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Wednesday, May 20, 2015

A Few Surprises in San Francisco v. Sheehan

This week, the Court decided San Francisco v. Sheehan, which involved a confrontation between police and a mentally ill woman whom they repeatedly shot. The assumed facts are a bit harrowing—the plaintiff had chased two officers out of her room by threatening to kill them with a kitchen knife—but the case ended up deciding somewhat less than expected. Instead of answering a major issue under the Americans with Disabilities Act, the Court dismissed that question presented. And instead of opining on the Fourth Amendment, the Court found that the officers were protected by qualified immunity. Below are a few comments on the case’s unexpected aspects.

1. Circuit Precedent

Sheehan continues the Court’s recent pattern of discussing circuit precedent in qualified-immunity cases while prominently reserving whether that precedent can ever result in a denial of qualified immunity. As I have previously discussed, this is an important pattern that raises deep questions about what qualified immunity is for, as well as about how it compares with other uses of clearly established law, such as in habeas cases and good-faith suppression cases.

Sheehan is perhaps distinctive on this score because of the depth of its engagement with circuit precedent. The Court goes so far as to explain that a particular circuit precedent can’t govern because it “has long [been read] narrowly.” In a footnote, the Court emphasized that its frequent "citation" to lower-court precedents “should not be read to suggest our agreement (or, for that matter, disagreement) with them.” As discussed below, however, the Court did end up absorbing some conclusions from the Ninth Circuit cases that it heeded so closely.

2. Police Training and City Policy

Significantly, Sheehan makes clear that officers can be entitled to qualified immunity even if an expert shows that they violated their training and policies. 

The plaintiff had introduced an expert who testified that San Francisco trains its officers to deal with the mentally ill in a non-confrontational way that minimizes the dangers of violence. The expert further testified that San Francisco has a policy of using hostage negotiators when dealing with self-barricaded suspects. According to the expert, the defendants had neither adhered to their training nor obeyed the applicable city policy when dealing with the plaintiff.

The Court rejected these points: “Even if an officer acts contrary to her training ... that does not itself negate qualified immunity where it would otherwise be warranted.” The Court then quoted, not one of its own decisions, but rather a Ninth Circuit precedent for the proposition that “a plaintiff cannot ‘avoi[d] summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.’” In this passage, the Court isn't simply reporting on Ninth Circuit law, but rather seems to be endorsing the Ninth Circuit's conclusion.  Indeed, the section begins with an apparently categorical statement: "Nor does it matter for purposes of qualified immunity that [the plaintiff's expert] testified that the officers did not follow their training."

3. Inducing Cert and Certworthiness

The most surprising feature of the case has to do with the Court’s decision to DIG, or dismiss as improvidently granted, the first question presented, or QP.

Understanding this issue requires a bit more background. The plaintiff had sued both the city and the officers, but city attorneys represented all the defendants. In its cert petition, the city attorneys included two QP’s: one on the Americans with Disabilities Act (ADA), and another on the Fourth Amendment. The first issue posed a circuit split, while the second raised a more run-of-the-mill issue about whether the lower court had properly applied the qualified immunity and Fourth Amendment standards to the facts at hand. After cert was granted, however, the city didn’t argue the first QP in the full-throated way that it had in the courts below and in its cert petition. Instead, the city advanced only a relatively fact-specific position on that point.

The Court found this problematic, since neither the parties nor the United States as amicus had defended the strong position represented in the circuit split. (Notably, there were other amici who went unmentioned in the Court’s opinion—yet another example of the Solicitor General’s distinctive status, particularly in cases involving federal statutes.) Because the ADA issue “would benefit from briefing and an adversary presentation,” the Court did “not think that it would be prudent” to resolve it.

Justice Scalia dissented, joined by Justice Kagan. The gist of the dissent is that San Francisco had engaged in “bait-and-switch tactics” by offering up an attractive-looking main QP, linking it to an “attendant question” that was “not independently certworthy,” and then arguing only the non-certworthy question before the Court. The result was that the Court had ended up answering only a question that was too factbound to be worth the Court’s time in the first place. Scalia and Kagan accordingly voted to DIG the entire case “to avoid being snookered, and to deter future snookering.”

The majority responded to the dissent in two steps. First, the Court pointed out that the ADA issue concerned the city, whereas the other issue concerned the officers. The Court was reluctant to DIG a question that the officers had "a personal interest" in correcting. In explaining this point, the Court confirmed and expanded on its indifference to what Joanna Schwartz has shown to be the almost universal practice of indemnifying officers: "Whatever contractual obligations San Francisco may (or may not) have to represent and indemnify the officers are not our concern." The basic problem with this line of argument is that the city and officers were represented by the same city attorneys and filed a joint cert petition, so if there was misconduct it appears to have been joint. 

That led to the Court’s more important point: the Court argued that, in granting cert, it had correctly "determined that both questions independently merited review.” The reason for this, the Court asserted, is that qualified immunity is of “importance ... to society as a whole.” While the Court doesn’t spell out this point, it quotes Harlow v. Fitzgerald and so presumably has in mind the benefits of letting officers press their authority without fear of unexpected personal liability. The Court also collected recent cases—including full-dress merits decisions as well as the summary reversal in Carroll v. Carman just last November—to show that it “often corrects lower courts when they wrongly subject individual officers to liability.” So the Court often, even normally, views erroneous denials of qualified immunity as independently certworthy. At a minimum, it’s worthwhile to dispose of an already-granted case on qualified-immunity grounds. Scalia, by contrast, insisted in dissent that the Court’s qualified-immunity ruling answered nothing but a “now-nakedly uncertworthy question.”

Scalia’s dissent may be a one-off stemming from his frustration at having been played by San Francisco, but the apparent division between the majority and dissent on the certworthiness of qualified-immunity cases could have real consequences. As Will Baude has documented in his Shadow Docket essay, Alito and Scalia have previously argued for aggressive use of summary reversal in habeas cases to enforce AEDPA’s “clearly established law” requirement, but those justices have expressed misgivings (in Tolan v. Cotton) about the Court’s decision to summarily reverse a finding of qualified immunity. It seems that Alito and Scalia are especially predisposed to merits review in the habeas context in part because they believe there is a special pattern of lower-court disobedience in that area.

Sheehan suggests that Justice Alito and, perhaps, a majority of his colleagues now believe that there is an analogous reason for granting certiorari in qualified-immunity cases: Even without a pattern of lower-court disobedience, the societal benefits of qualified immunity may create certworthiness when qualified immunity is erroneously denied. At least in Sheehan, however, Scalia has dissented from that view. This suggests a potentially stark divide when it comes to the future of the qualified-immunity docket. The majority might be prepared to maintain or even expand its review of qualified-immunity cases, while the dissenters may resist correcting future qualified-immunity errors. 

4. “Snookering”

I would be remiss to let Scalia’s rhetoric in Sheehan pass without comment. Clearly, Scalia had good cause to call San Francisco’s alleged cert-inducement a bait-and-switch. But was Scalia also right to say that the city had “snookered” the Court?

Jim Pfander has helpfully highlighted this issue by pointing out that the word "snookered" is derived from the game snooker and means unable to strike the next object ball by virtue of another ball's having been left in the way by either the shooter or the shooter's opponent.

I’m prepared to cast my vote: I approve of Scalia’s usage. By not properly arguing the first QP, the city effectively blocked the Court’s shot at answering it.

Posted by Richard M. Re on May 20, 2015 at 12:49 PM | Permalink


My disagreement with Alito's position isn't over whether or not QI cases are important enough to be cert worthy independent of a circuit split, but rather that he divides the QI case universe on the basis of who lost below:

"Because of the importance of qualified immunity “to society as a whole,” Harlow v. Fitzgerald, 457 U. S. 800, 814 (1982), the Court often corrects lower courts when they wrongly subject individual officers to liability."

Surely getting QI right requires marking out points of both sides of the line.

Posted by: Brad | May 22, 2015 8:56:27 AM

Brad's concern is appropriate. When taking cases, a division of the circuits or some blatant error (which seems to be their reason for taking a few per curiams these days) being the reason, both mistaken allowance of unconstitutional conduct and mistaken findings of wrongdoing should be a concern. Conservative justices will be more likely to focus on one here.

Posted by: Joe | May 21, 2015 7:08:40 PM

Betsy: Thanks for your note. To clarify, I think that San Francisco's decision not to argue the split, triggering the DIG, was the surprise. Indeed the justices DIG'd QP1 because of their surprise at how the case had evolved. So I agree with you that, once the surprising briefing had happened, and certainly after the argument, a DIG on QP1 could fairly be expected.

Posted by: Richard | May 21, 2015 1:09:34 PM

The DIG doesn't seem all that surprising to me. Sheehan argued it in her brief. The Justices raised it within seconds of the beginning of the argument. San Francisco indeed changed course in the merits briefing and sought review of a totally different question than the one it sought cert on. Nor is it surprising the Court took on qualified immunity rather than the merits of the Fourth Amendment issue, as has typically been the way these things have gone post Pearson v. Callahan. An interesting case for sure, but surprising doesn't seem quite right to me.

Posted by: Betsy | May 21, 2015 12:19:33 PM


The line the Supreme Court looks for is the difference between (1) a fact-specific misapplication of a test and (2) a division in the circuits about what the legal rule is. The former is not considered cert-worthy, while the latter is. My thought has been that what makes a wrongful qualified immunity decision more certworthy is that what looks like (1) on the surface can act more like (2) in practice. That's the thought, at least.

Posted by: Orin Kerr | May 21, 2015 12:05:55 PM

In other words, Orin, they are not above the law?

To me (IANAL), it's another step in the trend towards 'cutting off the head and walking away' (an old Japanese term about the right of a samurai to kill peasants at will).

As a country, we have been very violent and very savage, but there were a few decades where it seemed like we were trying to tone that down.

Posted by: Barry | May 21, 2015 11:56:48 AM

Isn't the mistaken conclusion that some unconstitutional conduct was constitutional, and therefore the police should feel free to go out and do it just as serious a concern, if not more so?

Posted by: brad | May 21, 2015 10:45:13 AM

I've generally thought that the reason QI misapplications against an officer can lead to grants is that they effectively change the underlying law. If a lower court misapplies QI against an officer, it tells the police that they have to be really careful going forward. To avoid liability, officers have to be overly cautious and not get close to the line of legality. If you assume that the officers are influenced by the threat of a lawsuit, the QI misapplication effectively moves the perceived line of legality by changing what the police will likely do or not do. That's the thinking, at least.

Posted by: Orin Kerr | May 21, 2015 4:12:03 AM

You had me at "snooker."

Posted by: Joe | May 20, 2015 5:39:22 PM

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