Blown deadline kills qualified immunity appeal

We have another police misconduct case that reaches the Court of Appeals because the defendants want qualified immunity. Normally, when the district court denies qualified immunity, the defendants can file an immediate appeal. This case is different. Defendants take up an appeal, but they cannot prosecute the appeal because of a procedural error.

The case is Maye v. City of New Haven, issued on December 26. Plaintiff alleges that the officers evicted him from the building that he leased for his gym business. The officers wanted to file a motion for summary judgment on qualified immunity grounds. Here's the problem: the trial court set a deadline to file such a motion, but the officers missed the deadline by six months. The trial court rejected the motion on timeliness grounds and the officers took up an appeal to the Second Circuit.

The Court of Appeals dismisses the appeal on jurisdictional grounds. The officers argued that the appeal was OK because the denial of qualified immunity allows you to file an immediate appeal. Technically, qualified immunity was denied. But this was not the traditional denial of qualified immunity. The denial was because the motion was untimely. The question for the Court of Appeals is whether it has authority to hear an appeal under these circumstances.

Much to the officers' dismay, I am sure, the Court of Appeals (Calabresi, Sullivan and Perez) says the appeal is untimely and therefore the Court has no jurisdiction to hear it. Remember, the federal system normally only allows you to take up an appeal when the entire case is over. Qualified immunity rulings are the exception to that rule, but this case does not fall within that exception because immunity was denied over a missed deadline. Here is how the Court of Appeals sees it: "To be sure, the City’s tardiness may have cost it its 'immunity from suit,' leaving it with 'a mere defense to liability.' But the City has only itself to blame for its predicament. Because qualified immunity, unlike subject matter jurisdiction, is an affirmative defense that can be waived, we decline to extend the collateral order doctrine to allow immediate appeal from an order denying as untimely a motion asserting that defense."