Constitutional Law

Qualified immunity shield may depend on size and publication rate of federal appeals court, new report says

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Robert McNamara, deputy director of litigation at the Institute for Justice, told the ABA Journal that a new study is “path-breaking” because it examines a larger set of cases and a larger number of attributes about those cases than any previous study. Image from Shutterstock.

Qualified immunity “protects officials too much and our rights too little,” according to a new report by the Institute for Justice based on an analysis of more than 5,500 federal appeals decisions over an 11-year period.

The report, published Wednesday, called qualified immunity “perhaps America’s most controversial legal doctrine.” Created by the U.S. Supreme Court in 1982, qualified immunity protects government officials from lawsuits alleging constitutional law violations, unless plaintiffs can show that the rights are clearly established.

Fifty-nine percent of the qualified immunity appeals were resolved solely in favor of government defendants, according to the report, which is based on an automated analysis of 5,526 federal appeals decisions from 2010 through 2020. Only 24% of the appeals were resolved solely in favor of plaintiffs.

Robert McNamara, deputy director of litigation at the Institute for Justice, a nonprofit public interest law firm, told the ABA Journal that the study is “path-breaking” because it examines a larger set of cases and a larger number of attributes about those cases than any previous study.

“We did this study because nobody else ever had,” McNamara says.

One study finding is that plaintiffs are disadvantaged “for arbitrary reasons,” such as their circuit’s population or the rate of published versus unpublished opinions. Those factors can affect the volume of clearly established law.

“Because clearly established law is a circuit-by-circuit proposition, qualified immunity means the ability to vindicate our constitutional rights depends, to some extent, on where we live,” the report said.

The 9th U.S. Circuit Court of Appeals at San Francisco, for example, is the largest federal appeals circuit by population, while the 1st Circuit at Boston is the smallest. As a result, the 9th Circuit decided nearly nine times more qualified immunity appeals than the 1st Circuit.

Providing another example, the report said two appeals courts—the 7th Circuit at Chicago and the 8th Circuit at St. Louis—publish more than three-quarters of their opinions. The similarly sized 3rd Circuit at Philadelphia, on the other hand, publishes only about a quarter of its opinions. As a result, the 7th and 8th Circuits had more than twice as many statements of established law as the 3rd Circuit.

Another problem for plaintiffs is “imprecise, unclear or absent reasoning” by federal appeals courts, making it difficult to win cases and difficult to say what rights are clearly established. Experienced lawyers who coded the qualified immunity opinions flagged about one out of four as unclear. Often, the ambiguity stemmed from opinions that blurred the two prongs of qualified immunity: whether the government violated a constitutional right and whether that right was clearly established.

Another study finding that may surprise many people is that “only 23% of the cases were cases that were just about a police officer being sued for excessive force,” McNamara says.

It’s true that police were most often defendants, followed by prison officials. But in 21% of the cases, neither a police officer nor a prison official was a defendant. Other officials targeted include mayors, city managers, university and school officials, prosecutors, judges and child protective services workers.

It is also true that most cases involved allegations of excessive force by any defendant—27% in all. Next most frequent were allegations of false arrest, made in 25% of the cases, and First Amendment violations, alleged in 18% of the cases. That is not the image portrayed in the popular media, McNamara says.

“A lot of the public debate about qualified immunity focuses not just on police officers but on the difficulty police officers have in making split-second decisions,” McNamara says. “The common image of a qualified immunity case is a police officer in a dark alley having to make a quick decision.”

In reality, he says, qualified immunity cases also involve First Amendment claims, “and most of the First Amendment claims we are looking at are actually premeditated, a long-planned retaliation against people for their speech.”

“The big takeaway from this study,” McNamara says, “is that qualified immunity is tearing down a lot more constitutional claims than I think anyone recognizes or acknowledges.”

The report suggested ways to make it easier for plaintiffs to vindicate their rights. States could create their own causes of action to hold government officials accountable and could ban qualified immunity as a potential defense in civil rights suits. Colorado has already banned the defense for police officers, while New Mexico has banned it for all government workers.

And the Supreme Court could change qualified immunity doctrine to allow consideration of precedent in other federal appellate and state courts, along with government guidance.

“Better yet,” the report said, “the Supreme Court could eliminate the clearly established standard and instead allow courts to evaluate claims based on whether a government official was acting in good faith.”

The Institute for Justice is representing former Castle Hills, Texas, city council member Sylvia Gonzalez in a qualified immunity case before the Supreme Court.

She alleges that her arrest for alleged tampering with a public document was retaliation for criticizing the city manager. Her alleged wrongdoing: Placing her citizen petition seeking the city manager’s ouster in her binder instead of leaving it with the mayor. At issue is what kind of evidence is needed to defeat a qualified immunity claim by government officials.

The report is called Unaccountable: How Qualified Immunity Shields a Wide Range of Government Abuses, Arbitrarily Thwarts Civil Rights, and Fails to Fulfill Its Promises. A Feb. 7 press release is here.

The report authors are McNamara; Jason Tiezzi, a data scientist; and Elyse Smith Pohl, a legal research and policy attorney at the Institute for Justice.

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