No qualified immunity for now as police misconduct case proceeds to trial

The federal courts have a built-in mechanism that makes cases move more quickly: you cannot appeal every ruling that comes your way. The only appealable rulings arise when the case is over. That way you have one appeal per case, unlike the state system in New York, where every ruling can be appealed even if it does not end the case. The exception to the strict federal rule is appeals from the denial of qualified immunity. But even that exception has limits.

The case is Franco v. Police Officer Gunsalus, issued on August 28. This is a qualified immunity appeal, taken up by a police officer who was denied that relief in the district court, which instead ordered a trial. The idea behind immediate qualified immunity appeals is that the Supreme Court says this immunity protects government officials, including police officers, from suit, so this question must be resolved as early in the case as possible. Qualified immunity exists to give the police the benefit of the doubt in close cases, especially when the case law is not clear on the issues raised in the case. But if the district court states in denying the qualified immunity motion that the jury must resolve factual issues before the trial court can take up the legal question of qualified immunity, then that ruling is not appealable. This is tricky stuff, but Section 1983 lawyers are familiar with this because these fine distinctions are the difference between an immediate appeal, which can delay trial for a year or more, and an immediate trial.

This case began when plaintiff showed up at a New Year's Eve party to find that the police were directing everyone to leave. Plaintiff stuck his head into a friend's vehicle to talk about the situation. The police claim they told plaintiff to disperse but he did not listen, and that he grabbed an officer and they wound up on the ground, prompting the police to punch plaintiff in the face. Plaintiff, in contrast, says the police never told him to disperse and that they assaulted him for no reason. What really happened? That's what juries are for. And if the Covid-19 crisis ever subsides, we may actually have a trial in this case. While the City filed a motion for summary judgment, the trial court said a disputed factual issue -- whether the police had actually ordered plaintiff to disperse -- must be resolved a trial. That means no qualified immunity for the officers, for now anyway. If the jury tells the judge that the police did order plaintiff to leave and that plaintiff ignored that order, then the police may invoke qualified immunity.

The Court of Appeals (Calabresi, Pooler and Carney) find there is no appellate jurisdiction because an exception to the you-can-appeal-now-from-a-qualified-immunity-denial rule does not count when the trial court says a factual dispute precludes any finding of qualified immunity. The Supreme Court said that in Johnson v. Jones, 515 U.S. 304 (1995). The Second Circuit notes that it has strictly followed Johnson's holding over the years, even in cases where it might seem the district court really blew it in holding that factual issues exist for trial on the qualified immunity question. The Second Circuit pauses to raise that issue in resolving this appeal, but it moves on to dismiss the appeal in its entirety under Johnson. This case will proceed to trial.