And Inequitable Results

The Court has emphasized that “the finality require-

ment should ‘be construed so as not to cause crucial col-

lateral claims to be lost and potentially irreparable injuries

to be suffered.’” Firestone Tire & Rubber Co. v. Risjord,

449 U.S. 368, 376 (1981) (quoting Mathews v. Eldridge,

424 U.S. 319, 331 n.11 (1976)). Yet to disallow inter-

locutory appeal from denials of qualified immunity simply

because they are premised on the “wrong” type of legal

error would do just that. Such a distinction between dif-

ferent types of legal errors for purposes of appealing a

denial of qualified immunity would deny public officials

a right this Court has described as central to the protec-

tion of qualified immunity—the right not to stand trial on

insubstantial claims.”

13 Tronically, such a rule would weaken public officials’ protection

from frivolous lawsuits in precisely those circumstances in which

the public official has acted on firm constitutional and statutory

24

Worse, such a distinction would perpetuate uncertainty

among public officials as to the scope of protection pro-

vided them by the qualified immunity doctrine. Instead

of being free to act within the protected zone of conduct

defined by qualified immunity, secure in the belief that

his or her right not to stand trial in insubstantial cases

will be protected, the public official will be faced with un-

certainty and risk. See Schuck, Suing Our Servants, 1980

S.Ct. Rev. at 325-27. A single error by a trial court as

to the existence of a genuine issue of fact is sufficient to

strip away the public official’s protection against frivolous

lawsuits, subjecting the official—and the community

which that official serves—to the considerable costs and

burdens of trial. This risk can be expected not only to

dissuade some public officials from taking necessary ac-

tion, but also to deter capable persons from seeking public

service at all. See id. at 326 (“Qualified immunity under-

cuts vigorous decision making to the extent that its avail-

ability cannot be readily established.”); Harlow, 457 U.S.

at 814.

The social cost of litigation against public officials is

demonstrated by the fiscal burdens which it places on local

government. According to a 1992 survey conducted by

the National Institute of Municipal Law Officers, over

80% of the responding jurisdictions reported increased

litigation costs during the preceding two years, with the

heaviest budgetary impacts falling disproportionately on

the poorest jurisdictions and “the cities at each end of

the size continuum.” Susan A. MacManus, The Impact

of Litigation on Municipalities: Total Cost, Driving Fac-

tors, and Cost Containment Mechanisms, 44 Syracuse L.

Rev. 833, 834, 836 (1993). Specifically, police liability

cases and civil rights cases were identified as “contributing

ground; comprehensive protection from the burdens of trial would

be available only to the extent the official’s actions fell within

the “gray areas” in which the law is unclear. See Unwin, 863 F.2d

at 133 n.9 (“To afford the two defendants immunity only if the

law had been a little less favorable to them would seem ridiculous.”).

t

25

most to their rising litigation costs over the past three

years.” Id. at 839.

Making appeal from a denial of qualified immunity

unavailable where that denial is based on a determination

that genuine issues of material fact exist could encourage

strategic behavior on the part of plaintiffs, who might fill

the record with insupportable assertions in the hope of

manufacturing a factual dispute that would preclude sum-

mary judgment.” Because even plainly insubstantial

claims take a good deal of time and money to litigate, a

defendant that is unable to terminate the litigation at an

early stage may settle the case rather than litigate it, even

if ultimate success appears certain.” To the extent that

erroneous denials of public officials’ entitlement not to

stand trial are unreviewable, plaintiffs’ leverage in such

cases is greatly enhanced, to the detriment of the public

fisc.

14 A number of factors drive up the cost of these types of cases.

For example, each such case “tends to be complex and quite lengthy,”

“frequently requires the use of outside counsel,” and “tends to rely

heavily on the testimony of expensive expert witnesses.”’” MacManus,

The Impact of Litigation on Municipalities, 44 Syracuse L. Rev.

at 840.

15 See Turner, 848 F.2d at 444 (“[i]t will seldom be difficult for

a plaintiff to plead a violation of clearly established law”). Cf.

Anderson v. Creighton, 483 U.S. at 640 n.2 (“[a] passably clever

plaintiff would always be able to identify an abstract clearly estab-

lished right that the defendant could be alleged to have violated’’).

16 Rising costs of litigation have already led many municipalities

to settle winnable cases as a cost containment measure. See

MacManus, The Impaci of Litigation on Municipalities, 44 Syracuse

L. Rev. at 842 (81.4% of respondents “acknowledge they settle at

least some of their ‘winnable’ cases just to save money’’) ; see also

International City/County Management Association, Law Enforce-

ment Officials Liability Insurance: Current Status—1991 36 (1991)

(analysis of closed liability insurance claims reveals “that the

median defense cost[] is twice the median settlement cost’).

26

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

RICHARD RUDA *

Chief Counsel

LEE FENNELL

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

February 24, 1995 Amici Curiae