Qualified Immunity on Appeal: An Empirical Assessment

Abstract

This Article presents results from the most comprehensive study to date of the resolution of qualified immunity in the federal courts of appeals and the United States Supreme Court. By analyzing more than 4,000 appellate decisions issued between 2004 and 2015, this study provides novel insights into how courts of appeals resolve arguments for qualified immunity. Moreover, by conducting an unprecedented analysis of certiorari practice associated with each appellate opinion, this study reveals how the United States Supreme Court has exercised its discretionary jurisdiction in the area of qualified immunity.

The data presented here have significant implications for civil rights enforcement and the uniformity of federal law. They show that qualified immunity, when deployed, is a powerful tool in barring relief for plaintiffs. Moreover, they show that courts of appeals reverse decisions to deny qualified immunity far more often then they reverse decisions to grant qualified immunity, and that this asymmetric review is correlated with traditional indicators of judicial ideology, among other variables. Significantly, the data also suggest that the asymmetric review that characterizes appellate decisions is also present in the Supreme Court’s certiorari practice.