A third way qualified immunity gives government defendants the upper hand is by granting them special rights to file interlocutory appeals immediately after a district court denies qualified immunity. These interim appeals can be filed at any stage of litigation—or even at multiple stages—and they effectively give defendants an extra chance (or two or three) to press a claim of qualified immunity before different judges. Our data show these appeals are common and suggest they are a factor in drawing out litigation, often by years. Thus, these appeals run the risk of wearing down worthy plaintiffs with extended litigation.
Interlocutory appeals make up a substantial portion of qualified immunity litigation: more than a third—nearly 2,000 appeals—from 2010 through 2020. 1
And they appear to be growing: Our data show that interlocutory appeals, along with qualified immunity appeals generally, increased over our study period. 2
Clearly, government defendants do not hesitate to take advantage of these special rights. Indeed, interlocutory appeals represented 96% of all appeals filed by defendants.
The prevalence of interlocutory appeals may explain why the median duration of a qualified immunity lawsuit in our dataset was three years and two months, 23% longer than the typical civil suit up on federal appeal. Prior research also suggests that interlocutory appeals contribute to lawsuit length, averaging more than a year—441 days—from filing to resolution. 3
Our data show interlocutory appeals are common and suggest they are a factor in drawing out litigation, often by years. Thus, they run the risk of wearing down worthy plaintiffs with extended litigation.
To illustrate how this special right of appeal can be used to draw out litigation, consider appeals filed at the motion to dismiss stage, which make up a fifth of all interlocutory appeals. Motions to dismiss are supposed to be hard for the government to win, as they are intended to weed out only the weakest cases. Normally, if a district court judges a case strong enough to survive such a motion, it moves forward to summary judgment or trial. But if a district court judges a case strong enough to continue by denying a request for qualified immunity, government defendants can immediately file an interlocutory appeal and hope a three-judge appellate panel will decide the question differently. If they do not, this special appeal did nothing more than extend the litigation.
Not only can government defendants immediately appeal denials of qualified immunity, but they can also do so multiple times in the same lawsuit. This allows them to relitigate qualified immunity over and over. The plight of one Nevada family shows how this can play out. After a government administrator stole from their deceased father, two men filed a federal lawsuit in 2007 to hold the administrator accountable. 4
They did not get a final judgment entered in their favor until 2019—12 years later. It took more than a decade for the family to get justice because they had to run a gauntlet of procedural delays due to qualified immunity:
After the family filed suit, the government administrator moved to dismiss the lawsuit based on qualified immunity. 5
Although the district court denied the motion, the defendant’s subsequent interlocutory appeal put the lawsuit on hold for two and a half years until the 9th Circuit affirmed the denial in 2011. 6
In late 2012, the defendant filed a motion for summary judgment, another pretrial motion, invoking qualified immunity. This, too, was denied. 7
Once again, the defendant filed an interlocutory appeal, and once again the 9th Circuit affirmed the denial, though not until 2015. 8
The lawsuit finally made it to trial in 2015, eight years after it started, and a jury awarded the plaintiffs $2.1 million. 9
But they still were not done with qualified immunity. The defendant appealed the final verdict—raising qualified immunity a third time—and received yet another denial in 2018. 10
Final judgment in favor of the plaintiffs was finally satisfied in May 2019, almost exactly 12 years after the lawsuit began. 11
Although the number was excessive, the defendant in that case at least raised permissible issues in his interlocutory appeals. This is not always the case. In fact, we found evidence that government defendants may use interlocutory appeals strategically, filing meritless appeals simply to drag out litigation: 11% of interlocutory appeals were dismissed because they failed to raise an issue within the scope of the appellate courts’ authority. Others have raised concerns that defendants might abuse the advantages provided by interlocutory appeals. For example, civil rights attorneys interviewed for a 2020 study on qualified immunity described how interlocutory appeals were used to “wear . . . out” and “beat down the plaintiffs’ counsel.” 12
Not only can government defendants immediately appeal denials of qualified immunity, but they can also do so multiple times in the same lawsuit. This allows them to relitigate qualified immunity over and over.
But even when defendants’ failure to raise an appealable issue is without malice, the impact on plaintiffs is the same: higher costs and delayed litigation, which may force them to settle or even drop their case. Yet when plaintiffs stick it out and win these appeals, all this means is that they can continue their lawsuit—and their fight against qualified immunity may not even be over.
Combined, these factors—the protection of rights turning on arbitrary factors, rights made unclear, and special advantages for government defendants—likely result in plaintiffs being turned away for reasons entirely unrelated to the merits of their claims or the culpability of defendants. Although the Supreme Court insisted that, in creating the doctrine, “we provide no license to lawless conduct,” in practice qualified immunity can arbitrarily shield officials from accountability while forcing victorious plaintiffs to endure years of litigation and vexatious appeals before receiving justice. 13