How Qualified Immunity Fails.

• Author: Schwartz, Joanna C.

INTRODUCTION

The United States Supreme Court appears to be on a mission to curb civil rights lawsuits against law enforcement officers, and appears to believe qualified immunity is the means of achieving its goal. The Supreme Court has long described qualified immunity doctrine as robust--protecting "all but the plainly incompetent or those who knowingly violate the law." (1) And the Court's most recent qualified immunity decisions have broadened the scope of the doctrine even further. (2) The Court has also granted a rash of petitions for certiorari in cases in which lower courts denied qualified immunity to law enforcement officers, reversing or vacating every one. (3) In these decisions, the Supreme Court has scolded lower courts for applying qualified immunity doctrine in a manner that is too favorable to plaintiffs and thus ignores the "importance of qualified immunity 'to society as a whole.'" (4) As Noah Feldman has observed, the Supreme Court's recent qualified immunity decisions have sent a clear message to lower courts: "The Supreme Court wants fewer lawsuits against police to go forward." (5) And the Court believes that qualified immunity doctrine is the way to keep the doors to the courthouse closed.

Among legal scholars and other commentators, there is a widespread belief that the Supreme Court is succeeding in its efforts. Scholars report that qualified immunity motions are raised frequently by defendants, are granted frequently by courts, and often result in the dismissal of cases. (6) As Ninth Circuit Judge Stephen Reinhardt has written, the Supreme Court's recent qualified immunity decisions have "created such powerful shields for law enforcement that people whose rights are violated, even in egregious ways, often lack any means of enforcing those rights." (7) Three of the foremost experts on Section 1983 litigation--Karen Blum, Erwin Chemerinsky, and Martin Schwartz--have concluded that recent developments in qualified immunity doctrine leave "not much Hope left for plaintiffs." (8)

The widespread assumption that qualified immunity provides powerful protection for government officials belies how little we know about the role qualified immunity plays in the litigation of constitutional claims. (9) The scant evidence available on this topic points in opposite directions. Studies of qualitied immunity decisions have found that qualified immunity motions are infrequently denied, suggesting that the doctrine plays a controlling role in the resolution of many Section 1983 cases. (10) But when Alexander Reinert studied the dockets in Bivens actions--constitutional cases brought against federal actors--he found that grants of qualified immunity led to just 2% of case dismissals over a three-year period. (11) If qualified immunity protects all but the "plainly incompetent or those who knowingly violate the law," (12) and qualified immunity motions are infrequently denied, how can qualified immunity be the basis for dismissal of such a small percentage of cases?

More than descriptive accuracy is at stake in answering this question--it goes to a core justification for qualified immunity's existence. Although the concept of qualified immunity was drawn from defenses existing in the common law at the time 42 U.S.C. [section] 1983 was enacted, the Court has made clear that the contours of qualified immunity's protections are shaped not by the common law but instead by policy considerations. (13) In particular, the Court seeks to balance "two important interests--the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." (14) Since the doctrine's inception, the Court has repeatedly stated that financial liability is one of the burdens qualified immunity is intended to protect against. (15) Yet, as I showed in a prior study, law enforcement defendants are almost always indemnified and thus rarely pay anything towards settlements and judgments entered against them. (16) Near certain and universal indemnification drastically reduces the value of qualified immunity as a protection against the burden of financial liability.

In recent years, the Court has focused increasingly on a different justification for qualified immunity: the need to protect government officials from nonfinancial burdens associated with discovery and trial. (17) This desire has arguably shaped qualified immunity more than any other policy justification for the doctrine. (18) Yet we do not know to what extent discovery and trial burden government officials, or the extent to which qualified immunity doctrine protects against those assumed burdens. Although both questions demand critical investigation, this Article focuses on the latter. Assuming that discovery and trial do impose substantial burdens on government officials, and that shielding officials from discovery and trial is a legitimate aim of qualified immunity doctrine, to what extent does qualified immunity actually achieve its intended goal?

To answer these questions, I undertook the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation. I reviewed the dockets of 1,183 lawsuits filed against state and local law enforcement defendants over a two-year period in five federal district courts--the Southern District of Texas, the Middle District of Florida, the Northern District of Ohio, the Eastern District of Pennsylvania, and the Northern District of California. (19) I tracked several characteristics of these cases including the frequency with which qualified immunity was raised, the stage of the litigation at which qualified immunity was raised, the courts' assessments of defendants' qualified immunity motions, the frequency and outcome of interlocutory and final appeals of qualified immunity decisions, and the cases' dispositions.

I found that, contrary to judicial and scholarly assumptions, qualified immunity is rarely the formal reason that civil rights damages actions against law enforcement end. Qualified immunity is raised infrequently before discovery begins: across the districts in my study, defendants raised qualified immunity in motions to dismiss in 13.9% of the cases in which they could raise the defense. (20) These motions were less frequently granted than one might expect: courts granted motions to dismiss in whole or part on qualified immunity grounds 13.6% of the time. (21) Qualified immunity was raised more often by defendants at summary judgment and was more often granted by courts at that stage. But even when courts granted motions to dismiss and summary judgment motions on qualified immunity grounds, those grants did not always result in the dismissal of the cases--additional claims or defendants regularly remained and continued to expose government officials to the possibility of discovery and trial. Across the five districts in my study, just 3.9% of the cases in which qualified immunity could be raised were dismissed on qualified immunity grounds. (22) And when one considers all the Section 1983 cases brought against law enforcement defendants--each of which could expose law enforcement officials to whatever burdens are associated with discovery and trial--just 0.6% of cases were dismissed at the motion to dismiss stage and 2.6% were dismissed at summary judgment on qualified immunity grounds. (23)

Although courts rarely dismiss Section 1983 suits against law enforcement on qualified immunity grounds, there is every reason to believe that qualified immunity doctrine influences the litigation of Section 1983 claims in other ways. The threat of a qualified immunity motion may cause a person never to file suit, or to settle or withdraw her claims before discovery or trial. (24) Qualified immunity motion practice and interlocutory appeals of qualified immunity denials may increase the costs and delays associated with Section 1983 litigation. The challenges of qualified immunity doctrine may cause plaintiffs' attorneys to include claims in their cases that cannot be dismissed on qualified immunity grounds--claims against municipalities, claims seeking injunctive relief, and state law claims. Qualified immunity likely influences the litigation of cases against law enforcement in each of these ways. But, as my study makes clear, qualified immunity does not affect constitutional litigation against law enforcement in the way the Court expects and intends.

One should not conclude based on my findings that the Supreme Court simply needs to make qualified immunity stronger. As a preliminary matter, qualified immunity may not be well suited to weed out only insubstantial cases. (25) Moreover, my data suggest that qualified immunity is often fundamentally ill suited to dismiss filed cases, regardless of their underlying merits. (26) Although district courts recognize that they should dispose of cases as early as possible on qualified immunity grounds, plaintiffs can often plausibly plead clearly established constitutional violations and thus defeat motions to dismiss. Factual disputes regularly prevent dismissal at summary judgment. And even when courts grant qualified immunity motions, additional defendants or claims often remain that continue to expose government officials to the burdens of litigation. My data also suggest that qualified immunity is less essential than has been assumed to serve its intended protective function. The Supreme Court suggests in its opinions that qualified immunity is the only barrier standing between government officials and the burdens of discovery and trial. Instead, my study shows that litigants and courts have a wide range of tools at their disposal to resolve Section 1983 cases.

One also should not conclude based on my findings that qualified immunity is more benign than has been assumed. My findings do show that Section...