As discussed in our Grading Methodology, the ability to overcome qualified immunity depends on the availability of statements of clearly established law (SOCELs) announced by federal appellate courts. In assembling the SOCELs necessary to support the Constitutional GPA’s research tool, we made a number of interesting findings and observations, some of which are outlined below. We start with the overall circuit-by-circuit and category-by-category SOCEL data.
Statements of Clearly Established Law by Court and Category
| Circuit | # Speech, Religion, or Assembly | # Search, Seizure, or Arrest | # Punishment, Penalties, or Fines | # Property Damage | # Discrimination | Total |
|---|---|---|---|---|---|---|
| 1 | 30 | 56 | 22 | 3 | 2 | 113 |
| 2 | 32 | 67 | 53 | 3 | 3 | 158 |
| 3 | 31 | 34 | 27 | 3 | 6 | 101 |
| 4 | 29 | 61 | 24 | 4 | 7 | 125 |
| 5 | 32 | 92 | 34 | 11 | 8 | 177 |
| 6 | 42 | 179 | 65 | 13 | 14 | 313 |
| 7 | 32 | 108 | 48 | 17 | 11 | 216 |
| 8 | 45 | 119 | 48 | 11 | 13 | 236 |
| 9 | 60 | 180 | 57 | 27 | 17 | 341 |
| 10 | 42 | 109 | 41 | 6 | 12 | 210 |
| 11 | 21 | 95 | 28 | 8 | 10 | 162 |
| DC | 17 | 24 | 16 | 6 | 3 | 66 |
| SCOTUS | 27 | 62 | 27 | 6 | 3 | 125 |
One important observation from this study is intuitive but appears to have gone unnoticed in most discussion of qualified immunity: The larger the federal circuit population, the easier it is to overcome qualified immunity. That’s because larger circuits have more cases; more cases result in more SOCELs; and more SOCELs provide more opportunities to overcome qualified immunity. Here’s what that looks like:
Ease of Overcoming Qualified Immunity by Circuit Court Population
This illustrates, in addition to the many other practical shortcomings of qualified immunity, the doctrine is largely arbitrary in its design. Not only are government officials unaware of the SOCELs in their jurisdiction (as demonstrated by the work of Prof. Joanna Schwartz), the number of SOCELs is largely an artifact of the population of the states and territories comprising any given federal circuit. So, the D.C. Circuit (population 689,545) has issued only 66 SOCELs, while the Ninth Circuit (population 67,050,034) has issued 341. More useful findings can be gleaned from these numbers. Perhaps considering the average SOCEL per case decided or per judge in a given circuit can highlight the courts and judges most eager or reluctant to grant qualified immunity. More research should be done on these issues. But the relative numbers do not bear on the purpose of this study or the outcome-determinative question in these cases: Is there a statement of clearly established law that can be used to overcome qualified immunity
In the aggregate, here’s how the circuits compare when it comes to SOCELs across all categories:
Ease of Overcoming Qualified Immunity by Circuit Court
And here is how they compare based on the five broad categories we have identified: