April 17, 2019 Articles

The Shockingly Common Use of Non-Precedential Opinions in Sixth Circuit Taser Litigation

A law student’s discovery.

By Ahmed Bahgat

This fictional fact pattern is a short summary of a brief topic from my first year of law school:

One cold Michigan night, a police officer initiated a routine traffic stop. Suspecting the driver was intoxicated, the officer conducted a field sobriety test and arrested the driver. One of the car passengers, enraged by the arrest, shouted at the officer, exited the car, and reached into his jacket pocket to grab his cell phone, intending to document the arrest. The officer, on seeing the passenger reach into his jacket, quickly fired her Taser at the passenger to stop him from reaching for the unidentified item. The victim was unarmed.

Tasked with representing the passenger, I scoured Sixth Circuit cases to build an argument that the officer had used excessive force against the passenger, violating the passenger's Fourth Amendment rights. That’s when I discovered the ubiquity of non-precedential opinions—federal appellate decisions that bind only the parties, not future appellate panels or litigants. The challenging task of predicting the outcome of a complex fact pattern was even more frustrating because of the predominance of non-precedential, non-binding appellate decisions.

I realized that the overwhelming majority of decisions issued by federal appellate courts are non-precedential. In fact, as of 2016, these cases make up about 88 percent of all federal circuit court opinions. Since 2007, Federal Rule of Appellate Procedure 32.1 has required all circuit courts to permit briefs to cite non-precedential opinions, and litigants have done so.

Yet some precedential circuit decisions cite the circuit's own non-precedential opinions. And when federal circuit-court precedent cites its own circuit's non-binding decisions, the court blurs the line between binding and non-binding authority. This blurred line makes it difficult for litigants to predict a particular court’s application of its own non-precedential cases, especially in areas of law dependent on minute differences in the facts.

For example, in Fourth Amendment excessive-force law, outcomes are extremely fact-dependent. The precedential value of a case has a significant impact on the development of legal standards in any given circuit, and judges have the sole discretion in determining the precedential value of a decision, based in part on its legal or factual novelty. Examining Fourth Amendment excessive-force cases in the Court of Appeals for the Sixth Circuit, particularly Taser decisions, reveals that Sixth Circuit precedent frequently cites its own non-precedential opinions—and that has led to a divergence between legal standards applied by the same circuit to the same claims. 

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