Dennis Goddard and Bonnie Goddard v. Pete Urrea, Gene Ford , 847 F.2d 765 ( 1988 )

JOHNSON, Circuit Judge,

dissenting:

I dissent from the majority’s dismissal of this appeal for lack of jurisdiction. In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2818, 86 L.Ed.2d 411, 427-28 (1985), the Supreme Court held that “a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law,” is appealable pursuant to the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528, 1536 (1949).¹ The Mitchell Court stressed that the qualified immunity defense not only served as a defense to liability, but operated as an immunity from suit. Consequently, the Court recognized that a defendant would lose the “immunity-to-suit” protection if the denial was unreviewable until after a final judgment. See 472 U.S. at 526-27, 105 S.Ct. at 2815-16, 86 L.Ed.2d at 425. Similarly, the Court also recognized that the district “court’s denial of summary judgment finally and conclusively determines the defendant’s claim of right not to stand trial on the plaintiff’s allegations.” Id. at 527, 105 S.Ct. at 2816, 86 L.Ed.2d at 425-26 (emphasis in original).

Finally, as relevant here, the Court observed that because

qualified immunity is in part ah entitlement not to be forced to litigate the consequences of official conduct[,] a claim of immunity is conceptually distinct from the merits of the plaintiff’s claim that his rights have been violated. An appellate court reviewing the denial of the defendant’s claim of immunity need not consider the correctness of the plaintiff's version of the facts, nor even determine whether the plaintiff’s 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.... [footnote 9]

Id. at 527-28, 105 S.Ct. at 2816-17, 86 L.Ed.2d at 426 (citation omitted). Footnote 9 provides: “We emphasize at this point that the appealable issue is a purely legal one: whether the facts alleged ... by the plaintiff ... support a claim of violation of clearly established law.” Id. at 528 n. 9, 105 S.Ct. at 2816 n. 9, 86 L.Ed.2d at 426 n. 9.

Because Mitchell permits appellate jurisdiction when the district court’s denial turns on an issue of law, an appellate court cannot resolve factual disputes. But the above passage and accompanying footnote from Mitchell clearly demonstrate that the qualified immunity analysis does not require a resolution of factual disputes. Rather, that analysis assumes the validity of the plaintiff’s version of the facts and then examines whether those facts “support a claim of violation of clearly established law.” Consequently, the majority has erred by concluding that this appeal must be dismissed because factual disputes remain.

Similarly, the majority has misplaced its reliance on Riley v. Wainwright, 810 F.2d 1006 (11th Cir.1986). In that case, this Court reasoned:

Mitchell v. Forsyth held that “a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” In the present case the district court’s denial of defendant’s motion for summary judgment did not turn on an issue of law; the court denied defendants’ claim of qualified immunity because the case required substantial factual development before it could be determined with finality whether Riley had been subjected to constitutional deprivation and, if so, whether some or all of the defendants were entitled to the benefit of qualified immunity. The district court’s order is therefore not a final ap-pealable decision.

Id. at 1007 (citations omitted) (emphasis added).

Riley does not apply to the present case for two reasons. First, the district court’s denial in the present case clearly turned on an issue of law:²

If, as the plaintiffs contend, the defendants falsely informed Mrs. Goddard that the subpoena was a search warrant and only partially or obscurely explained to Mr. Goddard the nature of the document and his compliance options, a jury would be entitled to find that the defendants’ subsequent search and seizure violated clearly established constitutional rights of which a reasonable person would have known.

District Court opinion at 6.³ Second, discovery has been completed in the present case and thus no substantial factual development remains. Certainly, factual disputes remain, but these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs’ facts.

Because resolution of this appeal turns on an issue of law and no substantial factual development remains, I would hold that this Court has jurisdiction to address the merits of this appeal. After all, the qualified immunity defense affords defendants a right not to stand trial and “[tjhere are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred.” Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651, 660 (1977). Accordingly, I would address the “purely legal [issue of] whether the facts alleged ... by the plaintiff ... support a claim of violation of clearly established law.” Mitchell, 472 U.S. at 528 n. 9, 105 S.Ct. at 2816 n. 9, 86 L.Ed.2d at 426 n. 9.

1 . Appellate jurisdiction pursuant to the Cohen doctrine requires that the district court’s decision (1) be effectively unreviewable on appeal from a final judgment, (2) conclusively determine the disputed question, and (3) involve a claim of right separable from, and collateral to, rights asserted in the action. See Mitchell, 472 U.S. at 524-30, 105 S.Ct. at 2815-18, 86 L.Ed.2d at 423-28.

2 . See Rich v. Dollar, 841 F.2d 1558, 1561 & n. 1 (11th Cir.1988) (distinguishing Riley because district court determination turns on issue of law).

3 . Although the majority fails to address the issue, I believe it necessary to point out that the district court erred when it alternatively held that questions concerning the defendants’ subjective beliefs precluded summary judgment. See District Court opinion at 6-7. In Barker v. Norman, 651 F.2d 1107, 1126-27 (5th Cir. Unit A June 1981), this Court’s predecessor recognized that a plaintiff could survive a defendant’s summary judgment motion based on qualified immunity if the plaintiff demonstrated, for summary judgment purposes, a lack of objective or subjective good faith. The subjective component was met if the plaintiff articulated some "objective circumstances that could serve as a rational basis from which a factfinder could infer that the defendant acted out of malice rather than duty.” Id. at 1127.

The district court erred in its reliance on the "subjective component" part of the Barker opinion. In the post-Barker case of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court, out of concern that too many frivolous claims were surviving defendants’ summary judgment motions, eliminated the subjective component relied on by the district court in the present case and reformulated a purely objective test. See, e.g., Flinn v. Gordon, 775 F.2d 1551, 1553 (11th Cir.1985) (“In Harlow the Supreme Court established a purely objective test for qualified immunity....’’), cert. denied, 476 U.S. 1116, 106 S.Ct. 1972, 90 L.Ed.2d 656 (1986); Barnett v. Housing Authority, 707 F.2d 1571, 1581-82 (11th Cir.1983). See generally Anderson v. Creighton, — U.S. -, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (inquiry is objective).