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Interlocutory Appeals and Qualified Immunity Are Inherently Unfair and Futile

May 10, 2021

Civil rights litigants face the daunting challenge of enforcing constitutionally protected rights against government officials. However, the road to trial is encumbered with the prospect of appeal before trial. Surviving summary judgment in civil rights cases is (metaphorically) tantamount to reaching first base. This has been true since 1985 when the United States Supreme Court decided Mitchell v Forsythe, 472 US 511 (1985). The judicially created doctrine of qualified immunity is silent — in statute and the common law — to the right of interlocutory appeal. However, the Supreme Court extended this procedural protection to government employees. Some legal scholars are of the opinion that the Mitchell decision is replete with flaws in its analysis and creates an unfair advantage for government officials when charged with violations of Constitutional law. The right of interlocutory appeal installs a backstop to governmental liability and has weaponized the procedural safeguard, resulting in unnecessary expense, labor, and delays in resolving legitimate claims for damages arising out of Fourth, Eighth and Fourteenth Amendment violations.

Was Mitchell decided correctly? Pundits have opined that the Supreme Court “fudged” the decision by “shoe horning” an immediate appeal from the denial of immunity into the collateral-order doctrine. The case arose out of allegations that United States Attorney General, John Mitchell, engaged in the unlawful wiretapping of Keith Forsythe. Forsythe sued, claiming that the clandestine recording of him violated the federal wiretapping statutes and his Fourth Amendment rights. Mitchell raised the defense of qualified immunity, insisting that he had acted reasonably under the circumstances and did not violate a clearly established law, citing Harlow v Fitzgerald, 457 US 800 (1982) (“government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate “clearly established” statutory or constitutional rights of which a reasonable person would have known”) Id at 815-819. On cross motions for summary judgment, the District Court held Mitchell liable for the illegal wiretap and scheduled the matter for a hearing on damages. Mitchell immediately appealed the denial of qualified immunity. A divided Third Circuit held qualified immunity was not immediately appealable. However, the Supreme Court reversed, holding that the qualified immunity defenses are subject to an immediate review. In its opinion, the Court held that the doctrine of qualified immunity should be “understood as an entitlement not to stand trial or face the burdens of litigation.” Mitchell at 525. The Supreme Court concluded that qualified immunity is immunity from suit rather than a mere defense to liability [and] is effectively lost if a case is erroneously permitted to go to trial. The Court justified its position by expressing concern over the potential chilling effect of liability on officials that may create a distraction to performing their functions and deter people from seeking jobs in public service.

Other Courts have questioned the validity of the decision as being contradictory to its intended purpose, i.e., speedy dismissal of frivolous claims. Trial Courts have been repeatedly instructed to resolve the question of qualified immunity at the earliest possible stage in the litigation. Binkovich v Barthelamy 104 US Dist LEXIS 114851 (N.D. Cal 2014) Some courts have been critical of interlocutory appeals because the process requires substantive briefing for both parties, potentially oral argument before an appellate panel and a year (or longer) wait for a decision. All of this in place of a trial that could have finished in less than a week.

Surprisingly, the right to an immediate appeal has not yielded the results governmental agencies desire. A Yale Law Journal study sampled five federal districts (not including Michigan) and found that qualified immunity “rarely functions as expected.” While the study found that interlocutory appeals limit access to the courts for many, it demonstrated that plaintiffs were successful in 57.7 percent of the cases. In fact, qualified immunity served as a basis for dismissal in only 3.9 percent of the cases within the study. (Joanna Schwartz, “How Qualified Immunity Fails,” 127 Yale L.J. 1 (2017)).

Moreover, the notion that the interest of economics is best served by allowing interlocutory appeals is not only antiquated but debunked by the reality of municipal risk management. According to the National League of Cities, 83 percent of municipalities with populations greater than 100,000 are insured, providing indemnity to the government employees against settlements and judgments. Therefore, allowing government officials to protract litigation through arduous and expensive appellate proceedings does nothing more than enrich defense lawyers and oppress the rights of civil rights litigants seeking justice.
Perhaps, the current United States Supreme Court will revisit the Mitchell decision and analyze it within the modern context.


A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.

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