A first way qualified immunity disadvantages plaintiffs is by making the protection of their rights depend on arbitrary factors. Instead of being the same nationwide, Americans’ ability to vindicate our constitutional rights depends on the clearly established law in the federal circuit where we live. And the clearly established law in a circuit will depend on the types of appeals that happen to be brought in each circuit, as well as each circuit’s differing approaches to those appeals. However, as our data show, the ability to vindicate our rights also depends on how many people live in a circuit and how often a circuit publishes its opinions. While these factors have little or nothing to do with legal reasoning or constitutional jurisprudence, they nonetheless make it harder for some plaintiffs to identify clearly established law to advance their claims.
Across the opinions we studied, there is substantial—and statistically significant—regional variation in the rates at which circuits grant and deny qualified immunity. 1
Similar variation has been found by previous research, including a 2020 study of how local factors affect plaintiff success in civil rights cases, a 2020 study of qualified immunity appeals with police excessive force claims, and a 2021 study of more than 4,000 qualified immunity appeals. 2
Beyond the obvious factors driving circuit variation, such as types of cases appealed and differing responses to them, our data suggest two structural factors can affect how much clearly established law is found in a circuit.
As our data show, the ability to vindicate our rights also depends on how many people live in a circuit and how often a circuit publishes its opinions. While these factors have little or nothing to do with legal reasoning or constitutional jurisprudence, they nonetheless make it harder for some plaintiffs to identify clearly established law to advance their claims.
First, the larger the population a circuit represents, the more appeals are likely to come before it—and the more appeals before a circuit, the more opportunities it has to create clearly established law that plaintiffs can rely on. And, indeed, the largest circuit by population represented, the 9th, accounts for nearly nine times as many qualified immunity appeals as the smallest, the 1st. 3
In line with expectations, another Institute for Justice study found the 9th Circuit has substantially more clearly established law than the 1st Circuit. 4
Second, in most circuits, only published opinions create clearly established law. For this reason, differences in publication rates can translate into differences in the amount of clearly established law across circuits. Unsurprisingly then, higher-publishing circuits tend to have more clearly established law than lower-publishing ones, even after accounting for size. For example, the 7th and 8th Circuits, which publish more than three-quarters of their opinions, have over twice as many statements of clearly established law (216 and 236) as the similarly sized 3rd Circuit (101), which publishes only about a quarter of its opinions. 5
Because clearly established law is a circuit-by-circuit proposition, qualified immunity means the ability to vindicate our constitutional rights depends, to some extent, on where we live. This would be concerning enough if it were a function only of differences in the individual appeals that circuits consider and in the decisions reached in those appeals. When trivial factors such as a circuit’s size and publication practices appear to affect our rights, it shows how qualified immunity can lead to the arbitrary administration of justice. 6