Results: How many qualified immunity cases are there?
From 2010 through 2020, at least 5,526 cases before federal appellate courts raised qualified immunity on appeal, an average of about 500 cases a year. This does not include cases decided by state appellate courts, nor does it include non-appellate cases involving qualified immunity decided by federal district courts or state trial courts. In addition, 5,526 is likely an undercount because our algorithms for predicting whether an appeal involved qualified immunity, while highly accurate, are slightly biased in favor of underreporting. 1
The federal appellate courts varied in the number of qualified immunity appeals they decided over the study period. The 9th Circuit decided the most—and nearly nine times as many as the 1st Circuit, which decided the fewest (see Figure 1). We also saw variation in the district courts where appeals originated. Most notably, the Eastern District of Michigan accounted for more than 300 of the 6th Circuit appeals we studied, or about 1 in 20 of all appeals. Appendix C breaks out data about qualified immunity appeals for the circuit courts. 2
Figure 1: Qualified Immunity Appeals by Federal Circuit, 2010–2020
Qualified immunity appeals in the circuit courts have increased over time, as shown in Figure 2. In the first half of our study period (2010 through 2015), the courts decided an average of 458 qualified immunity appeals a year. But in the second half (2016 through 2020), that figure jumped to 555, an increase of roughly 20%. Over that same timeframe, the total number of civil appeals in the circuit courts dropped by 10%, indicating that qualified immunity appeals are growing in both absolute and comparative terms. 3
Figure 2: Qualified Immunity Appeals Are Growing More Common
Circuit courts decided 20% more appeals after 2015
Driving this growth was an increase in appeals with allegations of excessive force against government defendants, typically police. From the first half of our study period to the second, excessive force appeals increased by over 50%. 4 Meanwhile, appeals with other alleged constitutional violations also increased, although by a more modest 12%. 5