Qualified Immunity's Selection Effects

78 Pages Posted: 6 Feb 2019 Last revised: 1 Apr 2020

See all articles by Joanna C. Schwartz

Joanna C. Schwartz

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

Date Written: February 6, 2019


The Supreme Court has described the “driving force” behind qualified immunity to be its power to dismiss “insubstantial” cases before discovery and trial. Yet in a prior study of 1183 Section 1983 cases filed in five federal districts around the country, I found that just seven (0.6%) were dismissed at the motion to dismiss stage and just thirty-one (2.6%) were dismissed at summary judgment on qualified immunity grounds. These findings undermine assumptions about the role qualified immunity plays in filed cases, but leave open the possibility that qualified immunity serves its intended role by screening out insubstantial cases before they are ever filed. Indeed, some have raised this possibility as reason to maintain the status quo.

This Article tests this alternative justification for qualified immunity. It reports the results of the largest and most comprehensive study to date of the role qualified immunity doctrine plays in attorneys’ decisions to file civil rights suits, combining my prior study of 1183 cases with surveys of ninety-four 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 cost, risk, and complexity of constitutional litigation, but has a more equivocal effect on attorneys’ case selection decisions. Attorneys do not reliably decline cases vulnerable to attack or dismissal on qualified immunity grounds. And when lawyers do decline cases because of qualified immunity, they do not appear to be screening out “insubstantial” cases under any plausible definition of the term. These findings enrich our understanding of the role qualified immunity plays in civil rights cases, contribute to mounting evidence that qualified immunity doctrine fails to achieve its intended policy goals, and support growing calls to better align doctrine with the realities of constitutional litigation.

Keywords: qualified immunity, civil rights, case selection, attorneys' fees

JEL Classification: K41

Suggested Citation

Schwartz, Joanna C., Qualified Immunity's Selection Effects (February 6, 2019). 114 Northwestern University Law Review 1101 (2020), Available at SSRN: https://ssrn.com/abstract=3330056

Joanna C. Schwartz (Contact Author)

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

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