Civil procedure in the federal courts has changed dramatically over the past few years, primarily through the Supreme Court’s manipulation of doctrine to encourage lower courts to dismiss tort, class action, antitrust, and civil rights cases. As I wrote a year ago in a guest post at TortsProf:


[A]s the courts become increasingly obsessed with deciding complicated cases by reference to procedural doctrines that ask the court to leave its expertise in the law and feign expertise in complex factual situations, courts run an increasing risk of becoming wholly unmoored from the facts of the disputes they are trying to decide. If a primary concern about tort litigation is that it is unpredictable — as is often stated by tort reformers — then everyone should be concerned when judges decide for themselves the dispositive facts of cases.


In early May of this year, Professor Suja Thomas had published an article in Judicature explaining how the summary judgment standard had “become a proxy for a judge’s own view of the evidence.” In one of her examples, she compared the majority and dissent opinions in Scott v. Harris, 127 S. Ct. 1769 (2007), a civil rights case involving a police chase, and just how far the majority had to leap to enter summary judgment for the defendant, preventing the plaintiff from ever presenting his case to a jury.


Then, on May 5, 2014, came Tolan v. Cotton, a civil rights case with depressingly common facts: with slim-to-none probable cause, a police officer instigated a confrontation with homeowners and ended up shooting a family member, permanently injuring him. There, all nine members of the Supreme Court agreed that the underlying court had dismissed the case based on their own view of the evidence, and so reversed the entry of summary judgment: 


Considered together, these facts lead to the inescapable conclusion that the court below credited the evidence of the party seeking summary judgment and failed properly to acknowledge key evidence offered by the party opposing that motion. And while “this Court is not equipped to correct every perceived error coming from the lower federal courts,” Boag v. MacDougall 454 U. S. 364, 366 (1982) (O’Connor, J., concurring), we intervene here because the opinion below reflects a clear misapprehension of summary judgment standards in light of our precedents. …

The witnesses on both sides come to this case with their own perceptions, recollections, and even potential biases. It is in part for that reason that genuine disputes are generally resolved by juries in our adversarial system. By weighing the evidence and reaching factual inferences contrary to Tolan’s competent evidence, the court below neglected to adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.

Applying that principle here, the court should have acknowledged and credited Tolan’s evidence with regard to the lighting, his mother’s demeanor, whether he shouted words that were an overt threat, and his positioning during the shooting.


Slip op., pp. 10–11. I was flabbergasted. The case was “the first time in 10 years that the [Supreme Court] has ruled against a police officer in a qualified immunity case.” It was a stunning affirmation of the often-ignored axiom that, in ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986).


But then came Plumhoff v. Rickard less than a month later. Like the Scott case from 2007, Plumhoff involved a police chase, and, to put it simply, the Supreme Court gave the plaintiff no quarter, analyzing the facts in a single paragraph on page 10, concluding “In light of the circumstances we have discussed, it is beyond serious dispute that Rickard’s flight posed a grave public safety risk, and here, as in Scott, the police acted reasonably in using deadly force to end that risk.” They concluded all this from just a paragraph’s worth of fact analysis? As you can see from the plaintiff’s brief, there were ample factual issues in dispute.


In Scott, Justice Scalia wrote for the majority, and Justice Ginsburg echoed in her concurrence, that, much as it would simplify the court’s task “to craft an easy-to-apply legal test in the Fourth Amendment context…, in the end we must still slosh our way through the factbound morass of ‘reasonableness.’” Yet Plumhoff charged right through that “factbound morass,” with Justice Alito writing the opinion, even though, less than a month earlier, he had complained in Tolan that the case shouldn’t have been reviewed at all, because it didn’t raise any important legal issues, but rather only “present[ed] the question whether the evidence in the summary judgment record is just enough or not quite enough to support a grant of summary judgment.”


Frankly, I don’t think there’s a way to reconcile Tolan with Plumhoff on the legal principles involved. Both cases presented multiple factual issues that should have been resolved by a jury, and thus summary judgment should not have been granted in either. The difference for the Supreme Court appears to be results-oriented. If an excessive force case involves a police chase, the plaintiff is out of luck.