Jefferson v. Lias, ___ F.4th ___ (3d Cir. 2021). Back in 2019, this post discussed a circumstance where two of the three judges on a Third Circuit panel filed an opinion concurring in the panel’s unanimous opinion, of which those two judges were, of course, also part. Yesterday, a panel of three other Third Circuit judges went that one better in this case, which was brought under the Civil Rights Act, 42 U.S.C. 1983, and on other theories.
The case involved “a police shooting that occurred during the course of a car chase,” as Judge Restrepo summarized it in his unanimous opinion for the panel. The Third Circuit reversed a summary judgment for the defense. The other two judges on the panel were Judges McKee and Fuentes. Among other things, the opinion rejected the District Court’s conclusion that qualified immunity was appropriate.
Judge McKee authored a concurring opinion. He began by saying: “I join the Court’s opinion in its entirety and agree that we must vacate the District Court’s grant of summary judgment and remand for the reasons my colleagues explain. I write separately because I think it is important to explain that the deference to law enforcement that consistently results in qualified immunity in excessive force cases is inconsistent with the vast amount of research in such cases as well as the evolving national consensus of law enforcement organizations.” He then elaborated on that theme in a detailed opinion.
But Judge McKee’s concurrence was also joined by Judges Restrepo and Fuentes, as his concurrence stated. (“MCKEE, Circuit Judge, with whom Judges RESTREPO and FUENTES join, concurring.”). One might wonder why the discussion contained in the concurrence was not simply incorporated into the unanimous opinion by Judge Restrepo. And should the concurrence, joined as it was by all three judges on the panel, receive less precedential weight than if it had been absorbed into the main opinion? It does not seem so. An interesting wrinkle for discussion.