Qualified Immunity Is a Poor Fit for Achieving Its Goals
The Supreme Court created qualified immunity to achieve two goals: (1) preserve government officials’ ability to perform their duties without fear, especially in split-second situations, and (2) protect them from harassment, distraction, and the threat of financial harm from a flood of specious lawsuits. Unfortunately, it is not at all clear—from our results and others’—that qualified immunity achieves these aims, or that the doctrine is necessary at all. And in addition to being a poor fit for achieving its goals, qualified immunity clogs up the courts with time-wasting appeals.
On the first goal, the problem is not just that qualified immunity is overly broad, protecting conduct far outside tough decisions in the heat of the moment. It is also that the clearly established standard fails at its core purpose: ensuring government officials have clear notice about what constitutes unconstitutional conduct before they are held accountable for it. As described above, the experienced qualified immunity attorneys who hand coded opinions for this study frequently struggled to untangle the reasoning behind qualified immunity grants, a problem encountered by other legal researchers. Even judges have acknowledged the difficulty of applying qualified immunity: Judge Charles R. Wilson of the 11th Circuit went so far as to say that “wading through the doctrine of qualified immunity is one of the most morally and conceptually challenging tasks federal appellate court judges routinely face.” 1
If legal experts struggle to make sense of qualified immunity, it is unreasonable to expect the average government official to comprehend all the clearly established law in their circuit—let alone apply it in tense, rapidly evolving situations. 2
As one district judge put it, “It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: ‘Are the facts here anything like the facts in York v. City of Las Cruces?’” 3
As noted earlier, previous research has shown that police are not trained on the specifics of clearly established law, but even if they were, the doctrine is so complex that such training is unlikely to be effective. 4
If legal experts struggle to make sense of qualified immunity, it is unreasonable to expect the average government official to comprehend all the clearly established law in their circuit—let alone apply it in tense, rapidly evolving situations.
As for the second goal, protecting government officials from the burdens of possibly meritless litigation, it is again unclear that qualified immunity is necessary, let alone a good fit, for the purpose. First, as noted earlier, prior research has found that government officials are nearly always indemnified by their employers, so even those found to have violated citizens’ rights rarely face financial penalties.
Second, as qualified immunity plays out in the courts, it often does not protect officials from the practical burdens of litigation, most notably discovery, nor is it well designed to do so. In fact, the appeals in our dataset more commonly came at the summary judgment stage of litigation—when courts typically have already allowed discovery—than at the motion to dismiss stage. The gap is significant, with nearly 70% of appeals following a ruling on summary judgment compared to just 20% following a motion to dismiss, a finding similar to prior research on district court dockets. 5
To be sure, our data are not granular enough to tell how often discovery took place prior to the appeals in our dataset, but there is likely a sizable share of such cases. 6
In cases like these, qualified immunity is not protecting officials from the burdens of discovery, let alone quickly disposing of meritless claims.
Despite the Supreme Court’s hope of cutting off litigation early, it makes sense that qualified immunity would be more of a factor later in litigation. This is because qualified immunity often arises in complicated situations—including those involving split-second decisions—when factual development is especially important for deciding a case, making it difficult to resolve before discovery or trial. Anecdotally, our coders observed appellate courts concluding exactly that when denying qualified immunity at the summary judgment stage—disputed facts required a trial. The fact-intensive nature of a qualified immunity inquiry may also help explain why we found that defendants have less success facing excessive force than First Amendment allegations, as excessive force claims may be more likely to involve disputed facts and situations in which the only witnesses are the plaintiffs and the defendants, making these cases ill suited for quick resolution. 7
Third, courts have other tools for weeding out non-viable claims. 8
One is basic pleading standards. For a civil rights lawsuit, a plaintiff must allege concrete facts that, if true, could plausibly give rise to a constitutional violation. If they fail to do so, then the case is dismissed—no qualified immunity necessary.
Another tool is protection afforded by the Constitution to government officials who make reasonable mistakes in difficult situations. For example, under the Fourth Amendment, only unreasonable searches, seizures, and force are prohibited. 9
This reasonableness standard has been interpreted to give government officials—especially those facing difficult and dangerous situations—leeway in their decisions. As stated by the Supreme Court in a prominent excessive force case: “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” 10
If there is no constitutional violation, then the lawsuit can be disposed of on this ground without invoking qualified immunity.
And in fact, among the appeals in our dataset where government defendants did not receive qualified immunity but nevertheless prevailed, our coders observed that appellate courts often relied on such grounds to dispose of meritless lawsuits. 11
Instead of ruling on qualified immunity, they often ruled that no constitutional violation had occurred or that the plaintiffs’ initial lawsuit filings were deficient for reasons unrelated to qualified immunity. This is consistent with earlier research showing that when defendants raised qualified immunity in pretrial motions in district courts, those courts were more likely to grant the motions on grounds other than qualified immunity. 12
Not only does qualified immunity fail to achieve its goals, but it also brings a substantial downside: The special right of interlocutory appeal clogs the circuit courts with extra appeals. Above, we described how interlocutory appeals can lengthen litigation and wear down plaintiffs, even if they have strong cases. Here, we note how it can create a burden for appellate courts—one that is becoming more common, according to our data. Without the special treatment given to qualified immunity defendants, the 2,000 interlocutory appeals in our dataset would not exist. For good reason, these special immediate appeals are supposed to be a “narrow exception” to the normal order of business. 13
Yet, as we found, government defendants in qualified immunity lawsuits use them frequently, adding an estimated cumulative total of over 2,300 years to qualified immunity litigation over our study period. 14