Thread by @RMFifthCircuit

OK. A thread on the case that has me hot this morning. Of course, qualified immunity. What happened? In broad strokes, Plaintiff's family alleges that he was surrounded by the police and beaten to death. There is a video. 1/

The district judge, unsurprisingly, denied qualified immunity at the motion to dismiss stage.

Remember, that you get an immediate interlocutory appeal from a denial of qualified immunity. So the officers appealed. On what basis? Well, there's the thing. 2/

They don't and can't really say there was no violation of law alleged, or that it wasn't clearly established. Instead - and I am not joking - their argument is that the Complaint's allegations are not specific enough about what each officer did, so the case should /3

be reversed and remanded for discovery so that the plaintiff can replead with more facts. That is the remedy they ask for during oral argument, which you can listen to here. ca5.uscourts.gov/OralArgRecordi… /4

As Judge Duncan rightly asks, what is the point of that? You can have another go at summary judgment at qualified immunity anyway. So why a remand to do discovery and then file a new motion to dismiss? /5

Well, says Louisiana, there's a lot of other stuff going on at summary judgment (experts, etc.) so that would be burdensome to the individual officers who "might not" have been the particular ones beating and kicking the innocent victim. /6

Seen from outside qualified immunity, that is a pretty ridiculous position. It is especially ridiculous because Louisiana refused to release the video. /7

So if Louisiana really wanted to say this officer did beat him, but this other officer only tased him, and this other fellow choked him, so the claims against each have to be different, probably they should have released the video. /8

But let's say that the Defendants' remedy is granted. The denial of QI is reversed, and they get to do discovery about QI. Then the plaintiff repleads with the video now, and details on each.

They're going to move to dismiss again, and they're going to get *another* appeal. /9

The case was filed in May 2020. It's up on appeal now, so October 2021. Let's say it is resolved by January 1, 2022. If they win, add another 1.5 years BEFORE the case can even get going - and we're talking about a case where there is obvious liability against *someone* /10

In that scenario, the supposed pleading deficiencies in the Complaint (and they really are tendentious to begin with) should have little purchase. Let the case go forward. Sort out which officers there is evidence against. File MSJs. That's the right path. /11

To summarize: the officers raised a made-up defense (qualified immunity) after beating someone to death on video; they are given a made-up interlocutory appeal (through the collateral order doctrine); their only real argument is the *complaint* wasn't detailed enough /12

literally because they hid the video that would have let it get more detailed; and so they should get reversal so they can replead and get another made-up interlocutory appeal before the case really begins, when they have yet another made-up opportunity to appeal anyway.

It happens that the plaintiff here is represented by super-high-powered counsel (@PaulWHughes). So probably they will navigate all of this even in the event of reversal. But what if you don't have Paul Hughes? What if you need resolution?

Note, I am not saying these defendants should not get every drop of the normal right to defend themselves all normal civil defendants get - and that's a lot of stuff! I do that for a living. It's very hard to get a verdict, especially against the government.

But these layers upon layers of completely invented defenses that do nothing but delay an obviously meritorious case (which even the defense realizes is meritorious, just against some people not all) from figuring out who is liable is just outrageous. /end

By the way, what about the officer who legitimately didn't do anything? Aren't they being unfairly lumped in here?

No. It's easy to solve that problem. He can file a motion for summary judgment the day this case is remanded, with affidavits and whatever else.

If the plaintiff can't come up with any evidence he did anything, the claims against him will be dismissed. No problem.

Again, no other kind of defendant would get 5% of this level of consideration.

And that's not because private civil defendants are run over in federal court. They're not! I know, because that's my job! But you don't get 3 appeals just because you're sad you have to do some discovery.

And let me really end with this: Congress could sort this out tomorrow, because this is a federal law issue, and they could create a balanced and more limited immunity for police if they wanted. It's not off/on. But they haven't.