New Essay on Sanctioning Qualified-Immunity Appeals

With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment cannot challenge the factual basis for the immunity denial. Yet defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue that the district court erred in determining what a reasonable jury could find. Appellate courts eventually dismiss these improper appeals. But at that point, the damage is done. District courts often stay proceedings pending the appeal, which can take months or years to resolve. These appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation.

These appeals need to stop. In a new essay—forthcoming in the University of Illinois Law Review Online—I argue that courts need to start sanctioning defendants who take them. I show that the law governing these appeals is (to use a term from qualified immunity itself) clearly established and has been for decades. I illustrate the problem by cataloguing last year’s improper, fact-based qualified-immunity appeals, which unnecessarily delayed the underlying litigation by an average of 14 months. And I explain how sanctions might be the only way to stop these appeals.

The essay is titled Sanctioning Qualified-Immunity Appeals, and the abstract is below. You can download the current draft on SSRN. (If SSRN asks you to create an account before downloading the paper, there’s a link on the right to download without doing so.)

Qualified immunity is awful. But it’s not just the substantive defense that is a problem. Qualified immunity also comes with a slew of special appellate procedures that add difficulty, expense, and delay to civil-rights litigation. Defendants have a right to immediately appeal from the denial of immunity. And the federal courts have steadily expanded the scope and availability of those appeals, further ensuring that civil-rights litigation will not be quick or easy.

There is one seeming exception to the ever-expanding right to appeal from the denial of qualified immunity: Johnson v. Jones’s limit on the scope of appeals from the denial of immunity at summary judgment. Johnson holds that, with rare and narrow exceptions, the courts of appeals lack jurisdiction to second guess the factual basis for the immunity denial. They must instead take the district court’s assessment of the summary-judgment record as given and limit themselves to the core qualified-immunity issues.

This limit on the scope of appeals was supposed to simplify and streamline litigation. But defendants flout Johnson’s limits with some regularity. They appeal and—without invoking an exception to Johnson—base their arguments on facts different than those that the district court thought a reasonable jury could find. Courts eventually reject these arguments as barred by Johnson. But at that point, the damage has been done. The defendant has created wholly unnecessary work for plaintiffs and delayed any progress in the suit for a year or more.

Should qualified immunity stick around in its current or an altered form, it will be imperative to reform the rules governing qualified-immunity appeals. Foreclosing defendants’ abusive, fact-based qualified-immunity appeals will be a central part of that reform. But in the interim, something must be done. And that something is sanctions. I found few instances in which courts of appeals sanctioned defendants for violating Johnson. That needs to change. These appeals are frivolous. And the defendants who take them should be sanctioned.

Sanctioning Qualified-Immunity Appeals, University of Illinois Law Review Online (forthcoming 2021), available at SSRN.