The Controversy Over Qualified Immunity

Qualified immunity is perhaps America’s most controversial legal doctrine. Particularly in the wake of the national debate over police misconduct that erupted in 2020, commentators on all sides have focused on qualified immunity as it relates to police accountability and to the ability of law enforcement officers to navigate stressful, rapidly evolving situations. ¹

Despite this recent focus on law enforcement, the doctrine stems from a 1982 U.S. Supreme Court case that had nothing to do with policing. Instead, the case, Harlow v. Fitzgerald, was brought by a former executive branch employee who alleged that two Nixon administration aides conspired to get him fired in retaliation for his testimony to a congressional committee. The Supreme Court ruled that the aides were entitled to “qualified immunity,” which meant they could not be held liable unless they had violated a “clearly established” constitutional right. ²

In the four decades since, qualified immunity has barred lawsuits against federal, state, and local government officials unless plaintiffs can show that officials violated a clearly established constitutional right. And in practice the bar for being clearly established can be high: Courts often interpret clearly established strictly, meaning plaintiffs must show that either the Supreme Court or the federal appellate court in the same jurisdiction has already held that the same conduct in the same circumstances is unconstitutional. ³

Moreover, it is not enough to convince a district court judge that the right was clearly established. Qualified immunity gives government defendants a special right to immediately appeal to higher courts. In other types of civil cases (and in criminal ones), defendants can typically appeal only a final judgment against them. But government officials invoking qualified immunity can file what is known as an “interlocutory appeal” to immediately challenge the denial of qualified immunity at any stage of the litigation. ⁴  An official can ask a court to dismiss a case on qualified immunity grounds right after it is filed. If the court declines, the official can immediately file an interlocutory appeal instead of waiting for the case to be heard and decided on its merits. Later, the official can ask the court to throw the case out before trial because the evidence unearthed in discovery is insufficient to overcome qualified immunity. If the court declines, the official can file another of these special immediate appeals. And, of course, if the case goes to trial and the plaintiff wins, the official can file a final appeal after a judgment is entered. Qualified immunity therefore triples the appellate opportunities available to government officials accused of violating people’s constitutional rights—and, when used, multiplies the accompanying costs and delays. ⁵

In granting these substantial protections to government officials, the Supreme Court acknowledges the need to hold officials responsible for misconduct—but it also aims to shield them from “harassment, distraction, and liability when they perform their duties reasonably.” ⁶  The idea is to let some cases through the courthouse doors—those where rights were clearly established in prior cases, thus putting government officials on notice of conduct to avoid—while blocking others. Agents of the government, the argument goes, are often called upon to make difficult decisions, so they must have leeway to make reasonable mistakes without facing time-consuming litigation or financial ruin. ⁷  Making it too easy for such claims to proceed could chill officials from performing their duties or make it harder to recruit officials in the first place. ⁸  

Unsurprisingly, the doctrine has drawn widespread criticism, much of it focused on the clearly established test. ⁹  Critics argue that the test unfairly disadvantages victims of alleged government misconduct both now and in the future. First, when applied to stop a lawsuit because the right at issue was not clearly established by a prior case, qualified immunity can protect even intentional, malicious, or unreasonable conduct that happens to have not come up in litigation before—or that has only arisen in a different federal circuit. ¹⁰  The Supreme Court itself has occasionally noted that sufficiently egregious misbehavior might warrant liability even in the absence of a ruling clearly establishing the existence of the right that was violated. Indeed, in 2002, it created an “obviousness” exception for such cases. ¹¹  Yet the Court has rarely used this exception—just twice in the 24 qualified immunity cases that came before it between 2002 and 2020. ¹²  Moreover, the Court has repeatedly warned lower courts “not to define clearly established law at a high level of generality,” which would, in effect, make it easier for plaintiffs to find cases to meet the test. ¹³  

Second, critics argue the clearly established test not only burdens current plaintiffs but also disadvantages future plaintiffs, particularly in the wake of the Supreme Court’s 2009 decision in Pearson v. Callahan. ¹⁴  That ruling gave courts facing a claim for qualified immunity a choice: They can, as they were required to do pre-Pearson, decide whether the government official violated a constitutional right and, if so, determine whether that right was clearly established. Or—if they would rather—they can simply determine whether any case clearly establishes the right at issue without ever deciding whether the official violated it at all. ¹⁵  And much of the available evidence suggests courts are more likely to avoid addressing the underlying constitutional question in qualified immunity cases when they are not required to do so. ¹⁶  The likely result is fewer cases clearly establishing what the Constitution requires—and thus fewer cases future plaintiffs can rely on. ¹⁷  

Critics also decry qualified immunity’s practical justifications. For example, to the extent the doctrine is meant to protect government officials from ruinous financial liability, it does not appear necessary.  Indeed, evidence suggests that officials who are ordered to pay damages—including those who are denied qualified immunity—hardly ever pay out of their own pockets. Instead, damages awards are almost uniformly paid by the government. ¹⁸  If qualified immunity is meant to protect individual government officials from financial ruin, it appears to be protecting them from a danger that does not exist.

So too with another common justification for qualified immunity: the need to ensure that officials know what conduct is and is not constitutionally permissible before being sued or held liable, lest they be chilled from performing their duties. ¹⁹  As a rule, the only sources of clearly established constitutional rights that count for qualified immunity purposes are the published opinions of federal appellate courts, and there is little evidence that officials at any level of government assiduously follow the doings of their regional circuit court. ²⁰  Quite the contrary: Research on police training suggests that officers receive little or no instruction on the clearly established law in their jurisdictions. ²¹  There is little reason to assume that other government officials like tax assessors or code enforcement officers receive any more.

Amid the ongoing debate over qualified immunity, this study adds new evidence to the record by creating the largest and most comprehensive collection of federal qualified immunity appeals yet compiled. ²² Importantly, unlike most earlier studies, ours is not limited to claims against law enforcement defendants or those alleging excessive force. ²³  Such cases are arguably more likely to involve the kind of difficult, often split-second, decisions that concern the Supreme Court, yet there is nothing in the doctrine to limit it to such cases. ²⁴  This means qualified immunity applies far more broadly—and our data help to show just how far. Our extensive and detailed dataset also provides new evidence about how qualified immunity plays out in the day-to-day work of the federal courts of appeals. Our findings suggest the doctrine arbitrarily thwarts valid civil rights claims and fails to achieve the Court’s goals—all while adding years to litigation and clogging circuit court dockets.