By: Peter Munk
The Supreme Court recently issued a per curiam opinion in Tolan v. Cotton vacating the Fifth Circuit Court of Appeal's grant of summary judgment to a police officer on the basis of qualified immunity. Tolan is noteworthy for two reasons. First, it marks the first time in 10 years that the Court has ruled against a police officer in a qualified immunity case. Second, the Court's decision to vacate and remand was based on the lower courts' "clear misapprehension of summary judgment standards." In other words, the Court scrutinized the factual record and determined that the lower courts had failed to construe facts in the light most favorable to the non-moving party. Justice Samuel Alito (joined by Justice Antonin Scalia) concurred in the judgment, but noted that error-correction of this nature by the Court would "very substantially alter the Court's practice."
Tolan suggests that the Court is willing to peer behind the factual curtain in tough qualified immunity cases. Knowing this, lower courts may think twice before granting summary judgment in such cases. Indeed, in the weeks following the release of the opinion, lower courts deciding qualified immunity cases have begun citing to Tolan to signal that they have carefully applied the summary judgment standard. This early reaction from lower courts suggests that Tolan may make judges more hesitant to grant summary judgment in qualified immunity cases, knowing that their factual findings will be closely scrutinized on appeal.