Accountability: How Qualified Immunity Shields a Wide Range of Government Abuses, Arbitrarily Thwarts Civil Rights, and Fails to Fulfill Its Promises

By Jason Tiezzi, Robert McNamara, and Elyse Smith Pohl

Qualified immunity is perhaps America’s most controversial legal doctrine, erupting into the national consciousness during debate over police misconduct in 2020. Created by the U.S. Supreme Court four decades ago, the doctrine protects government officials from being sued for violating constitutional rights—unless victims can show those rights are “clearly established.” In practice, this often means pinpointing a published opinion from the Supreme Court or the federal appellate court in their jurisdiction finding the same conduct in the same circumstances unconstitutional.

The Supreme Court intends for qualified immunity to give government officials leeway to make reasonable mistakes—especially in tense or dangerous situations requiring quick thinking—without facing lengthy litigation, onerous discovery, or financial ruin. By insisting rights be clearly established to receive protection, the Court aims to put officials on notice of conduct to avoid before they face such consequences. Critics counter, however, that qualified immunity sets too high a bar for victims of abuse to seek justice and winds up protecting officials who intentionally, maliciously, or unreasonably violate the Constitution. They also argue the doctrine does not work as the Court intends.

This study adds new evidence to the record using the largest ever collection of federal appellate 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 circuit court opinions and answer key questions about cases where government defendants claim qualified immunity—what kinds of officials and conduct it protects, its impact on civil rights cases, and whether the doctrine is achieving its aims.

Key findings include:

In the federal circuit courts, qualified immunity appeals have become more common.

From 2010 through 2020, at least 5,526 cases before federal circuit courts raised qualified immunity on appeal, an average of about 500 cases a year.

And from the first half of our study period to the second, the annual average of qualified immunity appeals grew by 20%, even as civil appeals of all types fell.

Contrary to popular belief, qualified immunity is not just about police accused of excessive force. It shields a wide array of government officials and conduct.

While police were the most common defendants, fully half of appeals featured other types of government officials, either alongside or instead of police. Prison officials made up the next largest share, but in more than one in five of all appeals, or 21%, defendants were neither police

nor prison officials. These other officials included mayors and city managers, university and school officials, prosecutors and judges, and child protective services workers.

Excessive force was alleged in just 27% of appeals, followed by false arrest at 25%; some alleged both. But the third largest category, alleged in 18% of appeals, encompassed violations of First Amendment rights, including speech, association, and religious liberty.

Altogether, only 23% of appeals fit the popular conception of police accused of excessive force. In most First Amendment appeals, plaintiffs alleged government officials engaged in premeditated retaliation for protected speech or activity.

In a representative sample of 125 First Amendment appeals, 59% involved plaintiffs alleging premeditated abuse by government officials in retaliation for protected First Amendment activity. In nearly half of such cases, government workers alleged retaliation from their superiors, while in nearly a third, private citizens claimed they were targeted for retaliation by government officials.

Qualified immunity favors government defendants and makes it harder for plaintiffs to win—regardless of the merits of their claims.

In all, 59% of qualified immunity appeals were resolved solely in favor of government defendants, while 24% were resolved solely in favor of plaintiffs.

Qualified immunity disadvantages plaintiffs for arbitrary reasons, such as their circuit’s population or publication rate. These vary widely and influence the volume of clearly established law in a circuit—and therefore, the volume and variety of prior cases that plaintiffs can rely on to vindicate their rights.

Qualified immunity rulings often lack precision and clarity, again making it hard for plaintiffs to pinpoint the clearly established law required to win. In common with other legal experts, ours often could not untangle courts’ reasons for granting qualified immunity—if reasons were even offered.

When denied qualified immunity, government defendants have the right to file special immediate appeals—a right unavailable to plaintiffs. And they can do this multiple times in the same lawsuit. Such “interlocutory appeals” accounted for 96% of all defendant appeals.

These special appeals risk wearing down worthy plaintiffs with extended litigation. Their prevalence likely helps explain why the median duration of a qualified immunity lawsuit was three years and two months, 23% longer than the typical federal civil suit up on appeal.

Our findings provide more evidence that qualified immunity is a poor fit for achieving its goals.

Qualified immunity confuses instead of clarifies the rules government workers must follow to avoid burdensome litigation. If legal experts struggle to make sense of qualified immunity, the average government official—let alone one facing a life-or-death situation—cannot be expected to do so.

Qualified immunity fails to protect officials from the burdens of litigation, most notably potentially intrusive discovery. Nearly 70% of appeals came at the summary judgment stage of litigation, when courts typically have already allowed discovery.

Qualified immunity clogs up the courts with extra, often lengthy, appeals—some 2,000 interlocutory appeals that would not have existed without the special appeal rights given to government defendants.

These results suggest qualified immunity shields a much wider array of government officials and conduct than commonly thought. They also add to a growing body of research finding qualified immunity protects officials too much and our rights too little, all while failing to achieve its goals. This strengthens the argument for the Supreme Court or Congress to temper or—better yet—abolish the doctrine.

Whether through outright abolition or significant reform, courts and lawmakers can and should act to eliminate the unbounded impunity allowed by qualified immunity.

Arlington, VA: Institute for Justice, 2024. 6op.

Edited by Monika Florczak-Wątor

This collection examines case-based reasoning in constitutional adjudication; that is, how courts decide on constitutional cases by referring to their own prior case law and the case law of other national, foreign, and international courts. Argumentation based on judicial authority is now fundamental to the resolution of constitutional disputes. At the same time, it is the most common form of reasoning used by courts. This volume shows not only the strengths and weaknesses of such argumentation, but also its serious methodological shortcomings. The book is comparative in nature, with individual chapters examining similar problems that different courts have resolved in different ways. The research covers three types of courts; namely the civil law constitutional courts of Germany, Italy, Poland, Lithuania, and Hungary; the common law supreme courts of the United States, Canada, and Australia; and the European international courts represented by the European Court of Human Rights and the Court of Justice of the European Union. The authors are distinguished scholars from various countries who specialise in constitutional justice issues. This book will be of interest to legal theorists and practitioners, and will be especially insightful for constitutional court judges.

London; New York: Routledge, 2022. 293p.

Used book-may contain mark-up

By Alan M. Dershowtiz

Justice Oliver Wendell Holmes once observed that "hard cases make bad law." In Taking Liberties, Harvard law professor Alan Dershowitz writes for the layperson about the hard cases and thorny issues that come before our courts today. Should parents be compelled to testify against their own children? Can your employer force you to submit to a random drug test, even if you never have used drugs? Does the government have the right to find out what home videos you have rented? Should an otherwise qualified nominee to the Supreme Court be rejected solely on grounds of his ideology? Where is the line between vigilantism and self-defense? Does the jury have the final say on matters of truth? How should the victims of AIDS be treated in the workplace and in the schools? To scores of questions like these, each arising from the issues of an actual case or controversy, Dershowitz offers incisive and often surprising an- swers. Outspoken, thought-provoking, Taking Liberties is a book to savor and enjoy--a rare opportunity to watch one of America's foremost legal minds at work.

New York. Contemporary Books. 1988. 348p.

Edited And Translated By Carl Stephenson And Frederick George Marcham

FROM THE PREFACE: “ In organizing a book of this sort, and one that must be kept to a useful size for an elementary course, the most difficult task is that of selection. Possibly half the available space must be assigned to the great monuments that everybody considers essen- tial. But from all the other accumulated records of thirteen cen- turies just what shall be taken? Constantly faced with the embarrassing duty of excluding one document in order to include another, we have in general sought to be guided by the experience of the class-room--to govern our choice by the needs of the ordinary student. And above all else we have prized direct informa- tion concerning the organs of government….”.

London. Harper & Brothers Publishers. 1937. 933p. USED BOOK. MAY CONTAIN MARK-UP

By Christopher Slobogin and Sarah Brayne

This review focuses on government use of technology to observe, collect, or record potential criminal activity in real-time, as contrasted with “transaction surveillance” that involves government efforts to access already-existing records and exploit Big Data, topics that have been the focus of previous reviews (Brayne 2018, Ridgeway 2018). Even so limited, surveillance technologies come in many guises, including closed-circuit television, automated license plate and facial readers, aerial cameras, and GPS tracking. Also classifiable as surveillance technology are devices such as thermal and electromagnetic imagers that can “see” through walls and clothing. Finally, surveillance includes wiretapping and other forms of communication interception. The following discussion briefly examines the limited evidence we have about the prevalence and effectiveness of these technologies and then describes the law governing surveillance, focusing principally on constitutional doctrine, and how it might—and might not—limit use of these technologies in the future.

  Annual Review of Criminology,  2023. 6:219–40