This term, the US Supreme Court will decide Plumhoff v. Rickard, a qualified immunity case arising out of the police shooting deaths of a man and woman in Memphis, Tennessee. The case would be easy for many court observers to miss. Unless they handle civil rights cases, most attorneys are only dimly aware of qualified immunity principles and do not think of those cases as impacting their practice. The court could also easily choose to punt. The decision below did not clearly frame its analysis and the court could remand the case to give the court of appeals the opportunity to clarify its decision. Lurking in the case however, are procedural threats to the civil jury trial right guaranteed by the Seventh Amendmentnot just in qualified immunity cases, but also in any other type of case where video evidence is available.
The Facts and Decisions Below in Plumhoff
The facts of Plumhoff are tragic under any view. Around midnight on July 18, 2004, an Arkansas police officer stopped Donald Rickard and Kelley Allen for a broken headlight. Rickard and Allen fled and several officers pursued them across state lines into Tennessee. After cornering Rickard and Allen in a Memphis parking lot, the officers shot them fifteen times at close range, killing both. So far as the record establishes, Rickard and Allen had not committed any crime other than driving without working lights.
Portions of the stop, pursuit and shootings were captured by three video cameras mounted on police cruiser dashboards. Despite these videos and despite affidavits and deposition testimony from the officers, questions remain about exactly what happened that night. During the highway portion of the pursuit, did Rickard (who was driving) intentionally strike an officer's vehicle? Did he strike any other vehicle? When the police cornered Rickard in the parking lot, did he intentionally collide with a police cruiser or was he instead rammed from behind by an officer? When Rickard was trying to pull out of the parking lot, did he strike one officer's hand and nearly strike another? After Rickard backed away and began to drive past the officers, were they at any risk of harm? When the officers fired on the car fifteen times, did Rickard and Allen pose a threat to any member of the public?
Rickard's and Allen's family members brought suit, alleging Fourth Amendment violations and other state law claims. In the trial court, the officers moved for summary judgment on the basis of qualified immunitya common law doctrine that protects government officials from suit where their actions were reasonable, even if mistaken, and that requires the court to consider whether (1) the officers' conduct violated a statutory or constitutional right and (2) the right was clearly established at the time of the incident. Following a detailed analysis of the facts and relevant law, the court concluded that there were issues for trial because the crime at issue (driving without fully functioning lights) was minor, the suspects posed little immediate threat to the officers or others and the pursuing officers might be just as culpable for creating a hazard to other drivers as was Rickard.
The officers sought an interlocutory appeal. After reviewing the video, the US Court of Appeals for the Sixth Circuit held that it did not provide clear support for either the plaintiffs' or the officers' version of events and so affirmed the trial court. The officers petitioned the Supreme Court for a writ of certiorari, which was granted.
The Issues Before the Supreme Court and Impacts on the Seventh Amendment Jury Trial Right
In their briefing before the court, the officers have focused on two arguments. First, they claim the Sixth Circuit erred by looking to case law that postdated the shooting to determine whether the officers' conduct violated Rickard's and Allen's clearly established rights. Second, they argue that the facts established that the officers acted reasonably under the circumstances§or at least not so unreasonably that they should be denied the protection of qualified immunity. Rickard's family has argued that the Sixth Circuit properly dismissed the appeal for lack of jurisdiction and that factual issues remain which make it impossible to determine, at the summary judgment stage, whether the officers acted reasonably as a matter of law.
Underpinning these arguments are questions about the role of the jury in qualified immunity cases, the impact of video evidence on summary judgment decisions and the degree of supervision appellate courts should exercise over these cases. Each of these procedural issues arises from latent tensions between the Supreme Court's longstanding jurisprudence on qualified immunity and interlocutory appeals and its 2007 decision in Scott v. Harris.
Scott was another videotaped police pursuit qualified immunity case. A Georgia deputy clocked a motorist, Victor Harris, at 73 mph on a 55 mph highway and attempted to pull him over. Harris refused to stop and a chase ensued. Other officers joined in and eventually one of them, Timothy Scott, rammed Harris from behind. Harris lost control of his car, which careened off the highway and overturned, leaving Harris a quadriplegic. A dashboard video camera captured much or all of these events. Harris brought suit and Scott moved for summary judgment on qualified immunity grounds. The trial court denied the motion and the appellate court affirmed.
The Supreme Court reversednot on any legal ground, but because it disagreed with the lower courts' interpretation of the videotape. Applying the established standard of review and considering the facts in the light most favorable to the nonmoving plaintiff, the lower courts had determined that Harris had remained in control of his vehicle, slowed for turns and intersections and typically used his indicators for turns. They also found that he did not run any motorists off the road, was not a threat to pedestrians in the shopping center parking lot where he was almost captured and that there were no motorists or pedestrians on the road at the time Scott rammed him. Justice Antonin Scalia, writing for the court, saw instead "a Hollywood-style car chase of the most frightening sort," with Harris racing down narrow, two-lane roads in the dead of night, swerving around more than a dozen other cars, crossing the double-yellow line and forcing cars traveling in both directions to the shoulder to avoid being hit. The court considered Harris's version of the facts so blatantly contradicted by the record that no reasonable jury could believe it and ordered summary judgment entered in favor of Scott. Only Justice John Paul Stevens dissented, viewing the video evidence much as the lower courts had.
The court was so certain of its take on the videotape in Scott that it posted a link online so that the video could "speak for itself." As it turns out, not everyone shared the court's view. A study (PDF) published in the Harvard Law Review in 2009 showed 1,350 Americans the Scott videotape. While a substantial majority (seventy-five percent) interpreted the videotape as the Court dididentifying Harris as the more culpable party and Scott's use of force as reasonablea significant minority (twenty-five percent) did not. Instead, these viewers saw the police as the source of the danger posed by the flight and found the deliberate ramming of Harris's vehicle unnecessary to avert the risk to the public. Had the Scott matter gone to trial, at least some rational jurors would have found in favor of the motoristsuggesting that Victor Harris was wrongfully denied his Seventh Amendment right to jury trial and that courts should be hesitant to conclude that video evidence can eliminate disputed factual issues.
Scott also did damage to the court's longstanding precedent on interlocutory appeals. Until that decision, the court had upheld appeals by public officials from denials of summary judgment on qualified immunity grounds only where the appeals raised purely legal issues and not when they challenged a trial court's determination that there remained genuine issues of fact for trial. Although the appeal in Scott was of the latter sort, the court permitted it without considering its prior holdings.
The appellate courts have differed in their efforts to reconcile these decisions, with some circuits reading Scott as an exception to the earlier case law; others reading it as the outer limit of the existing principles; and still others taking its fact-intensive review as the appropriate approach on any qualified immunity interlocutory appeal. This tension was apparent in Plumhoff, where the Sixth Circuit initially dismissed the interlocutory appeal for want of jurisdiction; then reversed course and accepted the appeal; and ultimately upheld the district court decision both on the merits of the summary judgment ruling and on the ground that the interlocutory appeal was inappropriate.
If the court takes these issues head on in Plumhoff, its decision could have a significant impact on the civil jury not only in qualified immunity cases, but also well beyond. If an interlocutory appeal is available from every denial of summary judgment on qualified immunity grounds, then the fact-bound issues of the nature of the seizure, the characteristics and conduct of the citizens and the risks presented by the citizens and the officers will be reviewed on ostensibly "legal" grounds by appellate courts far removed from the events in time and space. More broadly, if videotape can eliminate the possibility of factual disputes then many civil cases where video evidence is available will present purely "legal" issues to be resolved by judges rather than juries. The principle animating the decision in Scott has no limitation: The court simply disagreed with the plaintiff's and lower courts' view of the facts and substituted its own judgment. If the court were to endorse this approach again in Plumhoff, it could represent the widening of a troubling "video exception" to the Seventh Amendment jury trial right.
Christopher Wimmer is the founder of Emergent Legal, a San Francisco civil litigation firm. Before founding Emergent, Chris graduated from Columbia Law School with numerous honors, clerked for the Honorable Jack B. Weinstein in the United States District Court for the Eastern District of New York and practiced with firms in New York and San Francisco.
Suggested citation: Christopher Wimmer, Plumhoff v. Rickard: The "Video Exception" to the Seventh Amendment Jury Trial Right, JURIST - Sidebar, Mar. 19, 2014, http://jurist.org/sidebar/2014/03/christopher-wimmer-qualified-immunity.php.
This article was prepared for publication by Jason Kellam, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org