CIVIL RIGHTS PLAINTIFFS CAN DEFEAT QUALIFIED
IMMUNITY DEFENSES AND GET FRIVOLOUS APPEAL
SANCTIONS: THEY SHOULD TRY MORE OFTEN!


Sanford Jay Rosen
April 1999
INTRODUCTION
This article is about recent United States Supreme Court and Courts of
Appeal decisions that offer civil rights Plaintiffs new tools in dealing with what
had been a growing problem of interlocutory appeals from district court decisions
refusing early termination of their lawsuits.
Plaintiffs who sue under 42 U.S.C. §1983 for violation of their federal rights
bear extraordinary burdens.1 There is one small ray of hope. If a Section 1983
claim is legally well founded, the federal courts – including the Supreme Court –
have become fed up with defendants who improperly delay proceedings. Certain
kinds of interlocutory appeals from trial court decisions denying immunity from
suit under Section 1983 can be dismissed before briefing. In some of those cases,
substantial frivolous appeal sanctions can be collected. This article is a short
primer on how to set up such dismissals and sanctions.
THE PROBLEM
Substantively, many federal rights appear ever to be shrinking. Chief Justice
Rehnquist and Justices Scalia and Thomas would limit the scope of Section 1983

099\D\articlCivRights pls.

jurisdiction (and the rights protected pursuant to it) almost to the vanishing point.2
Procedurally, the deck is also stacked against plaintiffs.
As pertinent here, the Supreme Court has held that government employees
and officials who are sued in their personal capacities for damages for violating a
person’s civil rights may terminate the lawsuit early on grounds of absolute or
qualified immunity. “Unless the plaintiff’s allegations state a claim of violation of
clearly established law, a defendant pleading qualified immunity is entitled to
dismissal before the commencement of discovery.” 3 Defendant may raise the
qualified (or absolute) immunity defense at almost any time in the lawsuit; and
may do so repeatedly. Immunity may be asserted as an affirmative defense with
the answer, in a motion to dismiss for failure to state a claim on which relief can be
granted, in summary judgment motions, and in motions for directed verdict during
or after trial.
Unfortunately, assertion of an immunity claim provides civil rights
defendants with extraordinary opportunities for trial delay, even when the defense
fails. “The denial of a substantial claim of absolute [or qualified] immunity” is an
order that is subject to interlocutory appeal before final judgment.4 A nonfrivolous interlocutory appeal will stay virtually all trial court proceedings.5 Such
delay usually benefits defendant, not plaintiff.
Issues of qualified immunity often are difficult, as they involve subtle legal
and factual components. To oversimplify a bit, a government employee or official
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enjoys qualified immunity if his or her conduct was objectively “reasonable” as
measured by reference to clearly established law. 6 To defeat a claim of qualified
immunity, civil rights plaintiffs must show that, if proven, the challenged conduct
violated a federal right that was “clearly” established at the time of the conduct,
and that defendants knew or should have known that their acts would violate
plaintiffs’ right.7
Qualified immunity thus has two elements, both of which plaintiff must
satisfy. First, plaintiff must demonstrate that the federal right claimed to have been
violated was clearly established when the defendant acted. This is almost a pure
legal question. Second, plaintiff must establish both that defendant acted in a
manner that injured plaintiff and that, under the circumstances in which defendant
acted, he or she knew or should have known that his or her actions would violate
plaintiff’s federal rights. These are highly factual issues. 8
THE RAY OF HOPE
Fortunately, even the present Supreme Court has figured out that not all
prejudgment denials of the qualified immunity defense should be the subject of an
interlocutory appeal. In 1995, the Supreme Court held that the Courts of Appeals
have jurisdiction over interlocutory appeals from summary judgment orders
denying a defendant qualified immunity, only when the immunity determination
turns on the legal issue whether the plaintiff’s federal right was clearly
established.9 The Courts of Appeals have no interlocutory appellate jurisdiction to
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determine whether genuine issues of material fact exist, as to whether wrongful
conduct took place and usually as to whether that conduct violated a federal right
(assuming the right was clearly established).10 Most likely the Supreme Court was
motivated to protect the already overburdened federal appellate courts from a flood
of fact-intensive appeals.
The Courts of Appeals have responded by dismissing interlocutory appeals
from prejudgment orders denying claims of qualified immunity, where there are
material issues of fact and no questions of law as to the existence of a clearly
established right.11
In 1998 the Sixth Circuit held that: “In the future, a defendant who wishes
to file such an appeal after being denied qualified immunity should be prepared to
concede the best view of the facts to the plaintiff and discuss only the legal issues
raised by the case. Such a defendant will have a solid jurisdictional position if the
defendant claims the plaintiff cannot show a violation of clearly established law
even assuming everything alleged is true. Once a defendant’s argument drifts from
the purely legal into the factual realm and begins contesting what really happened,
our jurisdiction ends and the case should proceed to trial.”12
In 1995, the Fifth Circuit took a large and encouraging additional step. It
held that: “Because there are disputed issues of material fact, concerning the
qualified immunity defense, we lack jurisdiction to consider the interlocutory
appeal. Accordingly, we dismiss. In addition, because counsel for appellant has
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multiplied these proceedings unreasonably and vexatiously, we impose sanctions
against counsel pursuant to 28 U.S.C. § 1927.”13 The court awarded as sanctions
the full amount of fees and costs claimed for work on the appeal by plaintiff’s
counsel, i.e., $20,643.75.14
Recently, Elden Rosenthal (of Portland, Oregon) and I got a similar result in
the Ninth Circuit. A motions panel of the Ninth Circuit granted our early motion
to dismiss as frivolous two defendant police officers’ interlocutory appeals from
denial of summary judgment based on defendants’ claims of qualified immunity. 15
The court also awarded sanctions to be measured by double costs (against both
individual police officers including one who had dismissed his appeal) and
reasonable attorneys’ fees (against the officer who had not dismissed his appeal).
The size of the sanctions was referred to the Ninth Circuit’s Commissioner, who
awarded $41,407.11, using full market rates, including premium out-of-district San
Francisco rates.16
The interlocutory appeal caused no delay in the trial schedule. The appeal
was dismissed within a few months of being filed. No briefs were prepared on the
merits. Our work involved a motion to certify the appeal as frivolous in the district
court, the motion to dismiss the appeal in the Ninth Circuit, which was promptly
made after the appeal was docketed, reply papers, and the fee application and
reply. Full payment, including statutory interest was made promptly.

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The case, Boots and Proctor, involved a malicious prosecution claim.
Plaintiffs had been imprisoned for more than eight years until they were released as
innocent. It settled, just before trial, four months after the sanctions award, for
$2,000,000 (in addition to the sanctions). One suspects, but it is impossible to
know, that plaintiffs’ interim success in securing appellate sanctions played some
part in the favorable resolution of the case.
HOW TO SET UP DISMISSAL AND FRIVOLOUS APPEAL
SANCTIONS
Now we get back to the crux of this article. Every time a civil rights
defendant files an interlocutory appeal, plaintiff’s counsel must consider filing a
motion to dismiss and for sanctions. Well before the motion or even the appeal is
filed, plaintiffs’ counsel should be considering this option and preparing for it.
Think positively, but be realistic. The road map laid out here will not work in most
cases. It will work in some. Be ready and on the lookout for those cases.
Setting up the motion to dismiss, and especially the motion for sanctions,
involves several steps, similar to setting up Rule 11 sanctions. First, you must
adequately have pled the requisite facts that negate the immunity defense. Second,
you must collect and marshal the relevant facts that rebut the defense. Third, you
must make sure that plaintiff’s evidence at least creates material factual disputes as
to whether the wrongful conduct occurred and whether that conduct violates a
clearly established federal right. Fourth, and often hardest, you must prepare to

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demonstrate that the federal right in question was clearly established at the time of
the wrongful conduct. Here you may have to be exhaustive and often very
creative.
The touchstone of the clearly established federal right requirement is fair
warning, namely whether the defendant could reasonably have anticipated that his
or her conduct might give rise to liability.17 Reference to Supreme Court decisions
and those from all the United States Circuit Courts of Appeals is appropriate in
determining whether a right was clearly established at the time of the wrongful
act.18 The very act at issue in the case being litigated need not have been
previously held unlawful.19 Plaintiff does not have to identify a case directly on
point.20 Even closely analogous pre-existing case law is not required to show that
the right is clearly established.21 Plaintiff need only show that the contours of the
federal right were sufficiently clear that a reasonable person would understand that
his or her conduct might violate that right.22
It follows that plaintiff’s lawyer should research all pertinent appellate (and
legislative) jurisprudence, civil and criminal, to determine the earliest date on
which the contours of the federal right became sufficiently clear to provide
reasonable notice. If, initially, you find only recent decisions articulating the
federal right that post-date the wrongful act, read all cases cited by those decisions
on the relevant point and those cited in those earlier decisions, and so on.23

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The date of the first appellate decision recognizing the federal right (or its
contours) is not the most important date in the “clearly established right” exercise.
Review the Supreme Court and Courts of Appeals decisions, and the district court
decisions from which the appeals were taken, to determine the date of the wrongful
acts being reviewed in the appellate decisions. If an appellate court held that the
right (or its contours) was clearly established, especially in a section 1983 context,
it must mean it was clearly established at the time the act occurred, i.e., well before
the date of the appellate decision.24 When you write your brief, reverse the usual
approach. Start with your oldest and strongest authorities, not newest and
strongest.
Let us skip ahead, and assume that plaintiff has defeated defendant’s
summary judgment motion, with the district court holding that there are material
issues of fact as to whether defendant violated plaintiff’s clearly established federal
rights. Now the sanctions set up work begins.
As soon as plaintiff’s counsel has the order denying summary judgment in
hand, he or she should write a careful letter to defendant’s counsel. Inform counsel
that the order is not appealable, because the federal rights involved (or their
contours) were clearly established at the time of the wrongful conduct. Citing the
Supreme Court’s decisions in Johnson and Behrens (see endnote 12), inform
counsel that no interlocutory appeal will lie from the district court’s decision that
there are material issues of fact. Finally, inform counsel of the Sixth Circuit’s rule
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that defendant must concede plaintiff’s version of the facts, and of the Fifth
Circuit’s decision awarding frivolous appeal sanctions (see endnotes 14 and 15).
If defendant files a notice of appeal, send another warning letter, announcing
that you promptly will be filing a motion in the district court to certify the appeal
as frivolous and a motion in the Court of Appeals to dismiss the appeal and for
sanctions. Ask defendant to dismiss the appeal in order to avoid unnecessary work
in the trial and appellate courts for which plaintiff will seek compensation in the
Court of Appeals, as frivolous appeal sanctions. In response to defendant’s
appellate docketing statement, inform the Court of Appeals that defendant’s appeal
is frivolous, and that plaintiff intends promptly to file a motion to dismiss the
appeal as frivolous and for sanctions. (Check the Court of Appeals Rules
concerning the timing of such motions.)
Promptly file a motion in the district court to certify the appeal as frivolous.
You need to do this in any event to avoid having the trial court proceedings
automatically stayed. If the district court certifies the appeal as frivolous, it retains
jurisdiction and the case will proceed toward trial.25
If the district court certifies the appeal as frivolous, plaintiff’s counsel
should write defendant’s counsel one last warning letter. As promptly as possible
thereafter, plaintiff should file a motion in the Court of Appeals, to dismiss the
appeal and for sanctions. (If necessary, you can even file your motion while you

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await the district court’s decision on your Motion to certify that the appeal is
frivolous. But that is risky.)
You may file a motion to dismiss and for sanctions, even if the district court
does not certify the appeal as frivolous. Plaintiff’s likelihood of securing
sanctions, of course, is greatly limited in these circumstances. However, you still
may get the appeal dismissed. The scenario in such a case may involve filing the
motion to dismiss, followed by an order that the motion is referred to the merits
panel. After full briefing of all issues, that panel may then dismiss the appeal
possibly without oral argument.
Any motion to dismiss and for sanctions should lay out the relevant
procedural history, including the warnings sent to defendant’s counsel. Attach the
pertinent correspondence to an Affidavit. Recite the facts with plaintiff’s slant, but
calmly and reasonably objectively. Clearly and fully set out the bases for showing
that the federal rights were clearly established at the time of the wrongful acts. A
specific request should be made for dismissal of the appeal and (if appropriate) for
frivolous appeal sanctions, citing all appropriate statutes and rules and the Fifth
Circuit sanctions decision. Reply to defendant’s opposition papers aggressively.
Plaintiff’s counsel probably should request that the amount of any sanctions
be determined after the appeal is dismissed. (The Circuit’s local rules and practice
should guide plaintiff on this.) Whenever that claim is submitted to the court,
prove it in the fashion you would prove up any appellate fees application, complete
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with contemporaneous time records and sponsoring and billing rates declarations
and other appropriate evidence.
CONCLUSION
The overburdened federal appellate courts are fed up with frivolous
appeals.26 If an interlocutory appeal in fact is frivolous, and plaintiff’s counsel
have set the stage right, it is reasonably likely in the current legal climate that the
appeal will be dismissed early. It is also reasonably possible defendants or their
counsel will be sanctioned. Review of the pertinent cases, some of which are cited
above, and personal experience suggest that even judges who are very conservative
about substantive civil rights law are becoming increasingly fed up with unjustified
delay and churning. In fact, I have heard several federal judges complain that too
few civil rights plaintiffs even make the effort to certify interlocutory appeals as
frivolous, or to seek early dismissal of and sanctions for filing such appeals.
Lawyers for civil rights should consider doing so more frequently.

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ENDNOTES
1

Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.

2

See, e.g., DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989); Crawford-El v.
Britton, 523 U.S. ___, 140 L.Ed.2d 759, 787 (Scalia and Thomas, J.J., dissenting).
3

See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

4

Mitchell v. Forsyth, 472 U.S. at 525 et seq. (emphasis added). Whether such interlocutory appeals are available in
state court section 1983 lawsuits is strictly a matter of state appellate procedure. See Marian v. Fankell, 520 U.S.
___, 138 L.Ed.2d 108 (1997).
5

See, e.g., Chuman v. Wright, 960 F.2d 104 (9th Cir. 1992).

6

See, e.g., Davis v. Scherer, 468 U.S. 183, 190 (1984).

7

See, e.g. Act Up! /Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993).

8

A government employee or official is absolutely immune from suit for damages, for example, if he or she acted as
a judicial officer, a prosecutor or a legislator. See, e.g., Supreme Court of Virginia v. Consumers Union, 446 U.S.
719 (1980); Pierson v. Ray, 386 U.S. 547 (1967). The civil rights defendant who pleads absolute immunity bears
the burden of demonstrating that he or she enjoys that immunity rather than the more limited “qualified” immunity.
See Cleavinger v. Saxner, 474 U.S. 193 (1985). The absolute immunity issue involves whether the wrongful act was
performed within an immune status. Although figuring this out can be difficult, in most instances it is not. See e.g.,
Buckley v. Fitzsimmons, 509 U.S. 259 (1993).
9

Johnson v. Jones, 515 U.S. 304, 317 (1995); Behrens v. Pelletier, 516 U.S. 299, 313 (1996).

10

If a district court denies a claim of absolute immunity because it finds that defendant was not acting in his or her
immune capacity, or there are triable issues of fact on that issue, it follows that there can be no interlocutory appeal
from such an order for the same reasons stated in the text above.
11

See, e.g., Harding v. Vilmer, 72 F.3d 91 (8th Cir. 1995) (per curiam); Rambo v. Daley, 68 F.3d 203 (7th Cir. 1995);
Sevier v. City of Lawrence, Kan., 60 F.3d 695 (10th Cir. 1995).
12

Berryman v. Rieger, 150 F.3d 561, 564 (6th Cir. 1998).

13

Baulch v. Johns, 70 F.3d 814 (5th Cir. 1995) (emphasis added).

14

Id. at 818.

15

Boots and Proctor v. Bond and Smith, 9th Cir. Nos. 97-35601 and 97-35641 (Unpublished Order, dated Sept. 26,
1997). (The case arose in the District of Oregon, (DC Civ. 95-06408-HO).)
16

Unpublished Order, dated January 14, 1998.

17

See, e.g., United States v. Lanier, 520 U.S. 259 (1997) (applying section 1983 qualified immunity analysis to
analogous civil rights criminal statute).
18

See, e.g., Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir. 1986), cert. denied, 483 U.S. 1020 (1987).

19

Anderson v. Creighton, 483 U.S. 635, 639-40 (1987).

20

Allen v. City of Honolulu, 39 F.3d 936, 939 (9th Cir. 1994).

21

Mendoza v. Block, 27 F. 3d 1357, 1361 (9th Cir. 1994).

22

Browning v. Vernon, 44 F.3d 818, 823 (9th Cir. 1995).
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23

See, e.g., Goodwin v. Metts, 885 F.2d 157 (4th Cir. 1989), cert denied, 494 U.S. 1081 (1990) (involving police
misconduct in 1983 and building on Clark v. Montgomery Ward, 298 F.2d 346, 348 (4th Cir. 1962). Metts was
recently overruled in an unpublished decision on other grounds by Osbourne v. Rose, 133 F.3d 916 (Table
Unpublished Disposition) 1998 WL 17044 (4 th Cir. Jan. 28, 1998).
24

See, e.g., Jean v. Collins, 107 F.3d 1111, 1115-17 (4th Cir. 1997) (involving police misconduct in 1982); Gates v.
Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988) (involving police misconduct in 1982).
25

See, e.g., Chuman v. Wright, 960 F.2d 104 (9th Cir. 1992).

26

See, e.g., In re Amendment to Rule 39 of The Supreme Court Rules, 500 U.S. 13 (1991); In re Eileen Vey, 520
U.S. ___, 137 L.Ed.2d 510 (1997); see also Rule 11, Fed. Rules of Civ. Proc.

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