Author:Reinert, Alexander A.
Position:Symposium: The Future of Qualified Immunity

INTRODUCTION 2065 I. QUALIFIED IMMUNITY AT TRIAL: DOCTRINAL GUIDANCE 2069 A. Qualified Immunity Policy and Procedure 2069 B. Qualified Immunity Burdens: The Doctrinal Void 2070 C. Qualified Immunity at Trial: Unanswered Questions 2072 D. Qualified Immunity at Trial: Academic Commentary 2077 II. METHODOLOGY 2080 III. RESULTS 2081 A. Fundamental Case Characteristics 2081 B. Overall Rates of Instruction on Qualified Immunity 2083 C. Qualified Immunity by Case Type 2084 D. Qualified Immunity Instruction by Circuit of Origin 2085 E. Instructions on Burden of Proof/Persuasion 2086 F. Outcome and Qualified Immunity Instructions 2086 IV. IMPLICATIONS 2088 CONCLUSION 2091 INTRODUCTION

Qualified immunity is a powerful doctrine that can, in certain contexts, operate to displace a damages remedy even where a plaintiff can establish that her constitutional rights were violated. Academic literature has focused on many different aspects of the immunity defense, from broad views such as whether the current doctrine is faithful to its common-law roots to concrete consideration of how to resolve some of the intricacies in the doctrine's application. (1) In the backdrop, however, is the longstanding assumption that qualified immunity has a significant impact on the resolution of litigated cases. (2) For many years, however, that assumption was not subjected to empirical scrutiny. (3)

Recent empirical work has undermined some of these assumptions. In the area of Bivens litigation, (4) for example, I have presented data that suggest that qualified immunity rarely, if ever, has an impact on litigated Bivens cases. (5) And Joanna Schwartz's recent work suggests that the same may be said for the parallel area of Section 1983 litigation, at least in cases brought for alleged Fourth Amendment violations. (6)

Even as recent scholarship has raised questions about the perceived wisdom concerning the impact of the qualified immunity defense overall, the recent empirical literature has not addressed an important area: the relevance that the qualified immunity defense plays at trial. Indeed, until this Essay, there has been no systematic empirical study of how qualified immunity is raised and resolved at trial.

Although the number of trials in both state and federal courts has significantly declined over the past several decades, (7) studying the role of qualified immunity at trial is important for many reasons. First, as with the role of qualified immunity in general, the literature abounds with untested assumptions about the work done by qualified immunity at trial. For some scholars, it is obvious that the defense should rarely if ever play a role at trial, (8) whereas for others it is assumed that it will have a powerful impact on jury deliberations. (9) Second, Supreme Court doctrine regarding qualified immunity assumes that there will be a role for qualified immunity at trial, but has not elaborated on when and how that should happen. (10) Examining how and when trial courts instruct juries on qualified immunity helps to understand how ambiguous Supreme Court doctrine operates at the trial court level. Third, examining trials is perhaps the best way of understanding how lower courts have resolved the disputed status of qualified immunity as an affirmative defense. (11) Upon whom, and for what issues, have courts placed the burdens of production, proof, and persuasion? Finally, if, as many observers assume, qualified immunity puts a substantial burden on plaintiffs seeking to remedy their rights, looking to trial outcomes is one means to test this hypothesis.

In this Essay, I present data reflecting how qualified immunity functioned at trials that took place during a three-and-a-half-year period in all federal district courts (beginning in mid-2012 through the end of 2015). The data may be surprising to some. First, they show that juries are rarely instructed on qualified immunity, nor are they routinely asked to resolve disputed factual questions that might bear on application of the defense. In more than eighty-five percent of civil rights trials in which qualified immunity had been raised at some point in the case, district courts gave no instruction on qualified immunity. Second, when they do instruct on qualified immunity or ask jurors to resolve disputed factual questions that bear on the immunity defense, lower courts are not attentive to issues related to the burdens of proof, production, and persuasion. Where lower courts allocate burdens, they are more likely to allocate it to the plaintiff, but in general lower courts neglect to even address burdens when they instruct juries on issues related to qualified immunity. Third, when juries are instructed on qualified immunity, plaintiffs are much less likely to prevail at trial. Indeed, plaintiffs' win rate nearly tripled in cases that went to verdict where the jury was not given a qualified immunity instruction, as compared to cases in which the jury was given such an instruction. This is the case even though there is little evidence that juries ever reach qualified immunity issues in deliberation.

These findings have significant implications, which I discuss toward the end of this Essay. Do jury trials rarely address qualified immunity because, despite the abstract guidance provided by the Supreme Court in cases like Saucier v. Katz, (12) parties and district courts simply cannot discern a line between an officer who violates the Constitution and an officer who acts reasonably in so doing? Are courts treating qualified immunity solely as an immunity from suit and not also a defense to liability, again despite contrary language from the Supreme Court? Or are most cases in which qualified immunity is raised ones in which the principal dispute between the parties consists of the meaning of "clearly established" law and not the reasonableness of the defendant's conduct? These are just some of the questions raised by these findings.

The Essay proceeds as follows. In Part I, I review the basic outlines of qualified immunity doctrine, with which I assume most readers of this volume will be familiar, pausing to focus more directly on two issues that have confounded lower courts: (1) when and how qualified immunity may be raised at trial; and (2) upon whom burdens of production, proof, and persuasion should rest. In Part II, I briefly describe my empirical methodology, and in Part III I present the results of my study. In Part IV, I discuss the implications of these results and avenues for future research. I then offer a brief conclusion.


    1. Qualified Immunity Policy and Procedure

      The qualified immunity defense was first refined by the Supreme Court in the Bivens context (13) to permit public officials to escape liability for unconstitutional conduct where the law governing their conduct was unclear at the time of the violation or where they behaved objectively reasonably, even if unconstitutionally, in light of the clearly established law. (14) If an official can establish either of these elements, (15) then she is immune from damages liability. The Court has crafted the immunity defense to balance the tension between providing citizens with a remedy for constitutional violations, while recognizing that "claims frequently run against the innocent as well as the guilty--at a cost not only to the defendant officials, but to society as a whole." (16)

      The goal of modern qualified immunity doctrine is to provide courts with a means for dismissing claims early on in the life cycle of a case, thus shielding defendants from the burdens of discovery, let alone trial. This is reflected in several aspects of the doctrine. First, in the seminal decision Harlow v. Fitzgerald, the Court instructed lower courts to base resolution of the defense on the "objective reasonableness" of the defendant's conduct in light of clearly established law, not the then-prevailing good-faith standard. (17) The Court viewed the latter standard, with its emphasis on the subjective intentions of the defendant, as insufficiently protective because of the abilities of "ingenious plaintiffs counsel" to create material issues of fact based on little evidence. (18) Thus, moving to an "objective reasonableness" standard was viewed as necessary to "permit the resolution of many insubstantial claims on summary judgment." (19)

      Second, because qualified immunity is an immunity from suit and not just a defense to liability, defendants who assert the defense are entitled to many procedural protections. Qualified immunity can be raised at any time: at the motion to dismiss stage, after limited or full discovery through summary judgment, or at trial. (20) A defendant need not raise it at any particular time to preserve it for trial and may raise it as many times as she wishes. (21) Defendants may be able to seek protection from discovery until the threshold legal question of qualified immunity is resolved. (22) They may pursue multiple interlocutory appeals of otherwise unappealable denials of motions to dismiss or summary judgment, so long as their appeal is confined to law-based qualified immunity arguments. (23) This exception to the final judgment rule is justified as one more tool for public officials to terminate insubstantial suits promptly. (24)

    2. Qualified Immunity Burdens: The Doctrinal Void

      The Court thus has directed lower court judges to resolve qualified immunity, if possible, prior to trial, for the value of the immunity is "effectively lost if a case is erroneously permitted to go to trial." (25) As such, we should not be surprised that the Court has focused on qualified immunity decisions made at the motion to dismiss and summary judgment stage, and not on how the immunity defense is resolved at trial. Of the scores of qualified immunity cases that the Supreme Court has decided (26) since it created the modern version of the defense in Harlow v...

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