Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals

When a district court denies qualified immunity at summaryjudgment, defendants have a limited right to immediatelyappeal that decision. In Johnson v. Jones, the U.S. SupremeCourt held that courts hearing these appeals have jurisdictionto address only whether the facts the district court took as truein denying immunity amount to a clearly established violationof federal law. They lack jurisdiction to look behind the factsthat the district court assumed were true to see whether theevidence supports those facts. Despite this seemingly clear rule,defendants regularly flout Johnson’s jurisdictional limits,taking improper appeals that create extra work and imposewholly unnecessary costs and delays on civil rights plaintiffs.And the Court’s decision in Scott v. Harris—which appears toviolate Johnson’s limits without mentioning Johnson or evenappellate jurisdiction—has made the jurisdictional rulesgoverning qualified-immunity appeals even less certain.In this Article, I address the law governing jurisdiction inqualified-immunity appeals from summary judgment.

I showthat Johnson can be read to mean only that the courts ofappeals generally lack jurisdiction to review whether thesummary-judgment record supports the district court’sassumed facts. I explain how to reconcile the analysis in Scottwith the rule in Johnson: Scott created an exception to thegeneral limit on reviewing the district court’s assumed factswhen something in the record blatantly contradicts those facts.