Jeri Lynn Rich, Representative for Gavrila Covaci Dupuis-Mays, an Incapacitated Person v. Michael Palko, et al.

The Court’s “collateral order” doctrine permits interlocutory appeal with a two- pronged test for a government official’s claim to qualified immunity: (i) whether the official violated a constitutional right, and (ii) whether the right was clearly established in the context involved. When determining jurisdiction to review, some Circuits require the appellant to 1) stipulate to the Plaintiff’s version of the facts; 2) accept the trial courts’ recitation of the facts; 3) or review the trial courts’ identification of material disputes of fact for legal sufficiency only and 4) when there are no specific findings by the trial court, remand for the findings or “scour the record” for the disputed issues of material fact that might suggest a Constitutional violation. Also, some lower courts, including the Fifth Circuit, also bifurcate the second prong and separately ask whether the defendant’s conduct was objectively unreasonable. This can result in factual reasonableness being considered in the second prong. Accordingly, the question presented is: When courts are deciding qualified immunity in Fourth Amendment cases, shouldn’t they recite the trial court’s identification of the disputed issues of material fact regarding the seizure and excessive force when exercising “collateral order” jurisdiction and before applying the second, “clearly established” prong of the test?