Qualified Immunity Selection Effects
57 Pages Posted: 7 Aug 2018 Last revised: 14 Aug 2018
Date Written: July 30, 2018
Available evidence suggests that only 1% of people who believe they have been wronged by the police ultimately sue. This Article asks what role qualified immunity plays in decisions to forgo litigation by the remaining 99%. The answer to this question is critically important not only for a more complete understanding of the role qualified immunity plays in constitutional litigation, but also for a better understanding of the extent to which the doctrine achieves its goal of shielding government officials from the burdens of discovery and trial in insubstantial cases. Based on the most extensive empirical study to date of the role qualified immunity plays in attorneys’ decisions to file civil rights suits—combining the results of an original docket dataset of almost 1200 federal civil rights cases filed in five federal districts, surveys of almost 100 attorneys who entered appearances in these cases, and in-depth interviews of thirty-five of these attorneys—I find that qualified immunity almost certainly increases the risks, costs, and complexity of Section 1983 cases, even as it is the formal reason few cases are dismissed. Yet qualified immunity has a more equivocal impact on case filing decisions. Two-thirds of attorneys I interviewed reported that they decline few if any cases because of qualified immunity. These attorneys agree that qualified immunity poses significant costs and risks, but believe that those costs and risks replicate other case-selection considerations, are too unpredictable to influence filing decisions, can be mitigated by including claims that cannot be dismissed on qualified immunity grounds, or are costs and risks worth taking in order to advance important interests. One-third of the attorneys I interviewed report that they do decline cases because of qualified immunity. These attorneys are unwilling to take cases alleging certain types of claims—like false arrest—where the qualified immunity standard is too difficult to overcome, and cases with fact patterns that have not previously been held unconstitutional. One attorney reported that the challenges associated with qualified immunity caused him to stop bringing civil rights cases altogether. Although these responses suggest qualified immunity reduces the total number of counseled civil rights cases that are filed, they also suggest the doctrine does not do a good job of screening out insubstantial cases. My findings confirm that qualified immunity increases the costs and risks of constitutional litigation, contribute to mounting evidence that qualified immunity doctrine is unnecessary and ill-suited to serve its intended policy goals, illuminate the many challenges of bringing civil rights cases, and suggest how civil rights litigation might function in a world without qualified immunity.
Keywords: qualified immunity, civil rights litigation, police misconduct
JEL Classification: K41, K42
Suggested Citation: Suggested Citation