Are Interlocutory Qualified Immunity Appeals Lawful?

94 Notre Dame L. Rev. Online 169 (2019)

16 Pages Posted: 10 Sep 2018 Last revised: 11 Jun 2019

See all articles by Michael Solimine

Michael Solimine

University of Cincinnati - College of Law

Date Written: August 30, 2018

Abstract

For half a century the Supreme Court has held that defendants in civil rights actions can avoid monetary liability if they demonstrate a qualified immunity for their actions. And for thirty years, the Court has held that district court denials of the qualified immunity defense are immediately appealable under the collateral order exception to the final order requirement. Controversial from the start, the qualified immunity defense has recently come under renewed stress, with calls from individual Justices and by leading voices in academia to either significantly modify or even abolish the defense. While primarily dealing with substantive aspects of the defense, this questioning also suggests a revisiting of the status quo on defendants being able to immediately appeal denial of the defense, a task undertaken by this Essay. After briefly setting out the status quo of the qualified immunity defense, it argues that the decisions permitting immediate appealability are dubious on doctrinal, functional, and institutional grounds. It further argues that the decisions should either be overruled or significantly limited, and that the Court should leave it to the rule-making process, rather than case law, to carve out any exceptions to the presumption that denial of such a defense is not immediately appealable.

Keywords: qualified immunity defense, civil rights, immediate appeal, immediate appealability, collateral order exception

JEL Classification: K4, K40, K41

Suggested Citation

Solimine, Michael, Are Interlocutory Qualified Immunity Appeals Lawful? (August 30, 2018). 94 Notre Dame L. Rev. Online 169 (2019). Available at SSRN: https://ssrn.com/abstract=3241587

Michael Solimine (Contact Author)

University of Cincinnati - College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-0102 (Phone)
513-556-1236 (Fax)

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