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The Mandate Rule and another Thinly-Sliced Qualified Immunity Opinion from the Fourth Circuit

A while back I wrote about the collateral order doctrine as discussed by the Fourth Circuit in Williams v. Strickland. (See prior blog post here).  Williams involved an alleged excessive force claim against a law enforcement officer and an interlocutory appeal from the denial of the officer’s motion for summary judgment on the ground of qualified immunity.  The Court held that the officer was not entitled to qualified immunity (at least at that point in the case) because the established law is that the use of deadly force by an officer may be justified at one point in an encounter with a suspect, but unjustified a moment later in the same encounter.  In discussing Williams, I commented:

As one who regularly defends law enforcement agencies and officers, I can say that this is undoubtedly a difficult result for law enforcement.  Given the nature of the job and the situations that sometimes confront officers, a rule of law that requires officers in the heat of an encounter in which their lives or the lives of others are in danger to recognize the precise moment that the threat dissipates and immediately change their behavior, is arguably unworkable in practice.

Last week, the Fourth Circuit addressed essentially the same issue in Harris v. Pittman: whether a law enforcement officer who used potentially deadly force against a fleeing suspect during an altercation in which the suspect tried to kill the officer is entitled to qualified immunity if, under the facts viewed in the light most favorable to the suspect, the threat to the officer’s life diminished at some point during the altercation.  Continuing the trend from the Williams, and perhaps taking it a step further, the majority answered that question in the negative.

No factual summary in a blog post like this could be an adequate substitute for reading the facts as set out in both the Fourth Circuit majority’s opinion and Judge Wilkinson’s dissent in Harris.  If you have an interest in the issue of qualified immunity, I recommend you to read the case in its entirety.  But the barest of essentials are that a police officer was chasing a fleeing suspect (the plaintiff), and when the officer caught the plaintiff, a physical struggle ensued.  During that struggle the officer shot the plaintiff three times.

As set out by the majority, the “critical disagreement is over the precise circumstances under which [the officer] fired his final shots at [the plaintiff]: whether…a deadly struggle was ongoing, with [plaintiff] standing over [the officer] as [the officer] fired; or whether…the struggle was over, with [plaintiff] lying on the ground, wounded and unarmed, when [the officer] stood above him and fired two more shots into his chest and leg.”  As was the case in Williams, the majority noted that “even where an initial use of deadly force is reasonable, the repeated use of force may be constitutionally excessive if circumstances change in material ways.”  Where the majority and dissent diverged was on the issue of a material change in circumstances.  There was no question that the first shot by the officer was a justified use of force; the plaintiff himself conceded that.  But whether the next two shots were reasonable or excessive was the question to be analyzed in light of the record facts and the requirement that on summary judgment those facts, and the inferences therefrom, must be viewed in the light most favorable to the plaintiff (the non-movant).

Of procedural importance to the majority was that this was not the first time the case had come before the Court.  In 2016 the Court had issued a per curiam opinion reversing the district court’s prior grant of summary judgment to the officer on the ground of qualified immunity.  The reversal was based on the Court’s determination that the district court had not applied the appropriate summary judgment standard , in that it did not construe the salient facts in the light most favorable to the plaintiff.  Thus, the case was remanded for the district court to “determine, in the first instance, if construing the salient fact in the light most favorable to [plaintiff, the officer] is entitled to qualified immunity.”  According to the Court, viewing the record facts in the light most favorable to the plaintiff meant that on remand the district court must assume that “[the plaintiff] was laying on the ground when [the officer], still on top of him, fired the final shots.”

On remand, the district court again granted summary judgment to the officer on the basis of qualified immunity.  The district court held that when the facts were viewed in the light most favorable to the plaintiff, the officer had not violated the plaintiff’s Fourth Amendment rights because the use of force was objectively reasonable as a matter of law.  The district court further held that even if the facts could support a Fourth Amendment violation, the law was not clearly established at the time of the incident such that the officer would have known that his conduct was unconstitutional.

On the case’s second visit to the Fourth Circuit, the majority criticized the district court for misapprehending its mandate to view the facts in the light most favorable to the plaintiff.   Under “the mandate rule,” a lower court typically may not revisit issues in a case that have already been decided by the mandate from a higher court.  Issues conclusively decided by the appellate court are not remanded, and any issues that could have been raised on appeal the first time, but were not, are waived.  But, according to the majority, the district court’s second grant of summary judgment to the officer was based, in part, on the district court’s construction of facts to suggest that the officer was not standing over the plaintiff when the final two shots were fired.  Under the mandate rule, this was inappropriate because the Fourth Circuit’s prior opinion already conclusively established that for the purposes of the summary judgment analysis, in which all inferences from the facts must be drawn in favor of the plaintiff, the court had to consider that the final two shots were fired with the officer standing and the plaintiff on the ground.  The majority rejected what it viewed as the district court’s error in again drawing inferences in favor of the officer (contrary to “our mandate and our circuit’s governing law”).

The district court was not the only one  charged with running afoul of the mandate rule.  After remand and a second grant of summary judgment in the officer’s favor, the officer argued for the first time (apparently on appeal) that the plaintiff’s account of the encounter should not be credited because it was “blatantly contradicted by the record.”  The Fourth Circuit majority held that this argument was foreclosed by the mandate rule that precluded the officer from raising it before the district court on remand.  While the majority did not elaborate on this point (and in fact went on to analyze and reject this argument), because the Fourth Circuit had affirmatively stated in its prior opinion that the pertinent question on remand was whether the officer used excessive force when he fired two additional shots at the plaintiff while the officer was standing and the plaintiff was on the ground, neither the distrcit court nor the officer could make an argument that was inconsistent with these facts; the scope of analysis was already determined.

Ultimately, the majority reversed and remanded, finding that under the facts viewed in the light most favorable to the plaintiff a reasonable jury could conclude that a reasonable law enforcement officer would have known during his encounter that after he fired the first shot and before he fired the second and third shots, the plaintiff no longer posed a threat to the officer’s life.  (The second prong of qualified immunity, whether the law was clearly established that such a change in circumstances removes the justification for using deadly force, was answered in the affirmative by the majority).  Thus, it was for a jury to decide whether, in light of all the evidence, a reasonable officer would have believed that the situation with which he was confronted after having hit the plaintiff with his first shot was such that the additional two shots passed constitutional muster.

Judge Wilkinson penned a strong dissent.  In his opinion, the record facts did not support the plaintiff’s version of the events that the majority credited; the majority “turned a blind eye” to facts that were inconsistent with the plaintiff’s story.    According to the dissent, “there is simply no way that a reasonable juror could look at an account so devoid of independent factual development, so full of unsupported accusations, and so weakened by blatant contradiction in the record and walk away with the sense that [the plaintiff’s] version of events is accurate, or in any way compelling.”  Thus, Judge Wilkinson believed that the plaintiff had not carried his burden of showing a “genuine” dispute, and the Court should have adopted the version of events “supported by objective record evidence,” i.e., the officer’s version of events.

But could the district court on remand, and subsequently the Fourth Circuit on appeal from the second grant of summary judgment, actually have done what the dissent suggests should have been done?  Or, as the majority posited, would the mandate rule have prohibited such an argument by the officer and analysis by the district court?  Once the Fourth Circuit remands with instructions to determine whether summary judgment was appropriate in light of a certain set of facts articulated by the Court, is there any wiggle room for the district court to deviate from those facts?  What about when it returned to the Fourth Circuit?  Would the second panel to receive the case be bound by the mandate of the first panel?  After all, the Fourth Circuit abides by “the basic principle that one panel cannot overrule a decision issued by another panel.”  See McMellon v. United States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc).  Of course, that principle is not absolute, and a decision by one panel (or by the en banc court) does not bind a subsequent panel if the decision was based on authority that proved to be “untenable.”   See U.S. Dep’t of Health & Human Servs. v. Fed. Labor Relations Auth., 983 F.2d 578, 581–82 (4th Cir. 1992).  Could further development of the arguments surrounding the factual record on remand allow for a deviation from the mandate rule?

It’s possible that we will get an answer to this question.  As Judge Wilkinson’s dissent notes, the Supreme Court of the United States regularly reviews (and reverses) opinions from the circuits denying qualified immunity to law enforcement officers.  And Judge Wilkinson is no stranger to having the highest court take up a cause for which he has passionately dissented; just last week the Supreme Court ruled consistent with Judge Wilkinson’s dissent in reversing the Fourth Circuit’s holding that a World War I monument in the shape of a cross that was maintained with public funds was not a violation of the Establishment Clause.  (See previous blog post on that case here).

Beyond the interesting issue raised by the mandate rule, this case presents a number of other issues.  It highlights a possible tension between the summary judgment standard that requires all facts and inferences to be viewed in the light most favorable to non-movants and the qualified immunity doctrine that is required to be analyzed from the viewpoint of the officer.  It also raises the question of whether qualified immunity has been eroded to the point that the doctrine’s purpose (immunity from suit not just immunity from liability) has been defeated.  Certainly law enforcement officers who protect and serve in the Fourth Circuit could not be blamed for wondering.

–Patrick Kane

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