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Volokh Conspiracy

Imagining a World Without Qualified Immunity, Part II

Absent qualified immunity, the rate at which plaintiffs win would remain about the same.


This week, in excerpts from a forthcoming article, I am offering several predictions about a post-qualified immunity world. Today, I explain why plaintiffs' rate of success in civil rights cases would not dramatically change.

This prediction will likely surprise most commentators and courts, who appear to believe that most civil rights cases are dismissed on qualified immunity grounds and that eliminating qualified immunity would dramatically increase the frequency with which civil rights plaintiffs win. But those who hold this view overlook the fact that most civil rights cases that are dismissed fail for reasons other than qualified immunity.

When I studied 1183 civil rights cases filed in five federal districts around the country, I found just thirty-six that were dismissed on qualified immunity grounds. Another 431 cases were dismissed for a variety of other reasons: some were dismissed as frivolous by the court before the defendant ever received the complaint; some were dismissed at the motion to dismiss or summary judgment stages on grounds other than qualified immunity; and some were dismissed following defense verdicts at trial. For every case in my dataset dismissed on qualified immunity grounds, another twelve failed for other reasons. Although there is regional variation in the frequency with which qualified immunity is raised, granted, and dispositive, qualified immunity was not the most common reason for dismissal even in the districts most sympathetic to the defense.

Of course, qualified immunity can cause a plaintiff to fail even if it isn't formally the reason the case is dismissed. The claims a jury would find most sympathetic could be dismissed on qualified immunity grounds, leading to a defense verdict at trial. Or the cost of defending against a qualified immunity motion might use up all of a plaintiff's resources, and cause her to abandon her case.

But there are only a few cases in my dataset in which qualified immunity could have caused plaintiffs to fail in these ways. In 68% of the cases that were dismissed on grounds other than qualified immunity, defendants never raised the qualified immunity defense. In another 22% of the cases, defendants raised qualified immunity as one of several arguments at the motion to dismiss or summary judgment stages, and courts dismissed plaintiffs' claims on other grounds. In 4.4% of the cases, defendants raised qualified immunity at some point during litigation, lost those motions in their entirety, and then prevailed at trial. So, in almost 95% of the cases dismissed on grounds other than qualified immunity, it appears that qualified immunity did not play even an informal role in the plaintiffs' failures.

That leaves us with a total of 60 cases that were dismissed without payment to plaintiff where the result could conceivably be different absent qualified immunity: the 36 cases dismissed on qualified immunity grounds; 11 cases that ended in defense verdicts after qualified immunity motions were granted in whole or part; and 13 cases that were dismissed as a sanction or for failure to prosecute after a qualified immunity motion was filed. Assuming, for the sake of argument, that plaintiffs would have succeeded in all 60 cases in a world without qualified immunity, plaintiffs' success rate would only increase about five percentage points—from 57.7% to 62.8%—across the districts in my study.

But I am skeptical that the dispositions in most of these cases would change.

In all but one of the cases formally dismissed on qualified immunity grounds, courts found that the plaintiffs had not met their burden regarding the constitutional claim or made clear they were skeptical about the cases' underlying merits. Even without qualified immunity, most or all of these cases would have been dismissed because the courts would have found plaintiffs failed to satisfy their burdens of pleading and proof.

Now consider the 11 cases where some claims were dismissed on qualified immunity grounds, and then defendants won at trial. It is impossible to know what the juries in these cases would have decided had they been able to evaluate all the claims and evidence. But plaintiffs in my docket dataset usually lost at trial—regardless of whether qualified immunity was raised. Plaintiffs' attorneys I interviewed and surveyed reported that juries are often more sympathetic to government defendants, and more likely to believe officers at trial. Several attorneys I interviewed predicted that more cases would go to trial in a world without qualified immunity, but that jurors' skepticism about civil rights plaintiffs' claims meant that they would not prevail more often.

Finally, consider the 13 cases dismissed as a sanction or for failure to prosecute. Three were dismissed because counsel failed to comply with court orders after defendants' qualified immunity motions were denied or granted in part on other grounds. In none of these cases is there any indication qualified immunity played a role in their dismissal. Another nine were brought by pro se plaintiffs who failed to respond to motions or comply with court orders—but pro se plaintiffs usually lose, whether or not qualified immunity is raised. For all of these reasons, most plaintiffs in my dataset whose cases were dismissed without payment would not have had better luck in a world without qualified immunity.

So far, I have focused on the cases in which plaintiffs lost. But eliminating qualified immunity could also influence the outcomes of cases in which plaintiffs succeeded. One would assume that most plaintiffs in my dataset who were able to negotiate a settlement or win at trial would be able to succeed in these same ways were qualified immunity eliminated. But eliminating qualified immunity might sometimes cause plaintiffs to decline settlements in favor of trial.

Approximately 17% of qualified immunity motions and 34% of interlocutory and final appeals in my dataset were never decided, presumably because the cases settled while the motions were pending. These settlements may have been motivated by the plaintiffs' uncertainty about how the qualified immunity motions and appeals would be decided. Were qualified immunity abolished, plaintiffs might decide to take more cases to trial. But, as I have explained, defendants win the vast majority of cases that go to trial and attorneys believe jurors are hostile to these cases. So, if cases that would have otherwise settled would go to trial absent qualified immunity, at least some of those plaintiff "successes"—settlements—might turn into failures after trial.

For reasons I will explain on Thursday, eliminating qualified immunity would likely result in more civil rights cases filed. But these additional cases would likely have a similar success rate as cases filed today. Plaintiffs would still have to overcome the same burdens of pleading, discovery, and proof that are today the primary reasons cases get dismissed. And there is no reason to believe that the additional cases filed in a world without qualified immunity would be better able to overcome those obstacles than the pool of cases filed today.