The Qualified Immunity Defense Rarely Prevails Prior To Trial

At my first real job, in Grand Junction, Colorado, one of our firm's big clients represented county officials who were sued for various kinds of alleged misconduct, and we asserted qualified immunity defenses on a regular basis. I am honestly stunned at how rarely this defense now prevails prior to trial. 

I presume that over the last twenty years, the civil rights bar has gotten smarter and learned to distinguish cases that will be dismissed under the doctrine from those that will not, and how to build cases that overcome the qualified immunity defense.

Qualified immunity is a judicially created doctrine that shields government officials from constitutional claims for money damages, even if those officials have violated plaintiffs’ constitutional rights, so long as those constitutional rights are not clearly established. Courts and commentators share the assumption that the doctrine affords a powerful protection to government officials. And the Supreme Court has repeatedly explained that qualified immunity must be as powerful as it is to protect government officials from burdens associated with participating in discovery and trial. Yet the Supreme Court has relied on no empirical evidence to support its assertions that litigation imposes these burdens on government officials, or that qualified immunity doctrine protects against them. 

This Article reports the results of the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation, with particular attention paid to the frequency with which qualified immunity disposes of cases before discovery and trial. Based on my review of 1183 cases filed against law enforcement defendants in five federal court districts, I find that qualified immunity infrequently functions as expected. Fewer than 1% of Section 1983 cases in my dataset were dismissed at the motion to dismiss stage and just 2% were dismissed at summary judgment on qualified immunity grounds. After describing my findings, this Article considers the implications of these findings for descriptive accounts of qualified immunity’s role in constitutional litigation, the extent to which qualified immunity doctrine meets its policy goals, and possible adjustments to the balance struck between individual and government interests in qualified immunity doctrine.

Joanna Schwartz, How Qualified Immunity Fails (2017).