Introduction

Sylvia Gonzalez spent a day in jail because her political opponents wanted to teach the then-72-year-old grandmother and city councilwoman a lesson. The mayor and police chief of Castle Hills, Texas, used trumped-up charges to jail Sylvia in retaliation for speech critical of another local government official. The charges were later dropped. ¹

Allan Minnerath saw his company’s trucks and drivers detained for hours by an overzealous county road engineer in Mahnomen County, Minnesota. The official, who opposed a state contract awarded to Allan’s firm, decided to do something about it: He changed the weight limits on roads he knew the trucks would travel, then played traffic cop by personally stopping the now-overweight vehicles. ²

Shaniz West had her Caldwell, Idaho, home destroyed by police after she gave them permission to search the residence for her fugitive ex-boyfriend. Rather than use the keys she gave them, police shot tear gas grenades into the home, rendering it uninhabitable and ruining all of Shaniz’s and her children’s belongings. ³

Sylvia, Allan, and Shaniz are Institute for Justice clients whose constitutional rights were violated by government officials, and all three sought justice by suing those government officials. But Sylvia, Allan, and Shaniz have something else in common: The government officials who violated their rights invoked a contentious court-made doctrine known as qualified immunity to try to escape the lawsuits. ⁴  Bringing a lawsuit is the only way for Americans to directly hold government officials accountable and enforce our rights, but qualified immunity, along with similar doctrines, has made it harder and harder to do. ⁵

Created by the U.S. Supreme Court in 1982, qualified immunity is a special protection for government officials. ⁶  Under the doctrine, officials cannot be sued or held civilly liable for violating a person’s constitutional rights unless the person can identify a previous decision from the Supreme Court or the federal appellate court in the same jurisdiction “clearly establishing” that such conduct is unconstitutional. And this protection applies even if officials intentionally, maliciously, or unreasonably violated the Constitution. Indeed, courts have granted qualified immunity to officials accused of all sorts of egregious conduct. This includes Denver police officers who threatened to arrest a man for recording them, then illegally searched his device for the video. ⁷  It also includes Texas Medical Board investigators who conducted a warrantless search of a doctor’s office for patients’ medical records. ⁸

This immunity does not exist in civil cases between private parties. ⁹  If you sue someone for injuring you in a car crash, they must go to court to argue that they are not responsible. With qualified immunity, government officials go to court to argue that they cannot be sued—even if they did, in fact, violate your constitutional rights.

This study describes how qualified immunity works in federal appellate courts using the largest ever collection of cases, covering the 11-year period from 2010 through 2020. It is the first to use cutting-edge automated techniques to parse thousands of federal appellate opinions and answer key questions about cases where government defendants claim qualified immunity: how common they are, who wins them, how long they take, and what kinds of government officials and alleged constitutional violations they involve. The answers offer new evidence about the kinds of officials and conduct qualified immunity protects, its impact on civil rights cases, and whether the doctrine is achieving its aims.