In qualified immunity appeals, government defendants win more than they lose. The circuit courts granted qualified immunity in 54% of appeals and denied it in just 26%. (For ease of expression, we refer to circuit courts “granting” and “denying” qualified immunity even when they are technically affirming or reversing the lower court’s grant or denial.) In the remaining appeals, the courts handed down mixed opinions (i.e., opinions with grants and denials of qualified immunity for different defendants or on different claims) or did not rule on qualified immunity at all. (See Figure 10.)

Figure 10: Qualified Immunity Grants Outpace Denials

The federal appellate courts varied substantially in the rates at which they denied qualified immunity to government defendants, as Figure 11 shows. At opposite ends of the spectrum were the 5th Circuit, which denied qualified immunity in only 16% of appeals, and the 4th and 6th Circuits, which denied qualified immunity in 41%. Circuit courts similarly varied in their rates of granting qualified immunity. ¹   

Figure 11: Federal Circuits Deny Qualified Immunity at Different Rates

Note: Includes any denial of qualifed immunity to a defendant or on an individual claim.

In addition to qualified immunity grants and denials, we looked at who prevailed on appeal—plaintiffs or defendants. We did this because a grant or denial may not always indicate who ultimately prevailed. For example, a plaintiff could have won because the court denied qualified immunity to the government defendant or because the court ruled in their favor on other grounds, such as denying a defendant’s appeal for lack of jurisdiction. Here again, government defendants saw more success than plaintiffs: 59% of appeals were resolved solely in favor of defendants, while 24% were resolved solely in favor of plaintiffs. The remaining appeals ended in mixed decisions. (See Figure 12.)

Figure 12: Government Defendants Usually Prevail in Qualified Immunity Appeals

Appellate outcomes are even more tilted toward government defendants when we consider who was appealing from the district court, as Figure 13 illustrates. ²  When defendants won in district court, they nearly always won or achieved a mixed ruling on appeal; plaintiffs fully prevailed just 8% of the time. Plaintiffs had more success defending district court wins, fully prevailing 51% of the time, but government defendants still achieved a full or partial victory in nearly half of appeals after losing in the lower courts.

Figure 13: How District Court Decisions Translate Into Appellate Outcomes
When defendants win in district court, they rarely lose on appeal; when plaintiffs win in district court, the results are mixed