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A Procedural Oddity on Qualified Immunity

The Supreme Court granted certiorari in an odd qualified immunity case this morning, Ortiz v. Jordan, 09-737.

Qualified immunity is an element of the Supreme Court's efforts to strike a balance between providing redress for people injured by police misconduct and the need for vigorous law enforcement. Because the line between legal and illegal is often fuzzy and may be determined only long after the fact, exposing police and correctional officers to personal liability for crossing a fuzzy line would result in timid enforcement, staying far away from the line, with resulting harm to innocent victims. The doctrine of qualified immunity gives the officer a shield from liability if his actions did not violate a right that was clearly established at the time of the action.

But a lawsuit is damaging even if the officer prevails. For this reason, the Court has been generous in providing officers with the right to seek summary judgment and to appeal from denial of summary judgment. Summary judgment is a procedure for avoiding trial, allowing a court to decide that even if we assume all genuinely disputed facts in the plaintiff's favor, the defendant still wins as a matter of law, so no trial is needed.

Is there any reason to allow an appeal of denial of a summary judgment motion when the defendant did not immediately appeal but instead went to trial, received an adverse jury verdict, and then appealed?

That seems odd to me. The purpose of avoiding the burden of trial is now moot. The usual procedure for challenging an off-the-rails jury verdict is a motion for "judgment as a matter of law" under Rule 50, also known as judgment n.o.v. for the old Latin term. Why not make that motion and then appeal the denial, instead of dredging up the pretrial summary judgment motion?

According to the Brief in Opposition, the defendants in this case did make a Rule 50 motion at the close of evidence but did not renew it after the verdict. They then appealed the verdict, not specifically the denial of either the summary judgment motion or the Rule 50 motion. Instead of asking whether a summary judgment motion can be appealed posttrial, it would make more sense to ask whether an appellate court can review the ruling on the close-of-evidence Rule 50 motion even though it is not renewed post-verdict. A rule requiring a party to renew a motion the court has already denied, when no new evidence has been introduced in the interim, seems pointless. Rule 50 is indeed the subject of the defendants' alternative Question Presented in the B.I.O.


You say: "it would make more sense to ask whether an appellate court can review the ruling on the close-of-evidence Rule 50 motion even though it is not renewed post-verdict." But the Supreme Court has already answered that question "No." See Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006). That is why the respondent appealed the denial of the summary judgment motion.

From the Brief in Opposition:

Respondents’ briefs never said that their entitlement to qualified immunity warranted reversal of the denial of summary judgment. Instead, Respondents argued that the verdict should be reversed. For example, Respondents urged in one "issue presented for review" that "the verdict was against the weight of the evidence in that the actions of Defendant Bright did not amount to any constitutional violation," Brief of Defendants-Appellants ("Apt. Br.") at 2, and in another, that "as a matter of law, Defendant Jordan’s actions do not meet the high standard for a constitutional violation of failure to protect," id. Throughout the briefs, Respondents cited trial evidence.

The reply brief is very convincing in refuting the respondents' claim of a vehicle issue related to the Rule 50 motion -- convincing enough for the Court to grant cert, apparently.

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