Posted by Orin Kerr:
Qualified Immunity With Disputed Facts:
http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1238098103
Sorry for raising a post that is probably only of interest to readers
who follow qualified immunity law, but reader Peter Batalden brings up
an interesting question about a recent Ninth Circuit case, [1]Tortu v.
Las Vegas Metro. Police Dep�t,___ F.3d ___, 2009 WL 514228 (9th Cir.
Mar. 3, 2009). The question is, how can police officers raise
qualified immunity issues on appeal when their claims of qualified
immunity are denied in the District Court because the facts are
disputed? To read Peter's e-mail follow the link below.
([2]show)
Peter writes:
In Tortu, police officers did not, during trial, make a Fed. R.
Civ. P. 50(a) motion seeking qualified immunity, but they did make
that argument in a post-judgment Rule 50(b) motion. The Ninth
Circuit held the argument in the Rule 50(b) motion was forfeited.
The panel concluded that �[w]hen a qualified immunity claim cannot
be resolved before trial due to a factual conflict, it is a
litigant's responsibility to preserve the legal issue for
determination after the jury resolves the factual conflict. A Rule
50(a) motion meets this requirement.� Id. at *6 (emphasis added).
There�s nothing wrong with directing officers seeking qualified
immunity to raise their arguments �after the jury resolves the
factual conflict,� meaning after the jury returns a verdict. That�s
when the facts have been found and the court can address the legal
question of whether the pertinent constitutional right was clearly
established. But the panel blundered in requiring parties to do so
in a Rule 50(a) motion. It�s not even possible. Under Rule
50(a)(2), a party can only challenge the legal sufficiency of the
evidence �before the case is submitted to the jury.�
Thus, the Ninth Circuit has directed officers that, to preserve
qualified immunity arguments for appeal, they must file an untimely
Rule 50(a) motion. This is absurd on its face because a party who
files an untimely Rule 50(a) motion cannot seek post-judgment
relief under Rule 50(b), see Nitco Holding Corp. v. Boujikian, 491
F.3d 1086 (9th Cir. 2007), which in turn means he cannot raise
those arguments on appeal, see Unitherm Food Sys., Inc. v.
Swift-Eckrich, Inc., 546 U.S. 394 (2006).
The upshot is that officers seeking qualified immunity will never
be able to obtain appellate review in this situation�the Ninth
Circuit has shoehorned them into using a pre-verdict procedural
device that is unavailable after trial when they must raise the
issue.
Any thoughts? Is Peter right or wrong?
References
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2. file://localhost/var/www/powerblogs/volokh/posts/1238098103.html
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