1. Special Issues in Municipal Litigation Qualified and Official Immunities from Suit, Interlocutory Appeals, and Stays of Discovery Craig E. Leen, City Attorney for the City of Coral Gables

2. Qualified Immunity  Raised in response to federal claim against official in individual capacity  “The doctrine of qualified immunity protects government officials from liability for civil damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Wood v. Moss, 134 S. Ct. 2056, 2066-67 (2014) (emphasis added) (citation and quotation marks omitted); see also Pearson v. Callahan, 555 U.S. 223, 236 (can address prongs in any order) 2

3. Official Immunity  Section 768.28(9)(a) of the Florida Statutes  “ No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” (emphasis added) 3

4. Immunities from Suit 4  Qualified immunity -- “is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Scott, 127 S. Ct. at 1774 n.2 (2008) (emphasis in original)  Official Immunity – “Thus, if a defendant who is entitled to the immunity granted in section 768.28(9)(a) is erroneously named as a party defendant and is required to stand trial, that individual has effectively lost the right bestowed by statute to be protected from even being named as a defendant.” Keck v. Eminisor, 104 So. 3d 359, 366 (2012)

5. Motions Raising Immunity  Motion to Dismiss – see Ashcroft v. Iqbal, 556 U.S. 662, 679-84 (2009)  Motion for Judgment on the Pleadings – following Answer and Rule 7(a) Reply – see, e.g. Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999) – be careful not to base on superseded pleading standard  Motion for Summary Judgment - see Crawford-El v. Britton, 523 U.S. 574, 597-599 (1998)(can be raised at different stages of litigation)  Motion for Special Interrogatories – see Cottrell v. Caldwell, 85 F.3d 1480, 1487-88 (11th Cir. 1996) (Denial of a timely request for jury interrogatories on qualified immunity issue “ would be error.”) (emphasis added) 5

6. Motion to Stay Discovery  Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“Until this threshold immunity question is resolved, discovery should not be allowed.”)  Epps v. Watson, 492 F.3d 1240, 1242 (11th Cir. 2007) ("Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.")  Iqbal, 562 U.S. at 685 (“It is quite likely that, when discovery as to the other parties proceeds, it would prove necessary for petitioners and their counsel to participate in the process to ensure the case does not develop in a misleading or slanted way that causes prejudice to their position.”)  Move to stay all discovery along with motion to dismiss or motion for judgment on the pleadings  Move to limit discovery that is not relevant to qualified immunity inquiry on motion for summary judgment 6

7. Raising Public Record Exemptions in Seeking Stay or Protective Order  Henderson v. Perez, 835 So. 2d 390, 392 (Fla. 2d DCA 2003) (“Accordingly, because Perez made no showing of exceptional necessity or extraordinary circumstances, we grant the petition, issue the writ, and quash that portion of the order of the trial court requiring the disclosure of materials exempted from disclosure by section 119.07(3)(l)(1).”)  Florida State Conference of NAACP v. Browning, 2007 WL 4380060 (S.D. Fla. Dec. 11, 2007) 7

8. Collateral Order Doctrine  “Thus, a decision of a district court is appealable if it falls within ‘that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’” Mitchell v. Forsyth, 472 U.S. 511, 524-25 (1985) (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949) 8

9. Interlocutory Appeal in Federal Court  Qualified Immunity - Forsyth, 472 U.S. at 530 (“Accordingly, we hold that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”)  State Immunities – Depends on whether treated as an immunity from suit under state law. Tinney v. Shores, 77 F.3d 378, 382 (11th Cir. 1996), Griesel v. B.D. Hamlin, 963 F.2d 338, 340-41 (11th Cir. 1992); but see  Keck v. Eminisor – The Florida Supreme Court’s decision in Keck v. Eminisor, determining official immunity was an immediately appealable immunity from suit and ordering a rule change, may make it subject to review under the collateral order doctrine in federal court. 104 So. 2d at 366 (“For the above reasons, we answer the rephrased question in the negative and hold that an order denying summary judgment based on a claim of individual immunity under section 768.28(9)(a) is subject to interlocutory review where the issue turns on a question of law.”). 9

10. Non-Final Order Appeal in State Court  Qualified Immunity – appealable under Rule 9.130(3)(C)(vii) and Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994)  Official Immunity – appealable under Keck, 104 So. 2d at 366, and would be under proposed Rule 9.130(3)(C)(x), which is pending in the Florida Supreme Court as Case No. 13-1493. 10

11. Petition for Writ of Certiorari in State Court  Consider Petition for Certiorari if motion for protective order or stay is denied relating to qualified immunity or official immunity, and if irreparable harm can be demonstrated.  Would need to seek stay of discovery order pending petition in trial court and then appellate court – see Fla. R. Civ. P. 9.310. 11

12. Representing Police Officers and Government Officials  § 111.07, Florida Statutes (includes civil rights lawsuits)  Nuzum v. Valdes, 407 So. 2d 277, 279 (Fla. 3d DCA 1981) (“To deny a public official representation for acts purportedly arising from the performance of his official duties would have a chilling effect upon the proper performance of his duties and the diligent representation of the public interest.”)  Florida Bar Rule 4-1.7  “explanation of the implications of the common representation and the advantages and risks involved” - Florida Bar Rule 4-1.7(d) 12

13. Mediation  Mediation for Interlocutory Appeals  Federal Rule of Appellate Procedure 33 and Eleventh Circuit Rule 33-1  Eleventh Circuit’s Kinnard Mediation Center  Request for Extension on Brief Pending Mediation 13

14. Final Judgments and Individual Capacity Suits  §111.071 Payment of judgments or settlements against certain public officers or employees.  (1) Any county, municipality, political subdivision, or agency of the state which has been excluded from participation in the Insurance Risk Management Trust Fund is authorized to expend available funds to pay:  (a) Any final judgment, including damages, costs, and attorney’s fees, arising from a complaint for damages or injury suffered as a result of any act or omission of action of any officer, employee, or agent in a civil or civil rights lawsuit described in s. 111.07. If the civil action arises under s. 768.28 as a tort claim, the limitations and provisions of s. 768.28 governing payment shall apply. If the action is a civil rights action arising under 42 U.S.C. s. 1983, or similar federal statutes, payments for the full amount of the judgment may be made unless the officer, employee, or agent has been determined in the final judgment to have caused the harm intentionally. (emphasis added) 14

15. Other Potential Individual Immunities to Remember  Legislative Immunity  Judicial Immunity  Executive Immunity  Other Absolute Immunities  Statutory Immunities (i.e. good faith immunities)  Discretionary Function Sovereign Immunity  Eleventh Amendment Immunity 15

16. Florida Rules of Appellate Procedure Rule 9.130. Proceedings to Review Non-Final Orders and Specified Final Orders  (1) This rule applies to appeals to the district courts of appeal of the non-final orders authorized herein and to appeals to the circuit court of non-final orders when provided by general law. Review of other non-final orders in such courts and non-final administrative action shall be by the method prescribed by rule 9.100.  (2) Appeals of non-final orders in criminal cases shall be as prescribed by rule 9.140.  (3) Appeals to the district courts of appeal of non-final orders are limited to those that  (A) concern venue;  (B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions;  (C) determine  (i) the jurisdiction of the person;  (ii) the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment;  (iii) the right to immediate monetary relief or child custody in family law matters;  (iv) the entitlement of a party to arbitration, or to an appraisal under an insurance policy;  (v) that, as a matter of law, a party is not entitled to workers' compensation immunity;  (vi) that a class should be certified;  (vii) that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law;  (viii) that a governmental entity has taken action that has inordinately burdened real property within the meaning of section 70.001(6)(a), Florida Statutes; or  (ix) the issue of forum non conveniens.  (D) grant or deny the appointment of a receiver, and terminate or refuse to terminate a receivership. 16

17. Proposed Amendments to the Florida Rules of Appellate Procedure  ( 3) Appeals to the district courts of appeal of non- final orders are limited to those that  (C) determine  (x) that, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes; or  (xi) that, as a matter of law, a party is not entitled to any immunity from suit not otherwise addressed in this rule.  Pending in Florida Supreme Court as Case No. 13-1493 17