Civil Rights - Qualified immunity

Where defendant officers have filed an appeal challenging the denial of their summary judgment motion, the officers failed to sufficiently assert qualified immunity in their motion for summary judgment, thereby forfeiting that defense.

“In this interlocutory appeal from a partial denial of summary judgment, Defendants-Appellants Berrien County Jail officers (‘Officers’) argue that they properly raised a qualified immunity defense, and that Plaintiff-Appellee Wendy Cockrun’s evidence did not create a genuine dispute of material facts to overcome summary judgment. But we do not linger on the merits of the case or the standard of qualified immunity: the issues presented can be answered solely on procedural grounds. We conclude that Officers failed to sufficiently assert qualified immunity in their motion for summary judgment, and therefore forfeited the defense. For that reason, we dismiss Officers’ summary judgment claim for want of jurisdiction. In the alternative, we hold that even if Officers did assert qualified immunity, we still would not have jurisdiction over their appeal because they only raised questions of fact instead of questions of law.

“Officers allege that the district court erred in concluding that they failed to raise qualified immunity and accuse the district court of mischaracterizing the burden of proof with respect to qualified immunity. But the burden of proof of qualified immunity has little to do with the issue before us. Rather, at issue is Officers’ failure to raise a developed qualified immunity argument before the district court.

“Officers claim that their three mentions of qualified immunity were enough to raise the issue. But ‘an issue is deemed forfeited ... if it is merely mentioned and not developed.’ Because Officers only mentioned qualified immunity in their motion for summary judgment in a perfunctory manner, devoid of applied facts or developed argumentation, they forfeited qualified immunity.

“Accordingly, we affirm the district court’s conclusion that Officers forfeited qualified immunity by failing to develop the argument in their motion for summary judgment. Because Officers forfeited qualified immunity, their interlocutory appeal is simply a summary judgment argument over which we do not have jurisdiction.

“We AFFIRM the district court’s conclusion that Officers forfeited their qualified immunity defense. We DISMISS Officers’ appeal of the denial of their motion for summary judgment on Cockrun’s First and Eighth Amendment claims for lack of jurisdiction.”

Cockrun v. Berrien County, Mich; MiLW 01-108003, 8 pages; U.S. Court of Appeals for the Sixth Circuit; Siler, J., joined by Mathis, J., Bloomekatz, J.; on appeal from the U.S. District Court for the Western District of Michigan at Grand Rapids; James T. McGovern for appellants; Shawn C. Cabot for appellee.

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