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Mixed Signals on Summary Judgment
Howard M. Wasserman
Since the Supreme Court’s 1986 trilogy,[1] summary judgment has been recognized as the great cause of the decline of civil trials. Even if precise statistics were lacking about rates of summary judgment,[2] there is a general gestalt sense that summary judgment accounted for a rising portion of motions and case dispositions,[3] particularly in certain substantive areas and in a way that advantaged defendants and disadvantaged plaintiffs.[4] Perhaps because the contours and standards of summary judgment’s broad reach were so established so long ago, however, the Roberts Court has had little to add. Combined with amendments to the summary judgment rules in 2010 that largely brought the rule’s text in line with Supreme Court pronouncements, case law, and common practice,[5] the area seems settled.
By contrast, the Roberts Court has spent far more time on pleading standards and on increasing the role of Rule 12(b)(6) dismissals.[6]And the vast array of scholarship on Twombly and Iqbal[7] largely suggests that the Court has been successful in that endeavor. But a likely concomitant effect of the increased role of 12(b)(6) is a decreased role for summary judgment. The greater difficulty for plaintiffs in pleading a “plausible” non-conclusory claim that can survive a motion to dismiss, combined with immediate review of the denial of a motion to dismissraising qualified immunity, mean fewer cases need summary judgment as a basis for pre-trial disposition. Indeed, the express goal of the revised pleading standards in Iqbal was to keep cases more cases out of discovery,[8] which is the necessarily prior process to summary judgment.
Prior to the October 2013 Term, the Roberts Court had decided only one case focused specifically on the standards for summary judgment--Scott v. Harris, an 8-1 decision from 2007, in which the Court affirmed summary judgment for the defendant in a Fourth Amendment excessive-force case.[9]Scott is most notable for establishing a unique role for video on summary judgment. The majority insisted that video of a high-speed car chase (taken from the squad car’s dashboard camera) “speaks for itself,” carrying one obvious and clear meaning that a court on summary judgment could determine for itself. Despite Justice Stevens’ insistence in dissent that the Court was placing itself in the role of the jurors whose job it is to draw inferences from the evidence, the Court treated the video as capable of only one rational understanding, meaning that there was only one rational conclusion a factfinder could reach. More problematically, the Court allowed judges to disregard testimony and any other evidence “blatantly contradicted by the record,” meaning contradicted by the video and its singular message. Because video is so conclusive and certain, non-video evidence purporting to contradict it does not create factual disputes. Instead, such contradictory evidence merely creates a “metaphysical doubt” as to the facts, long recognized as insufficient to avoid summary judgment.[10]
The recent Supreme Court Term thus was notable for the unexpected return of summary judgment to the docket. The Court resolved, in some form, three cases squarely address questions about the proper approach to summary judgment, all in Fourth Amendment excessive force cases with qualified immunity defenses. The results were mixed and somewhat procedurally confounded. While one of the cases arguably produced the first summary judgment victory for a civil rights plaintiff before the Court in quite some time, another largely reaffirmed Scott’s misuse of video evidence.
As we continue to grapple with the vanishing trial and the “double-whammy” of heightened pleading and defendant-friendly summary judgment,[11] it is worth examining all three cases, and their contexts, in search of a better sense of the future of civil litigation.
I. Scott Survives
The Court issued one fully briefed and argued plenary statement on summary judgment in Plumhoff v. Rickard,[12] a case strikingly similar to Scott. Like Scott, it was an excessive-force claim arising from a high-speed chase. The chasebegan with a routine traffic stop and went on for some time on the interstate and on city streets, with six police cruisers in pursuit.The driver ultimately led police into a parking lot, where officers and squad cars surrounded him, pausing, and perhaps ending, the chase. Police again used deadly force to conclude the chase--here, by firing fifteen shots into the car and causing the driver to crash the car into a building.The shots were fired when the driver did not get out of the car in the parking lotand continued some maneuvering, ultimately driving out of the lot and back onto the street before crashing the car into a building. As in Scott, the entire thing was captured on video from the dashcam of a pursuing cruiser. Both the driver and passenger, his daughter, died from a combination of gunshot wounds and injuries from the crash.[13]
The Court held that summary judgment for the defendant officer was proper in fairly short order (and without dissent), concluding that the officers did not violate the plaintiff’s rights and that, in any event, the officers were entitled to qualified immunity because any right was not clearly established.[14] From the standpoint of plaintiffs’ (especially civil rights plaintiffs’) efforts to reign in summary judgment, however,Plumhoff could have been worse.
The bad of Plumhoff is, as in Scott, over-reliance on video.The Court described at length what “happened” in the chase based on its viewing of the video--it characterized the driving as “outrageously reckless,” spoke of cars on the road “forc[ed] to alter course” to avoid the cars in the pursuit, saw the driver in the parking lot “obviously pushing down on the accelerator because the car’s wheels were spinning” with the bumper flush against a police cruiser, and described him making “’an attempt to escape.’” From this, the Court insisted that the “record conclusively disproves respondent’s claim that the chase in the present case was already over when [the officers] began shooting.”[15]
The Court consciously grounded its analysis in Scott. While it did not insist that video can “speak for itself” and did not include a URL link to the video,[16] it insisted that there was no reason to reach a different result, given the similar presence of a dashcam video.[17]As in Scott, the Court drew conclusions and inferences about what the video “showed.” They understood the video as necessarily and unavoidably one-sided, capable of only one meaning and telling only one story--the chase had not ended and was still ongoing even in the parking lot because the driver was stillmaneuvering and trying, or at least looking, to escape capture. Police thus did not act unreasonably in using deadly force at that point because the chase, and the threat to public safety,was ongoing.[18]
The problems with this approach to video evidence on summary judgment have been described at length elsewhere. One is that video does not, as Scott insisted, “speak for itself.” What video actually says depends on a number of different considerations--who is watching, who and what is depicted, who created the images, and details of the images themselves, such as length, clarity, distance, and angle; all affect the inferences that may be drawn from the video, creating many different possible conclusions. But that uncertainty is why summary judgment is inappropriate; it supports allowing the factfinder to view the video and draw its own inferences.[19] Moreover, as Dan Kahan and his co-authors famously argued, what a viewer “sees”--and the inferences and conclusions one draws--from video are affected by cultural, demographic, social, and political characteristics. It thus becomes more essential that the broader range of community voices that comprise a jury be given an opportunity to review and infer from the video.[20] Video speaks “only against the background of pre-existing understandings of social reality that invest[ed] those facts with meaning.”[21]
Unfortunately, Plumhoff shows that the Court has not taken those lessons to heart. Nor have lower courts, which routinely grant summary judgment for defendants in video cases.[22]Plumhoffis problematic in validating and sanctioning what courts have been doing, reaffirming this problematic approach to video evidence and to summary judgment.
So why was Plumhoff not as bad as it might have been? Unlike Scott, the Court did not ignore testimony and other non-video record evidence in favor of the video. Since both the driver and passenger were killed, neither could offer testimony about the events that the justices could then compare with their view of the video and ignore, as had occurred in Scott. The only evidence was the video and the officers’ testimony (which was consistent with the video), so the Court did not have the opportunity to favor some evidence over other evidence. While the power of a court to disregard evidence that is “blatantly contradicted by the record” was a repeated theme during oral argument,[23] it never came up in the opinion itself. The conflict here involved competing arguments about what one piece of evidence--the video--showed and the reasonable inferences that could be drawn as to whether the chase already had ended when police began shooting, as opposed to other evidence that conflicted with what the justices saw in the video. And while the Court’s video absolutism is, normatively, not the best approach to summary judgment, it at least is preferable to a summary judgment court entirely disregarding record evidence and weighing and preferring some evidence over other evidence.
II. Summary Judgment and Procedural Oddities
A. Tolan and Thomas
In light of Scott and the general trend on summary judgment (and pre-trial resolution generally), it is hard to know what to make of two other cases from late in the term.
On May 5, the Court issued an order in Tolan v. Cooper, a pending certiorari petition from the Fifth Circuit that had been relisted for conference nine times.[24]In a single order, the Court granting cert, vacated the Fifth Circuit, and remanded; the Court also included a per curiam opinion and the remand was specifically for further proceedings consistent with the Court’s opinion.[25]
Tolan arose from a police stop gone bad and what can charitably be described as a combination of overzealous police work, angry and offended homeowners, and negligent typing. A police officer saw a car pull in front of a house and ran the license; but he entered the wrong plate number (he mistyped one digit), causing the computer to report a stolen vehicle of that make and model. He drew his weapon and ordered both Tolan (the driver) and his companion to lie on the ground on the front porch of the house, accusing them of having stolen the car. The house belonged to Tolan’s parents; they came outside and attempted to explain that they owned both the house and the car and that one of the men was their son. A second officer, Sergeant Jeffrey Cotton, arrived at the scene; the first officer explained that he had seen the two men exit a stolen car, while Tolan’s parents reiterated that there was no theft and they owned the property at issue. Cotton then ordered Tolan’s mother to stand by the garage door and physically moved her in that direction, although the amount of force is disputed. Seeing that, Tolan rose either to his knees or his feet (another disputed fact) and told the officer to “’[G]et your fucking hands off my mom’” (his words are undisputed). At that point, Cotton pulled his weapon and shot Tolan three times in the chest. Tolan survived, although he suffered injuries that interrupted a promising baseball career.[26]
Sergeant Cotton was acquitted on state charges of aggravated assault by a public servant.[27] In a subsequent § 1983 action, the Fifth Circuit had affirmed the grant of summary judgment on Tolan’s Fourth Amendment claim, concluding that even if Cotton violated the Fourth Amendment in using deadly force, he was entitled to qualified immunity because it was not clearly established that an officer violates the Fourth Amendment in using deadly force in the circumstances at hand.
But the Supreme Court insisted that this was not a proper conclusion. When deciding whether a right is clearly established for the second prong of the qualified immunity analysis, a court must define the right “on the basis of the ‘specific context of the case.’”[28] It is not enough, for example, that a right against unreasonable seizures is clearly established; the question is whether it is clearly established that the right is violated by the use of particular force in particular circumstances in light of particular facts.[29] In doing so, however, courts “must take care not to define a case’s ‘context’ in a manner that imports genuinely disputed factual propositions.”[30]
The contextin this case, according to the Fifth Circuit, was that 1) the area in which the encounter took place was “dimly-lit,”2) Tolan’s mother refused repeated orders to remain quiet and clam, 3) Tolan was shouting and being verbally threatening in telling Cotton to get his “fucking hands” off Tolan’s mother, and 4) Tolan had risen to his feet and was moving towards Cotton.[31]But, the Supreme Court stated,the Fifth Circuit got there by weighing evidence and failing to credit competing evidence in defining that factual context.
The Courtspecifically identified record evidence contradicting all four of those conclusions. Tolan and his parents testified that that the gas porch lamp was more than decorative and did give off light and that there were flood lights and motion-activated lights in front of the house. Tolan’s mother testified that she was insistent, but that she was neither agitated nor aggravated in talking to Cotton. Tolan testified that he was not screaming. And although he did use an expletive, a reasonable juror could infer that those words reflected a plea rather than a threat, especially in light of Tolan’s further testimony that Cotton used significant force in moving the woman towards the garage. Finally, Tolan testified that he was on his knees, not his feet, and “wasn’t going anywhere.”[32]This contradictory testimony meant there were factual disputes about what happened, making itimpossible on summary judgment to identify this as the specific factual context in determining whether the right was clearly established for qualified immunity purposes.
The Fifth Circuit therefore erred in not properly crediting the plaintiffs’ contrary evidence. But reasoning that there might be other facts suggesting the reasonableness of the defendant’s conduct, the Court remanded to the Fifth Circuit to credit this evidence and draw inferences in the plaintiffs’ favor, whether the officers violated clearly established rights.[33]
Two weeks later, on May 19, the Court explicitlyissued a GVR (Grant, Vacate, and Remand)order in Thomas v. Nugent, another Fifth Circuit decision (this one per curiam), for reconsideration in light of Tolan.[34]Thomasalso was a § 1983 action seeking damages for excessive force under the Fourth Amendment, with the defendant officer asserting qualified immunity. This case arose from the death of an arrestee who was TASEd eight times by an officer attempting to bring him into custody on an outstanding warrant; the man apparently died from complications of sickle cell anemia.[35]
As in Tolan, the Fifth Circuit had held that the officer was entitled to summary judgment on qualified immunity because the right at issue was not clearly established. And the court again defined the specific specific context of the right to distinguish prior precedent that might establish the right.[36]
It is not clear from either the Fifth Circuit opinion or the GVR order what aspects of the specific context were potentially based on genuinely disputed facts. The most likely problems involved the court’s conclusion that the decedent here “attempted to evade arrest, was subdued only through the threat of deadly force, and did not comply with the officers’ repeated requests to cooperate in effectuating arrest.”[37]So defined, that contextmeant the case did not involvean “obvious” violation not requiring a body of case law to clearly establish the right.[38]But the facts as recited earlier in the opinion at least potentially suggest not a threatening person resisting arrest, but someone suffering from significant physical and mental health problems. In fact, in denying summary judgment for the defendant on the excessive force claim, the district court had emphasized evidence that the decedent was crying out for help and that it was uncertain what he was doing and whether he truly posed a threat to the officers.[39]