An empirical analysis of section 1983 qualified immunity actions and implications of Pearson v. Callahan.

• Author: Sobolski, Greg
• Position: NOTE

INTRODUCTION I. QUALIFIED IMMUNITY AND THE SEQUENCING DEBATE: A SUMMARY A. The Pre-Siegert Period (Period One): No Guidance from the Court B. The Pre-Saucier Period (Period Two): Limited Guidance from the Court; Confusion Among Lower Courts C. The Post-Saucier Period (Period Three): The Court Mandates Sequencing D. The Post-Pearson Period (Period Four): The Court Reverses Course; Sequencing Discretionary but Encouraged II. CRITIQUES OF MANDATORY SEQUENCING AND A POSSIBLE CONTRIBUTION FROM THIS NOTE A. Prior Empirical Studies on Mandatory Sequencing B. This Note's Contribution to the Mandatory Sequencing Debate III. RESULTS A. Methodology B. Results and Analysis 1. Description of sample trends 2. Testing for statistical significance of the observed increase in the frequency of rights-restricting outcomes from pre- to post-Saucier 3. Testing for statistical significance of the change in frequency of rights-affirming outcomes from pre- to post-Saucier 4. Distinguishing present and potential future plaintiffs IV. DISCUSSION A. Reconciling Emerging Studies in a Nascent Field B. Rethinking the Role of Saucier as the Proxy for the Start of Mandatory Sequencing C. Limits of the Present Study D. Implications for the Significance of Pearson v. Callahan CONCLUSION APPENDIX A. Code Book B. Statistical Analysis 1. Pearson's Chi-squared 2. Student's t-test INDEX OF TABLES AND FIGURES Figure 1. Five Possible Outcomes in [section] 1983 Qualified Immunity Actions Table 1. Distribution of Appellate Outcomes From Study Sample Across Three Doctrinal Periods Table 2. Distribution of Rights-Restricting Versus Rights-Affirming or Rights-Neutral Outcomes in Pre- and Post-Saucier Periods Table 3. Distribution of Rights-Affirming Versus Rights-Denying or Rights-Neutral Outcomes in Pre- and Post-Saucier Periods Table 4. Comparative Results from Sobolski-Steinberg, Leong, and Hughes Studies Figure 2. Percentage of Outcomes That Were Rights-Neutral Grants of Qualified Immunity from Seigert to December 2008 INTRODUCTION

The Supreme Court's recent decision in Pearson v. Callahan (1) marked a turning point in a judicial experiment concerning [section] 1983 (2) constitutional litigation, which began in 2001 with Saucier v. Katz. (3) The experiment involved the doctrine of qualified immunity, an immunity from suit extended to state and local government officials (and to federal officials in Bivens actions (4)) in [section] 1983 actions for monetary relief where it would not be "clear to a reasonable officer that his conduct was unlawful in the situation he confronted." (5)

A court deciding a [section] 1983 action in which the defendant pleads qualified immunity faces two possible questions: (1) whether a constitutional right of the plaintiff was violated; and (2) whether that right was "clearly established" at the time the conduct occurred. If the court answers the first question "no," the defendant prevails because the plaintiff has failed to successfully allege a constitutional violation. If the court answers the second question "no," the defendant is entitled to qualified immunity, barring the plaintiff's recovery. The question at the heart of the line of cases leading to Pearson is whether a court must confront the constitutional question regardless of the outcome of the "clearly established" qualified immunity prong, or whether a court may skip the substantive constitutional issue altogether when the answer to the "clearly established" prong supports granting qualified immunity.

The stakes are high because the difference between mandatory or discretionary sequencing may bear on the frequency with which courts address substantive constitutional rights questions, which in turn impacts the "rate" at which constitutional rights are "clearly established" through precedents. While the Supreme Court's jurisprudence has spanned the spectrum from providing no guidance about sequencing, to suggesting it, to requiring it, and after Pearson, again to only suggesting it, there have been until recently no empirical studies that examined the relationship between the Supreme Court's position on the qualified immunity sequencing issue and the behavior of lower courts resolving [section] 1983 claims.

This Note examines a random sample of 741 appellate qualified immunity cases, representing 901 [section] 1983 claims, drawn from thirty-two years of qualified immunity jurisprudence (1976-2008). (6) Ours is the largest data set constructed on the topic to date.

Part I describes how the scholarship has generally divided the evolution of qualified immunity doctrine into three doctrinal periods. Part I.A considers a first doctrinal period, during which the Supreme Court issued little guidance to lower courts on sequencing. Part I.B describes a second period marked by Siegert v. Gilley, (7) which encouraged confrontation of the constitutional question before the "clearly established" question. That approach is typically thought to have lasted until the Court's Saucier decision in 2001, detailed in Part I.C, which mandated that the constitutional rights question be answered first. Saucier's requirement represented a high-water mark in the Court's efforts to create a uniform and obligatory procedure for all courts to adjudicate [section] 1983 actions. But Saucier became the target of criticism, sparking a debate ("the sequencing debate") in academia and the judiciary about the virtues of mandatory sequencing. Part I.D then introduces the post-Pearson period, heralded by the Court's latest qualified immunity decision.

Part II overviews the key criticisms of the Saucier regime, but focuses primarily on an issue of relevance to this Note's empirical findings: how mandatory sequencing affects constitutional articulation--the judicial process of confronting and resolving substantive constitutional questions--thus clarifying what sets of facts and conduct represent rights violations. Although the Saucier Court insisted that sequencing was central to providing explanations about the "law's elaboration from case to case," (8) there has been little dispute and, until recently, little empirical research on the relationship between mandatory sequencing and constitutional articulation as it is borne out in the courts.

How lower courts have approached sequencing during three phases of Supreme Court guidance was the subject of only one empirical study prior to 2009. (9) That study, authored by Professor Thomas Healy in 2005, is of limited use for understanding the impact of the evolution of qualified immunity doctrine on the behavior of lower courts because it examined only a small set of appellate decisions issued after the Saucier opinion. (10)

Part II.A introduces relevant prior scholarship on empirical dimensions of qualified immunity. Two contemporary quantitative studies of qualified immunity were published in 2009. (11) In one, Paul Hughes sampled appellate dispositions during three discrete time intervals falling within the three doctrinal periods, and documented the expected finding that the shift to mandatory sequencing corresponded to a decrease in the frequency with which appellate courts skipped the substantive constitutional question. (12)

In a subsequent study, Nancy Leong sampled appellate and district court opinions from three discrete time intervals, and concluded that Saucier has increased the quantity of constitutional articulation, but at the expense of constraining plaintiffs' constitutional rights.(13) Part II.B locates this Note within the context of these prior studies. After presenting and analyzing original data in Part III, this Note revisits the Leong and Hughes conclusions in Part IV, echoing their findings on the frequency of constitutional articulation in the post-Saucier period, but presenting new conclusions as to how that articulation has affected the development of constitutional rights in the appellate courts.

Part III.A describes our methodology, and Part III.B presents our results. Generally, this Note provides evidence that while a mandatory sequencing regime may disadvantage plaintiffs bringing [section] 1983 actions, it may also have a rights-affirming effect for plaintiffs, thereby benefiting potential future plaintiffs bringing similar [section] 1983 claims. Our analysis shows that: (1) the imposition of Saucier's mandatory sequencing regime was associated with a decreased frequency of outcomes where the court granted qualified immunity without addressing the substantive constitutional question (Part III.B.1); (2) after Saucier, there was an increase in the frequency of outcomes where the court denied a constitutional violation, but that change was not statistically significant (Part III.B.2); (3) after Saucier, there was a statistically significant increase in the frequency of outcomes where the court found the plaintiff successfully alleged a constitutional violation (Part III.B.3); but (4) in the pre-Saucier period, plaintiffs found by the court to have successfully alleged a constitutional violation were more likely (by 11%) to ultimately recover damages than their counterparts after Saucier, also a statistically significant observation (Part III.B.3).

Part IV.A reviews this Note's findings in light of related quantitative work. The discussion assesses--and, based on our data, ultimately rejects--the common view of a three-period framework in which, before Saucier, lower courts freely exercised their discretion to determine the sequence of qualified immunity inquiries. Saucier was not necessarily a seismic moment at which the mandatory period began among appellate courts. This Note proceeds along the traditional view until Part IV.B, but then presents quantitative and qualitative evidence that appellate courts considered themselves bound to sequence even before the Saucier decision. In other terms, Saucier is not a clean proxy for the point at which appellate courts suddenly begin perfect compliance with sequencing...