Thursday, May 8, 2014

Guest Post: Brunet and Parry on Tolan v. Cotton

Ed Brunet and John Parry (Lewis & Clark) present the following guest post:

The growing list of summary judgment skeptics should find much to  like in Monday’s Tolan v. Cotton decision.  In a per curiam opinion, the Supreme Court reversed a Fifth Circuit decision that had affirmed a grant of summary judgment on grounds of qualified immunity in a section 1983 case.  Although the decision of the Supreme Court turns largely on substantive civil rights law, Tolan is surprisingly instructive regarding summary judgment mechanics.  The Supreme Court emphasized that the lower courts had not weighed inferences in favor of the nonmovant regarding the substantive element of whether the alleged excessive force used by the defendant police officer violated  “clearly established rights,” and it asserted that the “judge’s function at summary judgment  is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”

Some of the basic facts are undisputed.  This case involved a police officer’s 2 a.m. stop of a car that had “turned quickly” onto a residential street.  The decision to stop followed the officer’s keying in the wrong license number into his computer and incorrectly thinking that the car was stolen.  The arresting officer drew his pistol and ordered the two men in the car to the ground. When the parents of plaintiff Tolan emerged from the front door of the house where the car had parked, the officer stated that he believed that the two men had stolen the car and the excited parents pointed out that they owned the vehicle and the house.  The mother’s continued protestations caused officer Cotton, a new arrival on the scene who also had his gun drawn, to order her to stand against the garage door.

The  evidence was clearly conflicting regarding what happened to Tolan’s mother.  Tolan presented evidence that his mother was grabbed by the arm by officer Cotton and slammed to the ground with such force that bruising, confirmed by photos, occurred. Cotton denied slamming her into the garage and contended that he was escorting her, she “flipped her arm up and told him to get his hands off her.”  This scene ended when Tolan stated, “Get your fucking hands off my mom,” to which Cotton responded by firing three shots at Tolan, causing liver and lung damage.  A dispute of facts exists as to whether Cotton had pushed Tolan’s mother against the garage door, and whether Tolan was standing or had risen to his knees when shot. There was also a dispute about the quality of lighting at the front of the house.

The lower court opinion resolved the factual issues against Tolan, stating “his shouting and abruptly attempting to approach Sergeant Cotton inflamed an already tense situation; in the light of his actions at the scene, a genuine dispute of material fact does not exist regarding whether Sergeant Cotton acted objectively unreasonably.” The Supreme Court, in turn, chastised the Fifth Circuit for “failing to credit evidence that contradicted some of its key factual conclusions” and for “a clear misapprehension of summary judgment standards in light of our precedents.”

It is tempting to assess this case as a major summary judgment decision.  After all, this is the first summary judgment victory in the Supreme Court for a civil rights plaintiff in some time.  The rhetoric used by the Court is a time-worn cliché, namely that “at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.”  This is hardly new law. Its use in a per curiam opinion summary reversal arguably signals a major change in attitude. But, it may be that all the Supreme Court is doing here is correcting a grievous error.  It seems almost impossible not to find disputed issues of fact on this record, as Judge Dennis observed in his dissent from rehearing en banc.  If the Court had let the lower court decision stand, the error would win the day.  Yet, if that had been all the Court wanted to accomplish, it could have simply vacated and remanded to the lower courts with instructions to weigh inferences in favor of the nonmovant, without detailing the facts and the Fifth Circuit’s errors.

At the very least, the per curiam decision should embolden courts to identify disputed facts.  Further, citing the landmark 1987 Anderson v. Creighton opinion – a case which typically is invoked against plaintiffs, not against defendants –  Tolan reminds lower courts that the clearly established right at issue needs to be examined in “the ‘specific context of the case’” in order to avoid “import[ing] genuinely disputed factual propositions.”

Justice Alito concurred joined by Justice Scalia.  He noted the unusual posture of  the case in which the Court both granted a petition for certiorari and vacated the Fifth Circuit’s judgment.  (Will Baude also comments on this aspect of the concurrence here.)  He stresses that this was a typical summary judgment dispute over “whether the evidence in the summary judgment record is just enough or not quite enough to support a grant of summary judgment.”  Alito goes on to conclude that the Court of Appeals “invoked the correct standard here.” The use of the word “standard” appears questionable.  The directed verdict standard is the only standard used in summary judgment, replacing the old “doubt” standard of many circuits. More later!

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