How Qualified Immunity Fails

75 Pages Posted: 13 Jan 2017 Last revised: 10 Sep 2018

See all articles by Joanna C. Schwartz

Joanna C. Schwartz

University of California, Los Angeles (UCLA) - School of Law

Date Written: January 10, 2017


This Article reports the findings of the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation. Qualified immunity shields government officials from constitutional claims for money damages so long as the officials did not violate clearly established law. The Supreme Court has described the doctrine as incredibly strong — protecting “all but the plainly incompetent or those who knowingly violate the law.” Legal scholars and commentators describe qualified immunity in equally stark terms, often criticizing qualified immunity for closing the courthouse doors for plaintiffs whose rights have been violated. And the 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 assertion that qualified immunity doctrine shields government officials from these assumed burdens.

This Article is the first to test this foundational assumption underlying the Supreme Court’s qualified immunity decisions. I reviewed the dockets of 1183 Section 1983 cases filed against state and local law enforcement defendants in five federal court districts over a two-year period and measured the frequency with which qualified immunity motions were brought by defendants, granted by courts, and dispositive before discovery and trial. I found that qualified immunity rarely served its intended role as a shield from discovery and trial in these cases. Across the five districts in my study, just thirty-six (3.7%) of the 979 cases in which qualified immunity could be raised were dismissed on qualified immunity grounds. And when one considers all of the Section 1983 cases brought against law enforcement defendants — each of which could expose law enforcement officials to burdens associated with discovery and trial — just eight (.7%) of cases were dismissed at the motion to dismiss stage and twenty-eight (2.4%) were dismissed at summary judgment on qualified immunity grounds. My findings enrich descriptive accounts of qualified immunity’s role in constitutional litigation, undermine expectations about the policy interests served by qualified immunity doctrine, and militate in favor of adjustments to qualified immunity doctrine that would reflect its actual role in constitutional litigation.

Keywords: qualified immunity, civil rights litigation, police misconduct

JEL Classification: K30, K41

Suggested Citation

Schwartz, Joanna C., How Qualified Immunity Fails (January 10, 2017). 127 Yale Law Journal 2 (2017), UCLA School of Law, Public Law Research Paper No. 17-02, Available at SSRN:

Joanna C. Schwartz (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
(310) 206-4032 (Phone)

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