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Abstract

In Mitchell v. Forsyth (1985) the Court ruled that interlocutory appeals can be taken by government officials from denials of motions for summary judgment based on qualified immunity. Johnson v. Jones (1995) ruled that these interlocutory appeals are limited to legal questions, not matters of fact. This limited the effect of the Court’s holding in Anderson v. Creighton (1987) that some measure of factual similarity between prior reported cases and governmental wrongdoing is necessary to overcome qualified immunity. Hope v. Pelzer (2002) further cabined Anderson by rejecting the Eleventh Circuit’s conclusion that government wrongdoing must be “materially similar” to conduct previously declared unconstitutional to support liability.

Qualified immunity’s success rate fell precipitously in the Eleventh Circuit following Hope, a decline that was attributable, in large part, to synergy between Hope and Johnson v. Jones. Hope allowed § 1983 plaintiffs to plead facts that more easily withstood qualified immunity. Johnson precluded the Eleventh Circuit from questioning these factual allegations. Together these developments made it difficult for appellate courts to award qualified immunity—at least at the interlocutory stage.

The Supreme Court recently in Scott v. Harris (2007) cast doubt over whether Johnson v. Jones remains sound—and whether qualified immunity will continue its post-Hope wane. In the course of holding that police officers’ intentionally ramming a suspect’s car did not violate the Fourth Amendment, the Court in Harris implicitly authorized interlocutory fact-finding by appellate courts in § 1983 cases. Specifically, the Court in Harris relied on a videotape of the officers’ actions to conclude that their force was reasonable. Because the same videotape was found to be inconclusive by both the district court and the Eleventh Circuit, Harris can only mean that interlocutory appellate fact-finding is sometimes permissible. With this increased appellate scrutiny, qualified immunity rates are likely to increase—especially in the Eleventh Circuit.

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