Dissenting from a Friday decision, a Ninth Circuit judge asked the U.S. Supreme Court to clarify whether and in what circumstances federal appellate courts can take up an interlocutory appeal when the district court denies a summary judgment motion based on qualified immunity.

Johnson strikes again,” Judge William Fletcher wrote, referring to the high court’s decision in Johnson v. Jones (1995) 515 U.S. 304, and going on to call the law in this area “extraordinarily confused.”

The case here arises from the 2012 shooting of Wayne Steven Anderson by California Highway Patrol Officer John Marsh in the Fresno area. Anderson was permanently paralyzed from the chest down and later died of causes not directly related to the shooting. He sued Marsh in federal court, claiming the officer used excessive force, and Anderson’s estate took over the litigation after he died.

Marsh moved for summary judgment, asserting he had qualified immunity. The district court denied the motion, holding that a reasonable jury could conclude that Anderson didn’t present an imminent threat to Marsh or others, and that the use of deadly force was therefore excessive.

Marsh filed an interlocutory appeal. Relying on Johnson, the Ninth Circuit’s three-judge panel dismissed the appeal for lack of jurisdiction.

In Johnson, the Supreme Court held that in qualified immunity cases, any portion of a district court’s summary judgment order that determines only “evidence sufficiency” is not appealable. By contrast, the high court held, any such order that turns on the application of “clearly established” law to a given set of facts is appealable immediately.

Because Marsh’s appeal had to do with evidence sufficiency, the Ninth Circuit held, it doesn’t have jurisdiction to hear the appeal. “Marsh challenges only the district court’s determination that there is a genuine factual dispute as to whether Anderson appeared to reach for a weapon before Marsh shot him,” the majority reasoned.

In his dissent, Fletcher wrote that he was “sympathetic with the panel majority,” given the unclear case law on this issue, but the Supreme Court’s opinion in Johnson is “puzzling.”

He wrote that he reads Johnson to mean an appellate court has jurisdiction only when the district court denies a summary judgment motion based on evidence the defendant doesn’t dispute — and it doesn’t have jurisdiction when the denial is based on evidence the court assumes to be true but the defendant disputes.

The “vast majority” of denials of summary judgment motions in these cases are entered in the latter instance, Fletcher observed, and Johnson has created “persistent confusion” as appellate courts “have struggled to reconcile its apparent holding with the purpose of qualified immunity,” which is to protect police officers from having to go to trial.

Since Johnson, Fletcher wrote, the Supreme Court has largely ignored its decision in that case, deciding appeals in these cases on the merits without addressing jurisdiction. The court “finally acknowledged” the tension here in Plumhoff v. Rickard (2014) 572 U.S. 765, he wrote, although it still ultimately decided that case on the merits.

After Plumhoff, Fletcher wrote, “the rule now appears to be the following: When a district court relies on plaintiff’s version of disputed evidence in denying the motion for summary judgment, a court of appeals may generally exercise interlocutory appellate jurisdiction.” Under this rule, he wrote, appellate courts can’t hear interlocutory appeals in these cases only when officers provide disputed evidence showing that they weren’t present at the scene and in no way involved in the challenged conduct.

“It is distinctly counterintuitive that this should be the remnant of Johnson that survives,” Fletcher wrote. “Officers who present evidence that they were not even at the scene are among the officers who most deserve the protection of interlocutory appeals.”

Fletcher issued a plea to the Supreme Court to clarify the issue, because “as is evident from this case and countless others, the Court’s Johnson jurisprudence has confused courts of appeals for twenty-five years.”

The case is Estate of Wayne Steven Anderson v. John Marsh, case number 19-15068, in the U.S. Court of Appeals for the Ninth Circuit.

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