Publication Date



When a district court denies qualified immunity at summary
judgment, defendants have a limited right to immediately
appeal that decision. In Johnson v. Jones, the U.S. Supreme
Court held that courts hearing these appeals have jurisdiction
to address only whether the facts the district court took as true
in denying immunity amount to a clearly established violation
of federal law. They lack jurisdiction to look behind the facts
that the district court assumed were true to see whether the
evidence supports those facts. Despite this seemingly clear rule,
defendants regularly flout Johnson’s jurisdictional limits,
taking improper appeals that create extra work and impose
wholly unnecessary costs and delays on civil rights plaintiffs.
And the Court’s decision in Scott v. Harris—which appears to
violate Johnson’s limits without mentioning Johnson or even
appellate jurisdiction—has made the jurisdictional rules
governing qualified-immunity appeals even less certain.
In this Article, I address the law governing jurisdiction in
qualified-immunity appeals from summary judgment. I show
that Johnson can be read to mean only that the courts of
appeals generally lack jurisdiction to review whether the
summary-judgment record supports the district court’s
assumed facts. I explain how to reconcile the analysis in Scott
with the rule in Johnson: Scott created an exception to the
general limit on reviewing the district court’s assumed facts
when something in the record blatantly contradicts those facts.