Concurrences are not majorities

Something interesting happened over a year ago when one of the judges on the Court of Appeals, Sonia Sotomayor, suggested in a concurring opinion that the Second Circuit has long been misinterpreting the Supreme Court's qualified immunity doctrine. This may mean very little to lay-persons, but qualified immunity is actually quite important, because it means a civil rights case can be dismissed if the court finds that the public officer defendant did not violate clearly established legal standards or he acted in an objectively reasonable manner in arresting or otherwise taking action against the plaintiff. However, as the Court of Appeals reminds today, concurrences are not majorities.

The case is Leone v. Fischer, decided on February 27. In this case, plaintiff sued the police officer over a bad search warrant. The trial court dismissed the case on the basis that the officer had an objectively reasonable basis to arrest the plaintiff. Now, a good lawyer will make any nonfrivolous arguments that are necessary to win the appeal. Here, Leone's attorney argued that "the district court applied an improvidently strict legal standard by considering whether 'officers of reasonable competence could disagree on whether there was probable cause to arrest.'”

Counsel said that Judge Sotomayor's concurrence in Walczyk v. Rio persuasively suggests that this analysis plays no part in qualified immunity analysis and that the only question should be whether the officer violated clearly-established case law in making the arrest. Hey, why not cite an authoritative concurrence on an issue like this? I would do it.

The Court of Appeals in the Leone case was probably impressed that someone actually reads concurring opinions. But that's not enough to win this appeal. As the Court of Appeals observes, "Leone’s argument, which is based on a concurring opinion in Walczyk v. Rio, 496 F.3d 139, 169-70 (2d Cir. 2007) (Sotomayor, J., concurring), was expressly rejected by a majority of the panel in that case, and is not the law of this Circuit." So the Court of Appeals affirms the dismissal of this case.