The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Imagining a World Without Qualified Immunity, Part III

Eliminating qualified immunity would decrease the average cost, complexity, and time spent adjudicating civil rights cases.


The Supreme Court has written that "the 'driving force' behind creation of the qualified immunity doctrine was a desire to ensure that 'insubstantial claims' against government officials [will] be resolved prior to discovery." The Court presumably believes, then, that eliminating qualified immunity would increase litigation burdens on defendants. But, as I explain in a forthcoming article, excerpted here, all available evidence suggests qualified immunity actually increases the time, cost, and complexity of civil rights cases in which the defense is raised—and that eliminating qualified immunity would decrease the average cost, complexity, and time spent adjudicating civil rights cases.

Litigants and courts spend money and time on qualified immunity in four different ways. First, they spend time and money researching, briefing, writing, arguing, and deciding motions raising qualified immunity. Defendants are entitled to qualified immunity unless a plaintiff can prove the constitutional violation was obvious, or can point to a factually similar case from their circuit or the Supreme Court, or a consensus of factually similar cases, that would put the defendant on notice that his conduct was unlawful. So, for a plaintiff effectively to respond to a qualified immunity motion, she must research factually similar cases holding defendants' conduct unconstitutional, and then must brief and argue the motion.

Second, litigants spend money and time on appeals of qualified immunity denials. Unlike most other arguments raised in civil rights cases, defendants are entitled to immediate ("interlocutory") appeals of qualified immunity denials. Attorneys must take time to research, brief, and argue oppositions to interlocutory appeals, and courts of appeals must take time to consider and decide the appeals.

Third, cases can be suspended while qualified immunity motions and appeals are pending. In my study, I found defendants received formal discovery stays—lasting 152 days, on average—in almost six percent of the cases in which qualified immunity was raised at the motion to dismiss stage. Interlocutory appeals were pending for 441 days on average before being decided.

Fourth, apart from the costs and time associated with individual qualified immunity motions, litigants and courts must learn about and stay abreast of the law. Qualified immunity is considered a particularly complex area of civil rights law—what John Jeffries has called "a mare's nest of complexity and confusion." The Supreme Court has offered unclear and shifting guidance about which courts' decisions can clearly establish the law, and how factually similar prior precedent must be to clearly establish the law. Litigants and courts report dedicating significant time and resources to understanding the intricacies of the doctrine.

Qualified immunity increases the cost, complexity, and time associated with civil rights litigation in each of these ways. But qualified immunity might still be shielding government defendants from the burdens of discovery and trial if the motions are raised early—before defendants engaged in discovery—and granted, foreclosing further litigation of the case. Among 1183 federal civil rights cases I examined, neither is true. Defendants most often raised qualified immunity at summary judgment, after litigants had already participated in discovery. And just 8.6% of defendants' qualified immunity motions resulted in the dismissal of plaintiffs' cases. In the remaining 91.4% of motions, the parties and courts took the time and money to research, brief, argue and decide the qualified immunity defense without disposing of the cases.

Qualified immunity motions and appeals might not even save litigants time in the rare event that they are dispositive. Thirty-six cases in my dataset were dismissed on qualified immunity grounds. Courts in 35 of those 36 cases held that plaintiffs also had failed to meet their burden of pleading or proof, or expressed skepticism about the merits of plaintiffs' claims. Absent qualified immunity, it appears that most or all of those 35 cases would have been dismissed on other grounds. If so, the time taken to research and brief qualified immunity in these thirty-five cases was unnecessary.

In one of the 36 cases dismissed on qualified immunity grounds, the court held that a jury could have found the plaintiff's constitutional rights were violated, but granted qualified immunity because those rights were not clearly established. In a world without qualified immunity, the case might have gone to trial. Did qualified immunity save the parties time in this case? Not likely. Civil rights trials—which, in my dataset, were almost always completed within a few days—take far less time than qualified immunity motions and appeals take to resolve.

Some have suggested that qualified immunity might streamline litigation in another way—by encouraging plaintiffs' attorneys to settle early, while a qualified immunity motion is pending or threatened. But several plaintiffs' attorneys I interviewed held the opposite view—they believe that qualified immunity delays settlement because defendants do not engage in meaningful settlement negotiations until after summary judgment motions raising qualified immunity have been decided. My study of almost 1200 civil rights cases suggests that both views may sometimes be correct—some cases settled while qualified immunity motions were pending, and approximately the same number settled after qualified immunity motions were denied. So qualified immunity may hasten settlement in some cases, but it may delay settlement in others.

Doing away with qualified immunity would eliminate the need to spend time and money bringing, defending against, and deciding qualified immunity motions and interlocutory appeals; eliminate lengthy delays while motions and appeals are pending; and make irrelevant a complex, uncertain, and shifting area of the law. Most qualified immunity motions are denied, only adding to the cost of litigation. Even if some cases that would have settled or been dismissed because of qualified immunity instead go to trial, eliminating the defense may still be the most efficient course because trials are often quicker and less complex than qualified immunity motion practice and appeals. Although qualified immunity is intended to reduce litigation burdens, doing away with qualified immunity may actually decrease the average time, complexity, and cost of civil rights cases.