Dissenting Ninth Circuit Judge Makes “Plea to the Supreme Court” to Fix Interlocutory Appeals of Qualified Immunity

A split panel in Estate of Anderson v. Marsh, No. 19-15068 (9th Cir. Jan. 15, 2021) holds that the court of appeals lacks jurisdiction over an interlocutory appeal – at the summary judgment stage – of a denial of qualified immunity. The dissenting judge, though, implores the Supreme Court to review the appellate jurisdiction issue, pointing to the inter- and intra-circuit splits over the issue.

The case, brought under 42 U.S.C. § 1983, alleged that California Highway Patrol Officer (CHP) Marsh used excessive force against Anderson. The officer fired two shots into his vehicle following a high-speed pursuit, after the plaintiff collided with a chain-link fence. Marsh moved for summary judgment on qualified immunity.

The district court denied qualified immunity, “identif[ying] several aspects of the evidentiary record that undercut Marsh’s testimony that Anderson made a sudden, threatening movement toward the passenger side of his car” that might have warranted the use of deadly force. “[O]n the Estate’s version of the facts in the record, ‘Anderson was sitting, unarmed, in the driver seat of his car, which was stuck on a chain link fence [and] had already stopped rocking back and forth, and Anderson had one hand on the steering wheel and the other [hand] on the gear-shift’ at the time he was shot.” The “clearly established” law at the time, Wilkinson v. Torres, 610 F.3d 546 (9th Cir. 2010), held “that an officer may not use deadly force to apprehend a suspect where the suspect poses no immediate threat to the officer or others.”

Marsh appealed the summary judgment order, but the panel majority holds that the court has no jurisdiction to review this order. The decision hinges on the judges’ interpretation of Johnson v. Jones, 515 U.S. 304 (1995). There, the Supreme Court held that “[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.’”

The panel majority interprets Johnson to mean that if the district court finds the evidence merely “insufficient to raise a genuine issue of material fact, we lack jurisdiction,” while if “the defendant’s appeal raises purely legal questions, however, such as whether his alleged conduct violated clearly established law, we may review those issues.” Following this standard, “we conclude that we lack jurisdiction over this appeal because—in light of his concessions at oral argument—Marsh challenges only the district court’s determination that there is a genuine factual dispute as to whether Anderson appeared to reach for a weapon before Marsh shot him.

Judge William Fletcher, dissenting, implores the Supreme Court to review split of authority in the lower courts. “Johnson has created persistent confusion as courts of appeals, including our own, have struggled to reconcile its apparent holding with the purpose of qualified immunity …. The confusion in our sister circuits is matched in our own circuit. In some cases, we have exercised appellate jurisdiction where genuine issues of material fact existed and the district court viewed the evidence in the light most favorable to the plaintiff …. In other cases, including the case now before us, we have denied appellate jurisdiction … [And in] some cases, we have tried to have it both ways.”

“I close with a plea to the Supreme Court. As is evident from this case and countless others, the Court’s Johnson jurisprudence has confused courts of appeals for twenty-five years …. I respectfully ask the Supreme Court to tell us clearly, in an appropriate case, whether and in what circumstances an interlocutory appeal may be taken when the district court, viewing disputed evidence in the light most favorable to plaintiff, has denied a motion for summary judgment based on qualified immunity”

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