Qualified Immunity Favors Government Officials and Scuttles Valid Claims

In addition to shielding a wider range of officials and conduct than is commonly understood, qualified immunity may give government defendants the upper hand in civil rights litigation. In line with previous research, we found that qualified immunity grants outnumber denials at the appellate level, and government defendants prevail more often than plaintiffs. 1  Moreover, if plaintiffs lose in district court, they are especially unlikely to win on appeal. And even if plaintiffs win, this merely means they get one step closer to a trial—not necessarily a victory. Only 73 of the appeals we studied, or just 1.3%, gave plaintiffs a final, post-trial judgment in their favor. 2

One explanation could be that litigating against the government is hard, and this is certainly true. But our findings point to at least three ways in which qualified immunity may uniquely disadvantage plaintiffs—and do so in ways that prevent valid claims from being heard. First, qualified immunity makes the protection of rights depend not only on variation among federal circuits but also on their size and publication rates. Second, qualified immunity renders rights unclear, as even courts struggle to identify clearly established law on which successful claims can rest. Finally, qualified immunity awards special rights of appeal to government defendants, and they use these rights frequently. This gives them a huge advantage in litigation and significant leverage over plaintiffs. Combined, such challenges likely result in plaintiffs being turned away for reasons entirely unrelated to the merits of their claims or the culpability of defendants.