Unpacking a Decade of Appellate Decisions on Qualified Immunity

Prompted by several recent high-visibility killings by police officers, the U.S. civil rights enforcement regime is the subject of focused attention at the national, state, and local levels. Much of the discussion has centered on the barriers that prevent victims of civil rights violations and their families from obtaining relief through civil litigation. Of all of these barriers, qualified immunity—a powerful judicial doctrine that shields government officials, including those in law enforcement, from being held personally responsible for constitutional violations—has received the lion’s share of attention. Broadly, qualified immunity can bar a damages remedy in civil rights cases even when plaintiffs can establish that their constitutional rights were violated; if defendants can show that the law governing their conduct was not “clearly established,” they are entitled to immunity from suit even if their conduct violated the Constitution. For this reason, the immunity doctrine has been the subject of withering criticism among policymakers, advocates, and academics who argue that the protection comes at too great a cost to justice and accountability.

But while the academic literature criticizing immunity doctrine is both too broad and too deep to summarize in a sentence or even a paragraph, it is essential to note that, for many years, qualified immunity has not been subject to sufficient empirical scrutiny. Anecdotally, no empirical study is required to show that the U.S. Supreme Court has become increasingly solicitous of defendants claiming qualified immunity (notwithstanding some recent notable exceptions). But the court’s decisions are a small fraction of the work of the federal courts—to call them the tip of the iceberg, even, would exponentially overstate the extent to which they are representative of all federal court adjudication. It should come as no surprise, then, that the Supreme Court’s treatment of qualified immunity has had an overriding impact on perceptions of the importance of the defense, both among academics and practitioners (in other work, Joanna Schwartz and I have separately presented data confirming this perception and its role in how attorneys select cases).

Recent empirical work has undermined some of these assumptions. Schwartz’s pathbreaking study of district courts suggests that qualified immunity is rarely dispositive in Section 1983 litigation brought for alleged Fourth Amendment violations. And in earlier work studying Bivens litigation, I reported data along the same lines about the role of qualified immunity in litigated cases. 

There is a disjunction, then, between empirical work regarding the role of qualified immunity in trial courts and the resolution of qualified immunity in the handful of cases that reach the Supreme Court. Missing from the discussion, and critical to understanding the role of qualified immunity in the resolution of litigated cases, is an empirical examination of appellate decision-making. My recent article “Qualified Immunity on Appeal: An Empirical Assessment” fills this significant gap in the literature by providing the most comprehensive study to date of the resolution of qualified immunity appeals in federal court. 

Prior studies, while informative, were limited in scope and focused on different questions. Some studies have covered only published decisions—a significant problem, as my data show that there is a substantial difference in the outcomes of published and unpublished decisions, confirming that published decisions are not a representative sample. Other studies cover only a random selection of decisions issued in a given time frame. And no prior study had evaluated more than 850 total opinions. Moreover, none of the prior studies was designed to evaluate the basic, but central, question addressed in my analysis here: who succeeds on qualified immunity arguments in the courts of appeals, and what variables are correlated with success. And none of the prior studies provided the detailed certiorari-stage analysis that I provide in the paper, following each appellate decision to determine whether any party sought cert, whether it was granted, and what the outcome was in the Supreme Court. (Reuters published a qualified immunity study that included cert-related data, but it focused only on about 120 petitions involving police excessive force, and its data analysis was sparse.)

By contrast, “Qualified Immunity on Appeal” analyzes the results of 4,054 decisions in the federal courts of appeals, encompassing every appellate opinion issued regarding qualified immunity in the years 2004-2008 and 2010-2015. I omitted 2009 so that I could better evaluate whether the Supreme Court’s 2009 decision in Pearson v. Callahan—a ruling that gave lower courts the freedom to resolve qualified immunity without deciding the predicate question of whether a defendant’s conduct even violated the Constitution—had any impact on appellate outcomes. The results, provided in summary form here, provide several insights that have not been addressed in past empirical work and that should speak to scholars, advocates and policymakers alike. 

Findings

Appellate Court Analysis 

Even if scholars have helped to show that qualified immunity plays a limited role in the resolution of litigated cases in federal district court, “Qualified Immunity on Appeal” shows that when the defense is deployed, it has a significant impact. Over the course of the study period, defendants prevailed on appeal in cases involving qualified immunity much more than plaintiffs—about twice as often, in fact. Relatedly, key to defendants’ overall success in the courts of appeals was asymmetric treatment of district court decisions granting or denying qualified immunity. This dynamic is referred to as “asymmetric review”—district court decisions denying qualified immunity were reversed far more often than decisions granting qualified immunity. In other words, appellate courts have tended to grant qualified immunity in cases where district courts had previously denied it. Figure 1 illustrates this dynamic, in which district court decisions denying q

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