Andrew Wimer
Andrew Wimer · February 7, 2024

ARLINGTON, Va.—The legal doctrine of qualified immunity is closely associated with police misconduct in many Americans’ minds. Yet the doctrine shields government officials of all stripes—and accused of all different kinds of constitutional violations—from civil rights lawsuits. The Institute for Justice (IJ), which litigates qualified immunity cases nationwide, today released a new study, Unaccountable, that analyzes thousands of federal appeals court decisions.

Unaccountable demonstrates how qualified immunity shields a wide range of government abuses, arbitrarily thwarts civil rights, and fails to fulfill its promises. The IJ study analyzed the largest-ever collection of qualified immunity cases—more than 5,500 federal appeals spanning 11 years. The results show that fewer than one-quarter of appeals concerned police officers accused of excessive force.

“Debates about qualified immunity often treat it as if it’s a rule about the police,” said Institute for Justice Deputy Litigation Director Bob McNamara, who co-authored the study. “But this study shows that qualified immunity is a rule about the entire Constitution—and one that prevents citizens from holding all sorts of government officials accountable for their actions.”

Most prior research into qualified immunity looks at how it applies to police officers, especially those accused of excessive force. But Unaccountable finds that a wide array of government officials claimed qualified immunity, including social workers, university deans, and mayors. And the allegations they faced were similarly diverse.

One of the most common allegations made in qualified immunity appeals is a violation of First Amendment rights. Such allegations appeared in nearly 1 in 5 appeals. In most of those appeals, government officials were accused of premediated retaliation against employees or private citizens for protected speech or other activity they didn’t like.

The case of IJ client Sylvia Gonzalez is emblematic. Sylvia was elected as the first Hispanic councilwoman in her Texas town, running on a platform calling for the firing of the mayor’s hand-picked city manager. After Sylvia took office and continued her efforts to fire the city manager, the mayor retaliated against her by having her arrested on bogus criminal charges. The district attorney quickly dropped the charges, and Sylvia sued over the violation of her First Amendment rights. A district court denied qualified immunity, but the 5th U.S. Circuit Court of Appeals overturned on a separate procedural issue. Sylvia’s case will be heard by the U.S. Supreme Court this spring, almost five years after her arrest.

Sylvia’s case highlights a second problem brought to light in Unaccountable: qualified immunity appeals often take years. The median duration of a qualified immunity lawsuit is three years and two months, 23% longer than a typical civil suit up on federal appeal. This burdens victims of government abuse and the courts. Unaccountable found 2,000 extra appeals before the federal courts that wouldn’t have existed without the special appeals rights qualified immunity gives to government defendants.

Qualified immunity disadvantages victims of government abuse in other ways. All of these issues lead to government defendants winning more than they lose. The circuit courts granted qualified immunity in 54% of appeals and denied it in just 26%. (In the remaining opinions, the courts handed down mixed opinions or did not rule on qualified immunity at all.) Those national figures mask wide variation across the circuits: While the 4th and 6th Circuits denied qualified immunity in 41% of cases, the 5th Circuit denied qualified immunity only 16% of the time.

This study adds evidence to prior research showing that qualified immunity fails to accomplish its proponents’ goals. Among other problems, it is far too complicated and confusing to give government officials fair notice of what rules to follow. And the doctrine appears to do little to thwart burdensome lawsuits, as Unaccountable found that qualified immunity appeals often take years and occur deep into litigation.

Unaccountable is part of IJ’s Project on Immunity and Accountability, which is dedicated to the principle that government officials are not above the law. The project seeks to ensure that if citizens must follow the law, then government officials must follow the Constitution. It is also one of the latest examples of IJ’s longstanding practice of representing victims of government retaliation.

Related Reports


Immunity and Accountability


The largest ever study of qualified immunity cases, Unaccountable finds the doctrine shields a wider array of officials and conduct than commonly thought while unacceptably burdening victims of government abuse and failing at its goals.