The Volokh Conspiracy

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Volokh Conspiracy

Imagining a World Without Qualified Immunity, Part IV

Were qualified immunity eliminated, the total number of civil rights cases would likely increase, but attorneys would continue to have strong incentives not to file insubstantial cases.


The Supreme Court intends for qualified immunity doctrine to shield government officials from the costs and burdens associated with insubstantial litigation. Some have suggested that the doctrine may achieve this goal by discouraging plaintiffs from ever filing insubstantial cases. If so, eliminating qualified immunity might open the floodgates to frivolous suits. But those holding this viewing overlook two critically important features of civil rights litigation: plaintiffs' attorneys' strong incentives to decline weak cases, and the many other barriers to relief in these cases. Attorneys would likely file more civil rights cases absent qualified immunity, but there would be no massive influx of frivolous cases.

Plaintiffs' attorneys generally accept civil rights cases on contingency, with an agreement that they can seek reasonable attorneys' fees under Section 1988 if the plaintiff prevails. Congress intended that the availability of attorneys' fees would create financial incentives for plaintiffs' attorneys to bring civil rights cases, including cases with limited recoverable damages. But the Supreme Court's narrow construction of what it means to prevail in civil rights cases means that plaintiffs are generally entitled to fees only if they win at trial. If a case is settled, the lawyer's fee will usually be a percentage of the settlement award. If the plaintiff loses, the attorney bears the entire cost of litigation.

This arrangement means plaintiffs' attorneys have strong incentives to accept cases they believe they will win (so that the attorney is not shouldered with the costs of litigation), and that are likely to result in large damages awards (so that the attorney can be assured adequate compensation if the case resolves in plaintiff's favor before trial).

As a result, plaintiffs' attorneys are extremely selective about the cases they accept and report declining the vast majority of cases they consider. Vulnerability to motion practice and dismissal on qualified immunity is one consideration some attorneys take into account. But attorneys report considering a wide variety of factors related to a case's costs, risks, and potential rewards—including whether judge and jury will be sympathetic to the plaintiff, the strength of the evidence supporting the plaintiff's claims, whether the evidence will establish a constitutional violation, the cost of litigating the case, and the amount of recoverable damages. Eliminating qualified immunity would do away with one challenge that increases the cost, risks, and complexity of these cases. But these other barriers to relief would remain, and lawyers would continue to be very selective in the cases that they accept.

With that said, eliminating qualified immunity would likely result in more lawsuits being filed. One attorney I interviewed reported that the challenges associated with qualified immunity had caused him to stop filing any civil rights cases. And it may be that many more attorneys file few civil rights cases or stop bringing such cases altogether because of qualified immunity and other barriers to relief. Without qualified immunity, more attorneys might be willing to accept civil rights cases, and attorneys who already accept civil rights cases might devote a larger percentage of their docket to this area of practice.

Eliminating qualified immunity would also likely encourage attorneys to file some types of claims more frequently. One-third of the attorneys I interviewed reported declining certain types of cases because of qualified immunity, including cases alleging novel constitutional violations, cases concerning certain types of claims—like false arrest claims—where the qualified immunity standard is particularly difficult to overcome, and cases where low potential damages do not offset the potential costs of litigating qualified immunity motions and appeals. Without qualified immunity, attorneys would be less concerned about bringing these types of claims.

But even if eliminating qualified immunity changed attorneys' calculation of risk and reward and increased their willingness to consider taking certain cases, attorneys' case selection decisions would still be made against the backdrop of their contingency fee arrangements and the many other challenges associated with bringing these cases.

An attorney considering whether to accept a case with a novel constitutional claim would no longer be discouraged by the fact that she cannot point to another factually similar case on point, but might decline the case if the facts are not egregious or there is no video or witness to support the plaintiff's story. An attorney considering whether to accept a case with low recoverable damages would not have to litigate qualified immunity in the district court or on appeal, but would still recognize that, unless the case goes to trial and she can recover fees pursuant to Section 1988, her payment will be limited to a portion of the plaintiff's small settlement. And, even in a world without qualified immunity, attorneys might continue to conclude it would be wiser to spend the majority of their time on personal injury or medical malpractice cases than on civil rights claims, given jurors' perceived predisposition in favor of government officials.

Eliminating qualified immunity would likely increase the number of civil rights cases filed somewhat. But, even in a world without qualified immunity, attorneys would still have strong incentives to file successful civil rights cases, and many barriers to relief would still remain in these cases that would inform attorneys' case selection decisions. For these reasons, a lawyer with whom I spoke predicted that there would be "a fairly small number" of cases he would decline today but accept in a world without qualified immunity. Attorneys would still consider civil rights litigation to be less reliably remunerative than personal injury, medical malpractice, or work for paying clients. And those that do decide to bring civil rights cases would continue to reject the vast majority of cases that came their way.