Seventh Circuit Rejects Government Argument that It May Decide Qualified Immunity Issue before the District Court Can Address the Issue

Per Khorrami v. Rolince, --- F.3d ----, 2008 WL 3917557 (7th Cir. Aug. 27, 2008):

In the event of a brief pretrial postponement of a qualified immunity argument at the same time as the court is considering a motion under Rule 12(b)(6), the district court is the only judicial tribunal that may revisit the issue. While this will embroil the defendant official for a brief time in the litigation, there is no way to avoid these burdens altogether and at the same time conduct the litigation in a way that is fair and orderly to both parties. The fact that the Supreme Court has recognized that more than one appeal from an order denying qualified immunity is permissible, see Behrens, 516 U.S. at 306-07, shows that the Court recognizes that a certain amount of pretrial activity, including the discovery necessary to prepare a motion for summary judgment (or defend against one), is inevitable.

All of what we have just said may have been true before the Supreme Court decided Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), the Government concedes, but, in its view, Twombly changed everything. A complaint must now include “enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. In an interlocutory appeal from a denial of qualified immunity, the first question is “whether or not certain given facts showed a violation of ‘clearly established law.’ “ Johnson, 515 U.S. at 311; see also Mitchell, 472 U.S. at 528 n. 9 (“We emphasize at this point that the appealable issue is a purely legal one: whether the facts alleged ... support a claim of violation of clearly established law.”). Whether or not the district court had anything to say about it, the Government asserts that we can look at the complaint for ourselves and decide whether Khorrami can make such a showing.

This is not an appropriate way to proceed. Taken as a general proposition, it would invite interlocutory appeals on qualified immunity issues before anyone even presented the argument to the district court. The fact that appellate review from decisions to dismiss cases under FED. R. CIV. P. 12(b)(6) is de novo does not mean that litigants are entitled to bypass the district court altogether. Even if this were permissible, moreover, nothing in Twombly suggests that Khorrami's complaint is inadequate for this purpose. Khorrami's allegations about Rolince's knowledge are plausible, and only discovery will show whether they are correct. Whether Rolince in fact was aware, unaware, or reckless has yet to be shown, but those facts need not be pleaded in the complaint. See Erickson v. Pardus, 127 S.Ct. at 2200. The Government suggests that perhaps a higher pleading standard is appropriate in a qualified immunity case, but the Supreme Court has squarely rejected that proposition. See Crawford-El v. Britton, 523 U.S. 574, 594-96 (1998).