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There's a reason why the Appellate Divisions in Brooklyn and Manhattan have 20 cases on the calendar each day and the U.S. Court of Appeals has a fraction of that: in state court, you can appeal anything at any time, but in federal court, any court rulings cannot be appealed until the court enters a final judgment, years after the case was originally filed. There is an exception to that rule in federal court, as shown in this wrongful death case.
The case is Scism v. Ferris, a summary order issued on February 1. Ferris is a detective for the City of Schenectady. He and a partner, Kent, were sitting in an unmarked van by plaintiff's residence, preparing for an undercover drug buy. Believing they were up to no good, plaintiff told the guys in the van he did not want anyone selling drugs in his neighborhood. When plaintiff walked away, the van guys saw that plaintiff had a gun. Moments later, defendant fired his gun at plaintiff. This is where they factual disputes come in, which is why the trial court denied defendant's motion for summary judgment. The trial court wrote:
there is contradictory evidence regarding Scism's final acts. To that end, Kent testified that he saw Scism start to make a move towards Ferris with his gun in his hand. Ferris, likewise, testified that he saw Scism stop running, grab his handgun with his right hand, pull it out of his waistband, and begin to turn towards him. The [confidential informant] on the other hand, testified that he did not see Scism turn or make any movement towards Ferris or Kent before he was shot. Furthermore, the medical evidence demonstrates Scism was struck in the back of his head and the medical examiner testified that it would be “extremely unlikely” that it would have hit the back of his head if he had been facing Ferris shortly before he was shot.
Ferris moved for summary judgment on qualified immunity grounds, claiming he acted reasonably in firing his gun, but that motion failed in the district court, which reasoned that "there are genuine issues of material fact regarding the reasonableness of Ferris's use of force."
Ferris appeals, but the Court of Appeals agrees he cannot win qualified immunity at the moment. There was no final judgment, but an immunity appeal can be taken before the case ends, on the theory that if you really are immune from suit, then making the officer go to trial is a waste of time. Problem is that you don't get qualified immunity if the jury resolves the evidence in a way that shows the officer did not act reasonably. That's the case here.The Second Circuit (Lohier, Leval and Perez) says it has jurisdiction over the appeal if the court bases its analysis "on an independent review of the record, including the district court's explanation of facts in dispute." But that review shows there really are disputed issues of fact that cannot be resolved on the papers. Since plaintiff's estate can win the case at trial, the appeal is rejected.
For you Section 1983 junkies, it does not look to me that the law is clear about when you can appeal from the denial of qualified immunity when the trial court says there are disputed issues of fact as to whether the defendant violated the law. In Lennox v. Miller, 968 F.3d 150 (2d Cir. 2020), which the Circuit cites in this case in holding that it did have jurisdiction over the appeal, the Court of Appeals said "We ordinarily do not have jurisdiction to hear an appeal of a denial of summary judgment. Nonetheless, we have appellate jurisdiction to hear an interlocutory appeal from a district court's denial of qualified immunity “to the extent it can be resolved on stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find.”
But in Franco v. Gunsalus, 972 F.3d 170 (2d Cir. 2020), the Court said "Our court . . . has sobserved, “[t]he Supreme Court has made it clear that we
lack appellate jurisdiction to decide an interlocutory appeal from a
district court's denial of a claim of qualified immunity to the extent
that the denial involves only a question of evidence sufficiency.” For that proposition, Franco cites Swain v. Town of Wappinger, 805 Fed. Appx. 61 (2d Cir, 2020), which said, “If the District Court says the evidence was
sufficient to create a jury issue, then that is the end of our
review.” If you have read this far and are looking at the language in Miller and Franco closely, it may look like a divergence in qualified immunity/interlocutory appeal doctrine.
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