Prompted by several recent high-visibility killings by police officers, the U.S. civil rights enforcement regime is the subject of focused attention at the national, state, and local levels. Much of the discussion has centered on the barriers that prevent victims of civil rights violations and their families from obtaining relief through civil litigation. Of all of these barriers, qualified immunity—a powerful judicial doctrine that shields government officials, including those in law enforcement, from being held personally responsible for constitutional violations—has received the lion’s share of attention. Broadly, qualified immunity can bar a damages remedy in civil rights cases even when plaintiffs can establish that their constitutional rights were violated; if defendants can show that the law governing their conduct was not “clearly established,” they are entitled to immunity from suit even if their conduct violated the Constitution. For this reason, the immunity doctrine has been the subject of withering criticism among policymakers, advocates, and academics who argue that the protection comes at too great a cost to justice and accountability.
But while the academic literature criticizing immunity doctrine is both too broad and too deep to summarize in a sentence or even a paragraph, it is essential to note that, for many years, qualified immunity has not been subject to sufficient empirical scrutiny. Anecdotally, no empirical study is required to show that the U.S. Supreme Court has become increasingly solicitous of defendants claiming qualified immunity (notwithstanding some recent notable exceptions). But the court’s decisions are a small fraction of the work of the federal courts—to call them the tip of the iceberg, even, would exponentially overstate the extent to which they are representative of all federal court adjudication. It should come as no surprise, then, that the Supreme Court’s treatment of qualified immunity has had an overriding impact on perceptions of the importance of the defense, both among academics and practitioners (in other work, Joanna Schwartz and I have separately presented data confirming this perception and its role in how attorneys select cases).
Recent empirical work has undermined some of these assumptions. Schwartz’s pathbreaking study of district courts suggests that qualified immunity is rarely dispositive in Section 1983 litigation brought for alleged Fourth Amendment violations. And in earlier work studying Bivens litigation, I reported data along the same lines about the role of qualified immunity in litigated cases.
There is a disjunction, then, between empirical work regarding the role of qualified immunity in trial courts and the resolution of qualified immunity in the handful of cases that reach the Supreme Court. Missing from the discussion, and critical to understanding the role of qualified immunity in the resolution of litigated cases, is an empirical examination of appellate decision-making. My recent article “Qualified Immunity on Appeal: An Empirical Assessment” fills this significant gap in the literature by providing the most comprehensive study to date of the resolution of qualified immunity appeals in federal court.