Making Rights Unclear

Not only do circuits differ in how they implement qualified immunity, leading to variation in the amount of clearly established law across the country, but their rulings often lack precision and clarity. This makes it hard for plaintiffs to identify relevant clearly established law and successfully argue that these precedents apply to their case. That, in turn, fuels the second challenge facing plaintiffs: Qualified immunity makes rights unclear.

Early in this project, we considered looking at how courts ruled on the two prongs of qualified immunity: (1) whether government defendants violated a constitutional right and (2) whether that right was clearly established. ¹  Courts can rule on both prongs—or they can skip the first and go straight to the second. If they determine the right was not clearly established, they do not have to consider whether defendants violated the right at all. However, the experienced qualified immunity attorneys who coded the opinions found courts’ rationales for granting qualified immunity were frequently ambiguous.

All told, our coders flagged as unclear roughly 1 in 4 opinions with qualified immunity grants, usually because courts had blurred their discussion of the two prongs. ²  Authors of other qualified immunity studies have reported similar problems:

• A 2009 study acknowledged that, “in many cases regarding the Fourth Amendment’s restrictions on searches and seizures, it was often unclear whether a court was resolving the substantive issue of whether a search was ‘reasonable’ or whether it was addressing whether the right was ‘clearly established.’” ³  
• A 2011 study examining qualified immunity outcomes similarly noted that “some courts essentially merged the two prongs, making it difficult or impossible to classify which prong was outcome-determinative.” ⁴  
• And a 2015 study concluded that “it is sometimes difficult to determine whether a court is resolving a claim on the constitutional merits or on qualified immunity grounds, especially for unpublished decisions.” ⁵

In some instances, our coders flagged opinions as unclear because courts did not state a rationale for granting qualified immunity at all—they simply affirmed a district court’s decision without discussion. Although courts were silent as to why they granted qualified immunity, these cases could be substantial.

For example, in Young v. Borders, police searching for a suspect mistakenly went to the wrong apartment in the middle of the night, banged on the door allegedly without identifying themselves as police, and shot to death an innocent occupant when he opened the door. The district court in the case granted the police defendants qualified immunity, and the man’s estate appealed. ⁶  The original 11th Circuit panel disposed of the appeal in a one-paragraph ruling, finding the defendants were entitled to qualified immunity. ⁷  Yet the facts of the case were sufficiently troubling that, when the appeal came up for en banc review, it triggered a 6,000-word dissent and a separate 1,000-word dissent, forcing the original panelists to write a 7,000-word concurrence better explaining their original decision. ⁸

That so many qualified immunity rulings appear so sloppy or sparse in their reasoning speaks to confusion among the courts about how to even implement the doctrine. Worse, the imprecise, unclear, or absent reasoning in these rulings directly impedes plaintiffs’ ability to press their claims and win, even when their claims are strong. It also makes it difficult to say what our constitutional rights even are.