Another primer on premature qualified immunity appeals in police misconduct cases

This case alleges that a Vermont police officer beat up a bar-goer, prompting an excessive force lawsuit under Section 1983. The district court rejected the officer's motion for summary judgment, holding that factual disputes prevented the grant of qualified immunity and that the jury would have to decide what really happened before the court could determine whether the officer acted reasonably under the circumstances, a prerequisite to immunity. The officer appealed, and the Court of Appeals sends the case back to trial on this issue.

The issue is Jok v. City of Burlington, issued on March 15, nearly a year after the case was argued. I don't know why it took so long for this decision to issue, as it applies settled rules governing the appealability of qualified immunity denials in cases like this, and the decision does not appear to resolve any difficult legal issues. Still, the ruling provides good guidance for lawyers who handle these cases. If you have a Section 1983 case and someone wants to appeal from the denial of qualified immunity, you need to read this case.

Generally, you cannot appeal the denial of summary judgment right away. The party that sought summary judgment, usually the defendant, has to go through a trial first before the case can reach the Court of Appeals. An exception to that rule is qualified immunity denials, as immunity protects public officials (including police officers) from litigation, and we want immunity to attach as early as possible. Immunity attaches when the defendant acts reasonably under the circumstances. But an appeal from the denial of qualified immunity is only permissible when the defendant adopts the plaintiff's facts and argues that those facts prove he acted reasonably, or the case involves some issue of law that can be resolved right away.

While this case alleges excessive force and we have various factual disputes about what happened and whether the officer acted reasonably, the officer appealed from the denial of qualified immunity without accepting the plaintiff's version of events for purposes of the appeal. Instead, the Court of Appeals (Lee, Perez and Merriam) notes that the officer argues from his own version of events in seeking qualified immunity. That is a rookie (but common) mistake, and counsel tried to modify the appellate argument in the reply brief, but even the reply brief argues the defendant officer's version of events. Let's face it: it is hard to accept the opposing party's version of events for any purpose, even when you are trying to have the case dismissed. What it all means is the appeal is not appropriate, and the Court of Appeals does not determine if the officer deserves qualified immunity. The case returns to the district court for the jury to worry about it.