An Ethical Obligation to Publish Opinions in Qualified Immunity Cases

• Author: Joseph R. Mattis
• Position: Georgetown University Law Center, J.D. expected 2023; University of Pennsylvania, B.A. 2017
• Pages: 901-915

An Ethical Obligation to Publish Opinions in

Qualified Immunity Cases

JOSEPH R. MATTIS*

INTRODUCTION

Qualified immunity has received an increasing amount of attention over the

past few years amidst rising calls for reform against misconduct by government

officials such as police officers.

1

See, e.g., Hailey Fuchs, Qualified Immunity Protection for Police Emerges as Flash Point Amid Protests,

N.Y. TIMES (Oct. 18, 2021), https://www.nytimes.com/2020/06/23/us/politics/qualified-immunity.html [https://

perma.cc/VH6T-LQ3M]; Scott Michelman & David Cole, A Step Toward Accountability in Policing, WALL

STREET JOURNAL (Sept. 10, 2020, 12:17 PM), https://www.wsj.com/articles/a-step-toward-accountability-in-

policing-11599754650 [https://perma.cc/KQ7T-7S3B].

Qualified immunity provides a shield against

damages liability for government officials who violate a person’s constitutional

rights as long as those rights were not clearly established at the time of the viola-

tion.

2

Many commentators have argued that the doctrine as it is currently applied

has allowed government officials to avoid accountability for grave acts of mis-

conduct.

3

See, e.g., Alexander A. Reinert, Unpacking a Decade of Appellate Decisions on Qualified Immunity,

LAWFARE (Mar. 18, 2021, 10:46 AM), https://www.lawfareblog.com/unpacking-decade-appellate-decisions-

qualified-immunity [https://perma.cc/L4DG-NXAJ].

Additionally, federal courts have exacting standards as to what consti-

tutes clearly established law, in some situations requiring a previously decided

case with nearly identical facts to clearly establish the law.

4

Recently, the founda-

tions of qualified immunity have come into question, raising questions about the

continued viability of the doctrine.

5

And the application of qualified immunity in

the real world has been shown to have little to no relation to the judicial construc-

tion of clearly established law, undermining the Supreme Court’s reasoning for

keeping the standard.

6

Further complicating this area of law is that federal courts of appeals vary in

their treatment of unpublished decisions in qualified immunity cases.

7

This has

* Georgetown University Law Center, J.D. expected 2023; University of Pennsylvania, B.A. 2017. © 2022,

Joseph R. Mattis.

1.

2. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

3.

4. Joanna C. Schwartz, Qualified Immunity’s Boldest Lie, 88 U. CHI. L. REV. 605, 613 (2020).

5. See generally William Baude, Is Qualified Immunity Unlawful?, 106 CAL. L. REV. 45 (2018) (arguing

that “[t]he modern doctrine of qualified immunity is inconsistent with conventional principles of law and con-

ventional federal statutes”).

6. See generally Schwartz, supra note 4 (arguing that in practice, appellate court decisions have little impact

on policies, procedures, and behaviors of police and police departments).

7. See, e.g., 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they may

be cited as persuasive authority.”); 1st Cir. Local R. 32.1.0 (noting that unpublished decisions are not binding

901