How long are cases involving qualified immunity appeals?
The median duration of a qualified immunity lawsuit—from the initial complaint filing to the appeal decision—was three years and two months. 1This is 23% longer than the typical civil suit up on federal appeal. 2
And as shown in Figure 5, many lawsuits had been open even longer when the appeal was decided: Nearly 29% had been open for more than four years, while 8% had been open for more than six.
Figure 5: Qualified Immunity Litigation Often Takes Years Seventy percent of qualified immunity lawsuits on appeal had been open longer than the median civil appeal
Note: Lawsuits can have multiple appeals and thus appear multiple times in this chart.
How many qualified immunity appeals are interlocutory appeals?
As detailed above, government defendants invoking qualified immunity have a special right to immediately appeal the denial of qualified immunity. These special appeals represented some 96% of all qualified immunity appeals filed by defendants (see Figure 6) and roughly a third of qualified immunity appeals overall—nearly 2,000 total.
Figure 6: Nearly All Defendant Appeals Are Interlocutory
When do qualified immunity appeals occur?
Appeals involving qualified immunity tend to occur early in lawsuits (see Figure 7). Twenty percent of the appeals we studied followed a ruling on a motion to dismiss filed by government defendants. These motions occur before the two sides in a lawsuit have exchanged information about their witnesses and evidence (i.e., before “discovery”). The point of these motions is to weed out any fatally flawed lawsuits (or individual claims). With qualified immunity, the fatal flaw that defendants argue at the motion to dismiss stage is that they simply cannot be sued because they are entitled to immunity.
Another 69% followed a ruling on a motion for summary judgment, which is a motion where one side argues that the facts are undisputed and the judge can rule without a trial to determine them; instead, this type of motion argues, the judge can simply apply the law to the known facts. Often, before deciding a summary judgment motion, judges permit some fact-finding through discovery if the two sides disagree about key facts, though this is typically less than in a full-blown trial.
Just 4% of qualified immunity appeals occurred following a trial. In other words, only 4% happened after plaintiffs were allowed to make their full case before the court or a jury.
Figure 7: Stage of Litigation at Time of Appeal Most qualified immunity appeals occur prior to trial
How often do plaintiffs in qualified immunity appeals have attorneys?
Plaintiffs represented themselves without aid of an attorney in roughly 20% of qualified immunity appeals. However, as Figure 8 shows, the rate of self-represented plaintiffs varied considerably by circuit: Only 6% of plaintiffs represented themselves in the 1st Circuit, compared to 33% in the 5th.
Figure 8: Plaintiffs Act as Their Own Attorneys at Different Rates Across Circuits
How often do courts publish opinions in qualified immunity appeals?
Circuit courts have discretion to publish, or not publish, their opinions. This matters because, in most circuits, only published opinions create binding precedent—that is, principles or rules, including clearly established law, that the court and the federal district courts under it are expected to follow in future cases. 3
Overall, 35% of the qualified immunity opinions we studied were published, significantly more than the 13% publication rate across all civil appeals. 4
Three circuits went even further: The 1st, 7th, and 8th all published more than 75% of their qualified immunity opinions. 5
On the other hand, the 11th Circuit published fewer than 20% of its qualified immunity opinions. (See Figure 9.)
Figure 9: Circuits Publish Qualified Immunity Opinions at Vastly Different Rates