New Article on Reforming Qualified-Immunity Appeals

Although there is a concerted effort to reform or abolish qualified immunity, the prospects of doing so are uncertain. In a new article, I argue that if if qualified immunity remains in its current or a similar form, reformers should target qualified-immunity appeals. Although courts and commentators have occasionally criticized qualified-immunity appeals, they often fail to see how much damage these appeals have done. This article reveals the full costs of qualified-immunity appeals, which are an immense source of complexity, expense, and delay in civil-rights litigation.

I’ve written a lot about qualified-immunity appeals over the last few years. This article marks the culmination of that work. It provides new empirical data on the incidence, procedural posture, and outcome of qualified-immunity appeals. It exhaustively details the ways in which federal courts have expanded the scope and availability of these appeals. It explains that these expansions add complexity, expense, and delay to civil-rights litigation with little or no offsetting benefit. And it argues that the only way forward is to overrule the Supreme Court’s decision in Mitchell v. Forsyth, which created the right to immediately appeal from the denial of qualified immunity.

The article is forthcoming in the Missouri Law Review. A draft is available on SSRN, and the abstract is below.

The Supreme Court held in Mitchell v. Forsyth that defendants have a right to immediately appeal from the denial of immunity. This right to appeal alone is enough to halt any progress in civil-rights litigation and add complexity to a case, and defendants can use these appeals to to wear down plaintiffs. But appeals from the denial of qualified immunity—or simply “qualified-immunity appeals”—are worse than some seem to realize. In the 35 years since Mitchell, the federal courts have steadily expanded the scope and availability of these appeals. The courts have also undermined (or let defendants undermine) the limits on those appeals. And the courts have given defendants nearly every opportunity to take qualified-immunity appeals, even if that means multiple appeals in a single action.

The judicially created and judicially managed right to appeal from the denial of qualified immunity has grown well beyond any justifiable bounds. Qualified-immunity appeals are thus one more reason to reform or abolish qualified immunity. But qualified-immunity reform is uncertain. If qualified immunity sticks around in anything resembling its current form, qualified-immunity appeals should be the next target.

In this article, I make the case for reforming qualified-immunity appeals. Using a wealth of original data on qualified-immunity appeals—including a dataset of every immediate appeal from the denial of qualified immunity from 2017 through 2020—I show how these appeals have expanded in both their scope and availability. I explain how these expansions have added complexity, expense, and delay to civil-rights litigation. I also show that these expansions serve no legitimate purpose; no reason justifies these deviations from the normal rule that appeals come at the end of district court proceedings. And I suggest that these expansions are the result of multiple procedural forces: the common-law approach to federal appellate jurisdiction, federal courts’ enthusiasm for qualified immunity, and restrictions on court access. I end with reforms. While a variety of intermediate reforms are possible, I conclude that the best way forward is to overrule Mitchell and its judicially created, judicially managed right to appeal. Congress or the Rules Committee can then decide what, if anything, should replace Mitchell. If either of those bodies acts, any replacement should be at most a limited appeal at the court of appeals’ discretion.

Bryan Lammon, Reforming Qualified-Immunity Appeals, 97 Missouri Law Review (forthcoming 2023), available at SSRN.