United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Aiken, United States District Judge
civil rights action, plaintiff Alvin Johns asserts various
federal and state claims against defendants, the City of
Eugene ("the City") and Eugene Police Department
Officers Yolanda Anderson and Biyan Inman, in connection with his
arrest. After defendants moved for summary judgment on all
claims, I held that plaintiffs Fourth Amendment and
negligence claims could proceed to trial. Johns v. City
of Eugene, 2018 WL 634519, *1 (D. Or. Jan. 30, 2018),
Defendants appealed my denial of Officer Anderson and Officer
Inman's assertion of qualified immunity to the Ninth
Circuit and filed a motion for a stay of proceedings pending
the resolution of that appeal. Plaintiff responded by moving
to certify defendants' appeal as frivolous. For the
reasons set forth below, defendants' motion is granted
and plaintiffs motion is denied.
a pretrial appeal of an order denying qualified immunity
normally divests the district court of jurisdiction to
proceed with trial, the district court may certify the appeal
as frivolous and may then proceed with trial[.]"
Padgett v. Wright, 587 F.3d 983, 985 (9th Cir.
2009); see also Behrens v. Pelletier, 516 U.S. 299,
310 (deeming "appropriate" the Ninth Circuit's
processes for certifying qualified immunity appeals as
frivolous). An appeal is frivolous if it is "wholly
without merit." United States v. Kitsap Physicians
Serv., 314 F.3d 995, 1003 n.3 (9th Cir. 2002).
motion to certify an interlocutory qualified immunity appeal
as frivolous raises an interesting question: how does the
"wholly without merit" rule, id. at 1003
n.3, compare to the qualified immunity test itself, which
requires the trial court to find that every reasonable
officer would have been on notice that his conduct violated
the law, Thompson v. Rahr, __ F.3d __, 2018 WL
1277400, *4 (9th Cir. Mar. 13, 2018)? At first glance, it is
a bit difficult to tease apart those two standards. It is
easy to see how an ordinary claim might fail to survive
summary judgment yet contain enough merit to rise above being
frivolous. Cf., e.g., Patton v. Cty. of Kings, 857
F.2d 1379, 1381 (9th Cir. 1988) ("A prevailing civil
rights defendant should be awarded attorney's fees not
routinely, not simply because he succeeds, but only where the
action brought is found to be unreasonable, frivolous,
meritless or vexatious, ") (internal quotation marks
omitted). But by definition, qualified immunity awards all
close legal calls to the state actor. A court denying
qualified immunity at the summary judgment stage must
conclude that, viewing the facts in the light most favorable
to the plaintiff, no reasonable official could have
believed that her conduct was unconstitutional. When a
violation of the law is objectively clear, it seems
reasonable to say that it by definition is "wholly
without merit" to argue otherwise. Amwest Mortg.
Corp. v. Grady, 925 F.2d 1162, 1165 (9th Cir. 1991).
standards cannot be the same, because certification of a
qualified immunity appeal as frivolous is the exception, not
the rule. See Padgett, 587 F.3d at 985. Frivolous
appeals are more than mere losing appeals; they are appeals
from decisions "so plainly correct that nothing can be
said on the other side." Apostol v. Gallion,
870 F.2d 1335, 1339 (7th Cir. 1989); see also Marks v.
Clarke, 102 F.3d 1012, 1017 n.8 (9th Cir. 1996) (citing
Apostol with approval). That is a high bar.
Supreme Court reiterated just last term, Fourth Amendment
cases-and the determinations of qualified immunity that often
accompany them-are intensely fact-specific. See District
of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018)
("We have stressed that the specificity of [the
applicable clearly established law] is especially important
in the Fourth Amendment context, ") (internal quotation
marks omitted). As plaintiff concedes, there is no directly
on-point precedent for the factual scenario presented in this
case. I decline to certify defendants' appeal as
frivolous in large part due to the absence of such precedent.
See Id. at 590 (discussing the "rare obvious
case, where the unlawfulness of the officer's conduct is
sufficiently clear even though existing precedent does not
address similar circumstances, " but stating that
"a body of relevant case law is usually necessary to
clearly establish the answer with respect to probable
cause") (internal quotation marks omitted).
insists that the denial of qualified immunity here is not the
sort of decision that is reviewable through an interlocutory
appeal, citing the existence of disputed questions of
material fact. Plaintiff misunderstands the applicable
standard. A pretrial appeal of a qualified immunity decision
is improper where immunity hinges on disputed
facts-i.e., if the jury believes the arresting
officer's testimony, then qualified immunity applies;
but, if the jury believes the plaintiffs testimony, the
immunity defense is not available. See Johnson v.
Jones, 515 U.S. 304, 313 (1995) (concluding that a
district court's summary judgment order, "though
entered in a 'qualified immunity' case, " is not
reviewable if it "determines only a question of
'evidence sufficiency, ' i.e., which facts a
party may, or may not, be able to prove at trial."). By
contrast, a denial of qualified immunity is immediately
appealable so long as the appeal is "conceptually
distinct" from the merits of the action in that the
appellate court reviewing the denial of the defendant's
claim of immunity need not consider the correctness of the
plaintiffs version of the facts, nor even determine whether
the plaintiffs allegations actually state a claim. All it
need determine is a question of law: whether the legal norms
allegedly violated by the defendant were clearly established
at the time of the challenged actions.
Id. at 312 (quoting Mitchell v. Forsyth,
472 U.S. 511, 528 (1985)). Defendants' qualified immunity
argument before this Court was, appropriately, that the
officers did not violate clearly established law even when
the evidence in the summary judgment record is viewed in the
light most favorable to plaintiff My rejection of that
argument is an immediately appealable collateral order.
appeal is not frivolous, which means that this Court is
divested of jurisdiction to proceed to trial on plaintiffs
Fourth Amendment claim until after the Ninth Circuit resolves
that appeal. Because the factual questions underlying the
Fourth Amendment claim and the state-law negligence claim are
closely related (perhaps even identical), and because
supplemental jurisdiction over the negligence claim is based
on federal question jurisdiction over the constitutional
claim, it would be inefficient to proceed to trial on the
negligence claim alone.
I GRANT defendants' motion for a stay (doc. 87) and DENY
plaintiffs request to certify that appeal as frivolous (doc.
90). The parties are ordered to file a joint status report
within thirty days of the issuance of the mandate in
defendants' interlocutory appeal.