Monday, October 16, 2017

Morales v. Fry (9th Cir. - Oct. 16, 2017)

Sometimes procedure can be a sly way to cut back on substance.  Here's a good example.

The Ninth Circuit holds -- as have most (but not all) circuits -- that it's error to submit a "qualified immunity" issue to the jury.  Instead, that issue is supposed to be decided by a judge.

Fair enough.  That's indeed how most qualified immunity issues are decided anyway:  on summary judgment.  It also makes sense.  An officer is entitled to qualified immunity if it was not "clearly established" that what he or she did violated the person's constitutional rights.  That inquiry in turn substantially relies on evaluating precedent to see which principles are clearly established and which are not.  That's a task that's well-suited to a judge and poorly suited to a jury.

Hence the holding.

The thing is, though, that lots of times, the issue of whether a certain violation is "clearly established" relies a ton on disputed facts.  Plaintiff says X, Defendant says Y.  X is a clearly established violation of rights, but Y is not.  You can't grant summary judgment since there's a genuine issue of material fact.  Which is why there's an incentive to turn the issue over to the jury and let them decide which is which.  Particularly when the facts do not involve a clear-cut choice between X and Y, but instead involves lots of factual gradations in between.

So when the facts are what determine whether there's qualified immunity, you can see why you might want to turn it over to the jury.  Since it's the one who gets to decide the facts.

But the Ninth Circuit says that's improper.  It's only for the judge.

You see the complexity there, though.  So does the judge get to resolve the disputed facts?

No, says the Ninth Circuit.  The jury still decides that.

But how?  And how do they communicate those findings to the judge if the qualified immunity issue is not submitted to it?

The Ninth Circuit suggests that a district court might want to submit special interrogatories to the jury.  That works.  But the district court isn't required to do so.  It can just have the jury render a general verdict instead.  Then we're back to square one.  Plus, there are some cases in which special interrogatories may not be particularly helpful -- or, worse still, confusing.  Maybe the relevant facts regarding qualified immunity are somewhat different than those involved in the underlying violation.  Or maybe it's just too difficult to say to the jury, for example, "Okay, I know you just found that there was excessive force, but can you please tell me how much excessive force, because that's what's going to tell us whether the underlying right was clearly established."  Some questions just can't be asked with the required precision.

So what happens then?

The Ninth Circuit (not surprisingly) has an answer.  It says that if you don't have the jury expressly find the relevant facts -- either because you can't or you choose not to have 'em do it -- then the judge who's deciding the qualified immunity issue adjudicates it viewing all inferences in favor of the non-moving party (i.e., the plaintiff).

And now you get what I mean when I said that sometimes procedure can be used to affect, sometimes dramatically, the substance.

Because now you're importing the summary judgment standard into the resolution of the merits at and after a trial.  Once you do that, qualified immunity is hard to win.  Because the defendant who claims such a defense already (presumably) lost that issue on summary judgment (as well as on interlocutory appeal), and was at this point to get the facts resolved by a jury and then -- with that actual resolution in hand (not merely a hypothetical one with all facts resolved against him) -- prevail on the defense.

No dice, however.  Now, unless there's an express factual finding by the jury, the judge does the same thing she did before on the summary judgment motion.  E.g., deny the motion, since you view all of the disputed facts in favor of the non-moving party.

Procedure makes a difference.