Cottrell v. Caldwell

• Decision Date: 03 June 1996
• Docket Number: No. 94-6845,94-6845
• Citation: 85 F.3d 1480
• Parties: Jack COTTRELL, Reverend, as Administrator of the Estate of Leroy Bush Wilson, Plaintiff-Appellee, v. Cynthia D. CALDWELL, individually and in her official capacity as a City of Montgomery Police Officer; S.E. Wilson, Corporal, individually and in his official capacity as a City of Montgomery Police Officer; Eugene S. Kemplin, individually and in his official capacity as a City of Montgomery Police Officer; Spencer T. Henderson, II, individually and in his official capacity as a City of Montgomery Police Officer, Defendants-Appellants, The City of Montgomery, a municipal corporation; the Chief of Police, City of Montgomery, in his official capacity, Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1480

85 F.3d 1480

Jack COTTRELL, Reverend, as Administrator of the Estate of Leroy Bush Wilson, Plaintiff-Appellee, v. Cynthia D. CALDWELL, individually and in her official

capacity as a City of Montgomery Police Officer; S.E.

Wilson, Corporal, individually and in his official capacity

as a City of Montgomery Police Officer; Eugene S. Kemplin,

individually and in his official capacity as a City of

Montgomery Police Officer; Spencer T. Henderson, II,

individually and in his official capacity as a City of

Montgomery Police Officer, Defendants-Appellants,

The City of Montgomery, a municipal corporation; the Chief

of Police, City of Montgomery, in his official

capacity, Defendants.

No. 94-6845.

United States Court of Appeals, Eleventh Circuit.

June 3, 1996.

Thomas C. Tankersley, City of Montgomery, Legal Department, Montgomery, AL, George B. Azar, Azar & Azar, Montgomery, AL, for appellants.

David Gespass, Gespass & Izzi, Birmingham, AL, for appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before TJOFLAT, Chief Judge, and CARNES, Circuit Judge. ^*

CARNES, Circuit Judge:

This case arises out of the death of Leroy Bush Wilson from positional asphyxia as he was being transported in the back of a police car after his arrest. Reverend Jack Cottrell the administrator of the decedent's estate, filed suit under 42 U.S.C. § 1983 alleging that four police officers who arrested or transported Wilson, the police department, and the City of Montgomery had violated his constitutional rights. The district court denied the defendant police officers' qualified immunity summary judgment motion, and the officers brought this interlocutory appeal from that denial. We reverse.

I. THE INTERLOCUTORY JURISDICTION ISSUE

In light of Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), we deem it prudent to examine our jurisdiction to decide this interlocutory appeal. We begin with certain general principles involving interlocutory jurisdiction in qualified immunity cases. In this context, we use the term "interlocutory jurisdiction" to refer to interlocutory appellate jurisdiction pursuant to the Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), doctrine, as applied to qualified immunity cases in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). That jurisdiction exists independently of the final judgment rule exceptions contained in 28 U.S.C. § 1292 and Fed.R.Civ.P. 54(b).

We have no interlocutory jurisdiction to review the grant of summary judgment to a defendant on qualified immunity grounds. Winfrey v. School Bd. of Dade County, Fla., 59 F.3d 155, 158 (11th Cir.1995). Whether we have interlocutory jurisdiction to review the denial of summary judgment on qualified immunity grounds depends on the type of issues involved in the appeal.

One type of issue for these purposes is evidentiary sufficiency: whether the district court erred in determining that there was an issue of fact for trial about the defendant's actions or inactions which, if they occurred, would violate clearly established law. An example is the situation in Johnson v. Jones, --- U.S. at ---- - ----, 115 S.Ct. at 2153-54, where the defendant police officers sought to appeal interlocutorily the district court's determination that there was sufficient evidence from which the trier of fact could find that the defendant officers participated in beating the plaintiff after he was arrested, or stood by and allowed others to beat him. We know from Johnson v. Jones that we do not have interlocutory jurisdiction to review the denial of summary judgment where the only issues appealed are evidentiary sufficiency issues. --- U.S. at ----, 115 S.Ct. at 2156; see also Dolihite v. Maughon By and Through Videon, 74 F.3d 1027, 1033 n. 3 (11th Cir.1996); Johnson v. Clifton, 74 F.3d 1087, 1091 (11th Cir.1996), petition for cert. filed, 64 U.S.L.W. 3742 (U.S. Apr. 25, 1996) (No. 95-1743).

Legal issues underlying qualified immunity decisions are a different matter. An example of such an issue is "whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, ... whether the law clearly proscribed the actions the defendant claims he took." Mitchell v. Forsyth, 472 U.S. at 528, 105 S.Ct. at 2816. In the Mitchell case itself the specific legal issue was whether the defendant's actions in authorizing, as Attorney General, a warrantless national security wiretap were proscribed by clearly established law when those actions occurred in November of 1970. Id. at 530, 105 S.Ct. at 2817-18. We know from Mitchell, which Johnson left intact, that we have interlocutory jurisdiction over legal issues that are the basis for a denial of summary judgment on qualified immunity grounds. See Dolihite, 74 F.3d at 1034 n. 3; Clifton, 74 F.3d at 1091; Haney v. City of Cumming, 69 F.3d 1098, 1101 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1826, 134 L.Ed.2d 931 (1996); McElroy v. City of Macon, 68 F.3d 437, 438 n. * (11th Cir.1995). Recently, this Court has referred to such legal issues as "core qualified immunity" issues. Clifton, 74 F.3d at 1091; Dolihite, 74 F.3d at 1034 n. 3.

The Supreme Court's decision in Behrens v. Pelletier, --- U.S. ----, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), earlier this year, made it clear that interlocutory appellate jurisdiction over the legal issues involved in a qualified immunity question exists even where the district court denied the summary judgment "motion with the unadorned statement that '[m]aterial issues of fact remain as to [the defendant] on the [federal question] claim.' " --- U.S. at ----, 116 S.Ct. at 838 (second and third alterations added). The Court in Behrens specifically rejected the contention that a district court's holding that material issues of fact remain bars interlocutory appellate review of related issues of law, labelling that contention a misreading of Johnson. Id. at ----, 116 S.Ct. at 842. As the Court explained, "Johnson held, simply, that determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified-immunity case;" but "Johnson reaffirmed that summary-judgment determinations are appealable when they resolve a dispute concerning an abstract issue of law relating to qualified immunity--typically, the issue whether the federal right allegedly infringed was clearly established." Id. (citations, internal quotation marks, and brackets omitted). The contrary holdings in Mastroianni v. Bowers, 74 F.3d 236, 238 (11th Cir.1996), and Babb v. Lake City Community College, 66 F.3d 270, 272 (11th Cir.1995), preceded Behrens and cannot be reconciled with it. Where prior panel precedent conflicts with a subsequent Supreme Court decision, we follow the Supreme Court decision. E.g., Lufkin v. McCallum, 956 F.2d 1104, 1107 (11th Cir.1992) ("A panel of this Court may decline to follow a decision of a prior panel if such action is necessary in order to give full effect to an intervening decision of the Supreme Court of the United States."), cert. denied, 506 U.S. 917, 113 S.Ct. 326, 121 L.Ed.2d 246 (1992).

Accordingly, under Johnson, we lack interlocutory appellate jurisdiction over the denial of summary judgment on qualified immunity grounds where the sole issues on appeal are issues of evidentiary sufficiency. However, as clarified by Behrens, Johnson does not affect our interlocutory jurisdiction in qualified immunity cases where the denial is based even in part on a disputed issue of law.

In Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991), the Court explained that "[a] necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." That issue, too, is a legal one and therefore subject to interlocutory review. ¹

The present case involves two legal claims against the defendant officers arising out of the same facts. The first alleges that they violated the Fourteenth Amendment due process right of Leroy Wilson not to be subjected to conditions of custody and confinement creating an unreasonable danger to his safety and life. The district court denied the defendant officers' motion for summary judgment on qualified immunity grounds as to that claim based upon its application of an "either gross negligence or deliberate indifference" standard. (Emphasis added.) In reviewing whether that denial was error, we must of necessity decide whether the legal standard upon which the denial was based is the correct one, and that is an issue of law. Accordingly, we have interlocutory jurisdiction over the appeal from the denial of summary judgment as to the first claim.

Plaintiff's second claim is that the defendant officers used excessive force to arrest him, in violation of the Fourth Amendment. The district court declined to rule on the defendants' motion for qualified immunity summary judgment as to that claim, stating only that in view of its rejection of the defense as to the due process claim "prudence dictates" that it also reject the defense as to the Fourth Amendment claim. The issue of whether that is a proper basis for denying summary judgment, and the related issue of whether summary judgment should have been granted on qualified immunity grounds based upon the facts of this case are issues of law. Accordingly, we have interlocutory jurisdiction over the appeal from the denial of summary judgment as to the second claim.

II. APPELLATE REVIEW OF EVIDENTIARY ISSUES RELATING TO QUALIFIED IMMUNITY IN THE POST-JOHNSON ERA

When it decides whether defendants are entitled to summary judgment, a district court draws the facts from...