Asymmetric review of qualified immunity appeals

• Published date: 01 March 2023
• Author: Alexander A. Reinert
• Date: 01 March 2023
• DOI: http://doi.org/10.1111/jels.12339

ORIGINAL ARTICLE

Asymmetric review of qualified immunity appeals

Alexander A. Reinert

Max Freund Professor of Litigation and Advocacy, Benjamin N. Cardozo School of Law, New York, New

York, USA

Correspondence

Alexander A. Reinert, Max Freund Professor of Litigation and Advocacy, Benjamin N. Cardozo School of

Law, New York, NY 10003, USA.

Email: areinert@yu.edu

Abstract

This article presents results from the most comprehensive study to date of the resolu-

tion of qualified immunity in the federal courts of appeals and the US Supreme Court.

By analyzing more than 4000 appellate decisions issued between 2004 and 2015, this

study provides novel insights into how courts of appeals resolve arguments for quali-

fied immunity. Moreover, by conducting an unprecedented analysis of certiorari prac-

tice, this study reveals how the US Supreme Court has exercised its discretionary

jurisdiction in the area of qualified immunity. The data presented here have signifi-

cant implications for civil rights enforcement and the uniformity of federal law. They

show that qualified immunity, when deployed, often bars relief for plaintiffs. More-

over, they show that courts of appeals reverse decisions to deny qualified immunity

far more often than they reverse decisions to grant qualified immunity, and that this

asymmetric review is correlated with traditional indicators of judicial ideology,

among other variables. Significantly, the data also suggest that the asymmetric review

that characterizes appellate decisions is also present in the Supreme Court’s certiorari

practice.

KEYWORDS

civil rights, judicial ideology, qualified immunity

INTRODUCTION

Qualified immunity is a powerful doctrine that can bar a damages remedy in civil

rights cases evenwhere a plaintiff can establish that their constitutional rights were

violated. An affirmative defense that arises principally in suits brought under

[Correction added on 17 January 2023, after first online publication: Cross reference citations were corrected in

this version.]

DOI: 10.1111/jels.12339

©2022 Cornell Law School and Wiley Periodicals LLC.

4J Empir Leg Stud. 2023;20:4–85.

wileyonlinelibrary.com/journal/jels

42 U.S.C. § 1983,

1

qualified immunity applies where defendants can show that the

law governingtheir conduct was not “clearlyestablished”or that they acted reason-

ably in light of clearly established law.

2

Academic literature, mostly critical, has

focused on many different aspects of the defense.

3

In the backdrop, however, is the

longstanding assumption that qualified immunity has a significant impact on the

resolutionof litigated cases.

4

For many years, thatassumption was not subjected to

empirical scrutiny (Schwartz,2017, p. 8) and had been shared notjust by academics

but also by civil rights practitioners (Reinert, 2011,pp.494–495; Schwartz, 2020b,

pp. 1131–1138; 2001,p.547).

Recent empirical work has undermined some of these assumptions.

Schwartz’s(

2017, p. 10) empirical study of cases involving law enforcement sug-

gests that qualified immunity is rarely dispositive in Section 1983 litigation

brought for alleged Fourth Amendment violations. And in earlier work studying

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971)

litigation,

5

I reported data along the same lines about the role of qualified

immunity in litigated cases (Reinert, 2010, p. 843).

6

At the same time, it is clear

that qualified immunity plays an outsized role in the resolution of civil rights

actions that reach the Supre me Court. For example, within the last 20 years,

when certiorari has been granted, it has almost always resulted in the Court

finding that a defendant is entitled to qualified immunity, and almost always in

cases involving alleged Fourth Amendment violations (Baude, 2018, p. 82).

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

1

Section 1983 was enacted by the Reconstruction Congress to help enforce the Fourteenth Amendment against

state actors. Though it lay dormant for nearly a century, it is now one of the most common devices used by

plaintiffs seeking to vindicate their constitutional rights in federal court. See Eisenberg (2015, p. 4) (compiling

statistics for four decades of civil filings and noting that “litigation under Section 1983 and [employment

discrimination] statutes has constituted the largest fraction of the nonprisoner federal civil docket”); Schlanger

(2015) (reporting yearly data on Section 1983 filings by incarcerated people).

2

See infra pp. 7–9.

3

Scholarship regarding qualified immunity is broad and deep. By way of illustration, Westlaw reports that as of

December 31, 2021, since 1980 there have been 428 law review articles with the words “qualified immunity”in the

title and 1654 law review articles in which the phrase “qualified immunity”was used 10 times or more. For articles

questioning the origins of qualified immunity, see generally Baude (2018), Coleman (1986), and Schwartz (2018).

For a structural critique of qualified immunity, see Crocker (2019). For a critique of the practical consequences of

qualified immunity, see Adelman (2018) and Chen (2006). These are just a sampling of the many scholarly and

practical broadsides mounted against the doctrine.

4

For a discussion of this literature, see generally Schwartz (2017, pp. 6–7).

5

In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971, p. 389), the Supreme Court

held that federal agents acting under color of federal law may be found liable for monetary damages for violations

of the Fourth Amendment. Bivens claims are similar to § 1983 claims against state officials, but much more limited

in scope. See generally Reinert and Mulligan (2013).

6

To be clear, both Schwartz and I have also shown how, even if the doctrine is not formally the driver of failure

for civil rights plaintiffs in litigated cases, it still does significant work in the civil rights ecosystem (Reinert, 2011,

pp. 494–495; Schwartz, 2020b, pp. 1131–1138).

QUALIFIED IMMUNITY APPEALS 5

cases, is empirical examination of appellate decision-making. To the extent that

prior empirical work has considered the resolution of qualified immunity on

appeal, it has been limited in scope and design.

7

This paper 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. It does so by analyzing the results of over 4000 decisions in the

federal courts of appeals, encompassing every appellate opinion issued regard-

ing qualified immunity in the years 2004–2008 and 2010–2015.

8

Prior studies,

while informative, have been limited in scope and have focused on different

questions. Some studies have covered only published decisions, only a random

selection of decisions issued in a given time frame, or both, and no prior study

has evaluated more than 850 total opinions.

9

Moreover, none of the prior stud-

ies was designed to evaluate the basic, but central, question addressed here: who

succeeds on qualified immunity arguments in the courts of appeals, and what

variables are correlated with success.

10

This on its own provides a significant

contribution to the understanding of this important doctrine.

This paper goes further, however, because it is also the first to report data

relating to certiorari practice in qualified immunity cases. It does so by follow-

ing every appellate decision in the dataset to determine whether any party filed

a petition for certiorari, whether the petition was granted, and if so, how the

case was resolved in the Supreme Court. These data shed light on the disjunc-

tion between the data suggesting that qualified immunity is not as significant a

presence in trial courts as advocates and commentators have assumed,

11

and the

Supreme Court’s docket, in which qualified immunity has taken an outsized

importance, almost always to the benefit of defendants in civil rights cases

(Kinports, 2016, pp. 63–65).

The results of the study provide several insights that have not been addressed

in past empirical work. First, even if qualified immunity plays a limited role in

the resolution of litigated cases in federal district court, this study shows that

when the defense is deployed, it has a significant impact. Over the course of the

study period, defendants prevailed on appeal in cases involving qualified immu-

nity much more than plaintiffs—the rate at which qualified immunity was

granted in its entirety was twice as high as the rate at which it was denied in its

entirety.

12

Second, and relatedly, this study shows that part of the key to defen-

dants’overall success in the courts of appeal was asymmetric treatment of

7

See infra pp. 9–14.

8

The study did not include decisions in the year 2009 because the Supreme Court announced a significant decision

(Pearson v. Callahan,2009) that year.

9

See infra pp. 9–14.

10

Instead, almost every prior study was designed to determine whether, when courts addressed qualified immunity,

they clarified the law. See id.

11

See supra note 6.

12

See infra pp. 23–24. Qualified immunity was granted in whole in 61% of appeals, denied entirely in 30% of

appeals, and granted and denied in part in 7% of appeals. See id.

6QUALIFIED IMMUNITY APPEALS