Besides inventing qualified immunity out of whole cloth in order to shield police and other government officials from liability for their own misconduct unless it was “clearly established” that the particular rights-violation they committed was unlawful, courts allow defendants to appeal decisions denying qualified immunity even when those decisions are non-final and thus outside the statutory jurisdiction conferred by Congress on the federal courts of appeals.

The question presented in Asante-Chioke is whether this so-called “collateral order doctrine” extends not just to denials of qualified immunity but to discovery orders as well. The Fifth Circuit said yes, and Cato, together with Public Accountability, filed an amicus brief in support of a cert petition asking the Supreme Court to reverse that decision and begin the process of dialing back the collateral order doctrine, ideally on the way to eliminating it altogether in qualified immunity cases.

This case arises out of the police shooting of Jabari Asante-Chioke in Jefferson Parish, Louisiana. Asante-Chioke was armed with a gun and a knife and experiencing mental distress when police arrived and attempted to take him into custody. They claim he raised his gun at them, whereupon they began firing. Asante-Chioke immediately fell to the ground, dropping the gun. Police continued firing a total of 36 times, striking Asante-Chioke 24 times. HIs daughter sued under §1983, on the grounds that continuing to shoot her father after he was on the ground and incapacitated constituted excessive force.

The defendants moved to dismiss on various grounds and to limit discovery to the issue of qualified immunity. One of the defendants, Officer Dowdle, went further and moved to dismiss on the basis of qualified immunity, arguing that his alleged act of continuing to shoot a neutralized subject was not clearly unlawful. The district court correctly denied that motion and also denied the remaining defendants’ efforts to limit discovery to the issue of qualified immunity. The defendants appealed the orders denying their motions to dismiss and their motion to limit discovery.

On appeal, the defendants abandoned their motions to dismiss and argued only that the district court was wrong in denying their motion to limit discovery to facts relating to qualified immunity. The plaintiff argued that the Fifth Circuit lacked jurisdiction to review a non-final discovery order, even one related to qualified immunity, because (1) there is no congressionally authorized, statutory jurisdiction to review such orders; and (2) discovery orders—including ones related to qualified immunity—do not fall within the narrow scope of the “collateral order” doctrine, which empowers courts to review a small class non-final orders like the denial of qualified immunity. The Fifth Circuit rejected those arguments, asserted jurisdiction over the appeal, and remanded to the district court for further limited discovery proceedings.

In their amicus brief, Cato and Public Accountability argue that the so-called collateral order doctrine, which allows §1983 defendants to appeal non-final denials of qualified immunity despite the lack of statutory authorization, is a “product of New-Deal era freewheeling judicial policymaking” and is plainly obsolete today, whatever its original merits. The brief also explains that qualified immunity is textually and jurisprudentially baseless and was in fact plainly foreclosed by language in the as-enacted version of §1983 that was erroneously omitted in an 1874 compilation of the federal statutes. The Fifth Circuit compounded those errors and created a “jurisdictional free-for-all” by expanding to mere discovery orders the availability of an illegitimate appellate doctrine arising from the illegitimate affirmative defense of qualified immunity. The Supreme Court should take this opportunity to begin the process of unraveling some of the myriad government-favoring errors that help render the playing field in civil rights cases persistently unlevel.