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Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2 (2017).

The critical scholarly narrative surrounding civil rights litigation is that the Supreme Court in the past decade has expanded the defense of qualified immunity, particularly through a series of per curiam reversals of qualified-immunity denials, with the Justices impatiently demanding that lower courts properly (and expansively) approach immunity. The effect has been to slam the courthouse doors on injured plaintiffs. Expansive qualified immunity insulates all but the “plainly incompetent” and those who knowingly violate the law. It shields officers against liability except for the rare case in which the officer violated a constitutional right that was “clearly established” by binding precedent finding a constitutional violation on factually similar conduct in factually similar circumstances, or the rarer case in which the violation was so obvious in light of general constitutional principles (such as tying a prisoner to a hitching post in the sun for seven hours). And the Court moved the doctrine in this direction for unabashed policy reasons—to insulate law-enforcement and other public officials from the cost, burden, distraction, and expense of litigation, discovery, and trial, by raising the bar for liability and requiring resolution of immunity early in litigation.

In How Qualified Immunity Fails, Joanna Schwartz’s empirical study shows both the critical narrative and the Court’s purported goals to be empirically unsupportable.

Schwartz reviewed dockets for cases brought by civilians alleging constitutional violations by state and local law-enforcement employees and agencies. The study examined cases filed in 2011 and 2012 in five federal districts in five circuits (Southern District of Texas, Middle District of Florida, Northern District of Ohio, Eastern District of Pennsylvania, and Northern District of California). The study yielded 1,183 cases; qualified immunity could be raised as a defense in 979 of them because the case included claims against an individual officer for money damages. In all but three cases, qualified immunity was raised only on summary judgment, only on a motion to dismiss on the pleadings, or at both stages (it was raised only at trial or appeal in the other cases). Schwartz identified 440 motions (to dismiss on the pleadings or summary judgment) in those cases; qualified immunity was denied in the plurality (139) and granted in full or in part in a smaller number (79). In fact, courts were more likely to grant dismissal or summary judgment in whole or in part on other grounds or without mentioning qualified immunity. Moreover, a grant of qualified immunity need not end the litigation or that officer’s role in the litigation; other claims may remain in the case for which qualified immunity is unavailable (claims for non-monetary relief, claims against government entities, and claims under state law). Schwartz identified only 38 cases in which qualified immunity ended the litigation—27 on summary judgment, 7 on pleadings dismissal, and 4 on appeal.

These findings suggest that qualified immunity does not slam the courthouse doors as critics fear. To the extent civil rights and constitutional claims fail, they fail for reasons other than qualified immunity. The plaintiff failed to plead facts showing a plausible claim for a constitutional violation. Or he failed to produce evidence showing a genuine dispute of material fact. For Bivens claims against federal officials (which were not included in this study, but are the subject of an ongoing study by a group of scholars), the hurdle is the narrowing of the Bivens cause of action itself. Or claims fail because the scope of constitutional rights and the standards for establishing a violation have narrowed, leaving law-enforcement officials more constitutional leeway to act.

At the same time, Schwartz’s findings show that qualified immunity does not achieve its policy goals of protecting government officials from the cost, burden, expense, and distraction of discovery and litigation. A finding of qualified immunity does not get the individual officer out of litigation or discovery and its associated burdens. Claims may remain seeking equitable relief for the constitutional violation or seeking remedies under state law. Claims may remain against the municipality; although the officer no longer remains a party, he may remain part of the litigation and the discovery process as a witness and as the person whose conduct is the linchpin for the entity’s liability. And the grant of qualified immunity likely had to await summary judgment, which must await some discovery, meaning the officer had to endure some of the burdens, costs, and distractions that immunity is designed to limit.

In establishing the modern approach to qualified immunity, the Supreme Court acknowledged that the doctrinal balance might be reconsidered if the realities of constitutional litigation undermine the Court’s assumptions about the purposes and benefits of immunity. Schwartz insists that her findings have undermined those assumptions, revealing the doctrine as “an exercise in futility.” The answer, however, is not to make qualified immunity stronger. She doubts the doctrine could be stronger than it is, certainly in the Supreme Court. And even expansive qualified immunity is not tailored to its intended role, because immunity cannot be adequately resolved before discovery and summary judgment and because plaintiffs can avoid the defense by including claims to which immunity does not apply.

Instead, Schwartz’s empirical demonstration of the emptiness of qualified immunity suggests the Court should eliminate or redefine the defense. It could rely on other mechanisms (summary judgment, motions to dismiss, and the limits of substantive constitutional rights) to protect officers against non-meritorious claims. It could reinstate the subjective prong to qualified immunity, denying immunity to officers who act in knowing and subjective bad faith or with knowledge of the unconstitutionality of their behavior. It could eliminate immediate appeal of immunity denials under the collateral order doctrine. At a minimum, it could move the “clearly established” prong away from case law and the demand for on-point precedent to a focus on a broader sense of whether the officer’s conduct was “clearly unconstitutional,” whether based on case law or general constitutional principles.

This is the second article in which Schwartz has used empirical study to show that the Court’s assumptions around qualified immunity are flawed. She previously showed that qualified immunity fails to serve an alternative purpose of avoiding over-deterring law enforcement for fear of personal liability; her study of indemnification agreements revealed that officers pay even a small portion of any judgment in only a miniscule percentage of cases. With this second paper, Schwartz has completed the task of showing that the Emperor of Qualified Immunity has no clothes.

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Cite as: Howard M. Wasserman, The Empirical Truth About Qualified Immunity, JOTWELL (February 23, 2018) (reviewing Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2 (2017)),