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.

  • Douglas G. Kunkle

    I whole heatedly agree with your analyses. Its gotten so bad that a solo practitioner needs to be fearful to even file a lawsuit for fear of retaliation in the form of a costs or sanctions award. I have been sanctioned once for a filing in a career spanning over twenty years. That was by a U.S. District judge sitting in Philadelphia who I later determined had a number ties to the defendant and the defendant’s industry as indicated by the Judge’s financial disclosure sheets published on the Judicial Watch website.

    The case involved a “disguised federal action” filed in state court under the federal jurisdictional limits for removal at first instance. I counter claimed using a federal defense pursuant to a statute. As usual on the day of trial the state court trial judge choose to dismiss my federal – counterclaim defense. The case proceeded to trial and of course we lost.

    Pursuant to 28 U.S.C Sec 1446(b)(3) I filed for removal to the District Court. 28 U.S.C Sec 1446(b)(3) provides

    Except as provided in subsection (c),
    if the case stated by the initial pleading is not removable, a notice of
    removal may be filed within thirty days after receipt by the defendant,
    through service or otherwise, of a copy of an amended pleading, motion,
    order or other paper from which it may first be ascertained that the
    case is one which is or has become removable.

    The Plaintiff failed to object to the removal within the statutorily prescribed period the judge excused this and then misrepresented the facts of the case stating that the counterclaim had been heard by the jury when it had been dismissed by the trial judge and then in the most circuitous argument remanded the case back to state court and attempted to sanction me based upon Holmes Group Inc v. Vornado, 535 U.S. 826, 831 at which point we simply through in the towel and agreed with the Plaintiff not to further proceed with any appeal. In my opinion this was really the continuation of Separate but Equal but rather than race based is financially based on Too Big to Fail.

  • Lily

    Et tu, Ginsburg? I love her, but these cases should’ve gone to a jury. I miss Stevens.

  • Chen Kasher

    I love this blog, but the two cases are different. One involves a high-speed chase of 100 mph and the other involves an elderly woman and a man telling the officer to stop touching her. Tolan is a great case that any civil rights practitioner would love to litigate; Plumhoff is a case with more wiggle room.

    That said, the inference that SCOTUS drew in Plumhoff was way off the mark, and invaded the jury’s role. They inferred that the decedent would have continued driving at a high speed after he “temporarily stopped”. This is the opposite of what MSJ jurisprudence repeatedly tells judges to do, which is to make inferences in favor of the non-moving party. Here, the correct inference is that the chase was over, the decedent was about to surrender, and there was no need for the excessive force of firing bullets.

    Finally, I wish that SCOTUS would stop deciding MSJ and MTD related cases. These are by far some of the most important tests in any litigation, and adding more and more cases to their jurisprudence just confuses everybody.

    • I agree completely: the cases are very different. The nephew shot in Tolan is far more sympathetic than the fleeing suspect shot in Plumhoff — assuming that suspect is sympathetic at all. I don’t know all the facts, but, if I had to decide based on what I do know, if I was on a jury, I’d probably side with the plaintiff in Tolan but not in Plumhoff.

      But that’s my point: it’s not the Supreme Court’s job to decide, on a case-by-case basis, who to compensate and who to blame. Both cases raised more than enough factual issues that they should have gone to a jury. Like you said, any civil rights practitioner would have jumped on the Tolan case, whereas Plumhoff is charitably described as a challenge. I’d call it borderline Quixotic.

      The Supreme Court bends over backwards to recognize jury’s irreproachable fact-finding powers in sentencing their fellow citizens to die, but can’t trust them to be stewards of their own tax dollars? Can’t trust them to decide when the cops were too aggressive? If there is any way in which the case could be decided for the plaintiff, then it needs to go to a trial. That’s the whole point of the Seventh Amendment.

      • Chen Kasher

        I agree. I am especially nettled by the lengthy factual interpretation of the case on pages 10-11, with passages such as:

        “Just before the shots were fired, when the front bumper of his car was flush with that of one of the police cruisers, Rickard was obviously pushing down on the accelerator because the car’s wheels were spinning, and then Rickard threw the car into reverse ‘in an attempt to escape.'”

        This sort of jury-esque factual interpretation is not the role of SCOTUS. The passage reads like what I’d expect to hear from a polled juror.

        Some people may argue that not every case should get to a jury, and that the facts here were too one-sided, but the fact that a firm was willing to invest so much in Plumhoff suggests that there is more to his story than meets the eye. Plaintiff’s lawyers invest in cases, and the seasoned lawyers have enough experience to avoid investing in bad ones.

        Let’s hope that the fact-specific nature of Plumhoff means that it will be too narrow to foreclose future “traffic chase” cases from getting to juries.

  • While our legal system should always be organic, the prospect of the Supreme Court making decisions it wasn’t designed to make is unsettling.

  • Michael Carin

    Might a certain Federal Appellate judge in Chicago read your blog?

    I had to read the opinion more than once to make certain I didn’t imagine the word selection…..

    • I flatter myself that the entire appellate judiciary reads my blog, and is better for it.

      In all seriousness, I’m glad to see judges properly recognizing their role. If a relevant fact is dispute, it’s disputed, and must be decided by a jury. This isn’t some crazy new-fangled idea, it’s the essence of the Seventh Amendment.