Appellate Decisions

Going After Qualified-Immunity Appeals

If qualified immunity sticks around in its present or an altered form, the rules governing qualified-immunity appeals rules will need to change.

July 2, 2020

By Bryan Lammon

Qualified immunity makes it especially—and unjustifiably—difficult for plaintiffs to prevail in civil-rights suits. And the special appellate procedures that accompany qualified immunity ensure that litigating those suits will be complicated, expensive, and time consuming. Defendants have a right to appeal from the denial of immunity. That right—standing alone—is an immense procedural hurdle for plaintiffs. It gets worse; courts have steadily expanded the scope and availability of these appeals in ways that can grind civil-rights litigation to a halt.

Efforts are afoot to reform or abolish qualified immunity. And for good reason. But the prospects for change are uncertain. So long as qualified immunity remains in its present or an altered form, there is another tactic worth considering: going after the appeals. In a series of recent posts, I have explored the doctrinal and practical problems of qualified-immunity appeals. Here, I bring those posts and other sources together to suggest that reforming qualified-immunity appeals should at least be considered alongside efforts at reforming or abolishing the substantive defense. I don’t know what the best strategy for attacking qualified immunity is. But if qualified immunity sticks around, we need to fix the appeals.

The Current Push to End Qualified Immunity

Qualified immunity is terrible. It hinders government accountability and prevents plaintiffs from recovering for government misconduct. It also has a shaky historical foundation and likely fails to achieve its purported policy goals. Efforts are accordingly afoot—in Congress, in the courts, and in local government—to reform or even do away entirely with qualified immunity.

The prospects of reform are uncertain. Several recent cert petitions asked the Supreme Court to abolish qualified immunity. But the Court denied cert on all of them. The House of Representatives has passed a bill that would abolish qualified immunity for law enforcement officers. But it faces opposition in the Senate and the administration. State and local governments could effectively reform immunity by not seeking it. But local efforts mean change would not occur everywhere.

The Problematics of Qualified-Immunity Appeals

Given the uncertain prospects of reforming the qualified-immunity defense, it’s worth at least considering other tactics. One potential avenue for reform efforts are qualified-immunity appeals. These appeals are theoretically, doctrinally, and practically flawed. And they impose wholly unacceptable costs on civil-rights litigation.

Theoretical Flaws: Qualified Immunity Fails, and So Do Qualified-Immunity Appeals

Let’s take theory first. Qualified-immunity itself purportedly exists to protect government officials from the burdens and uncertainties of litigation. The thought is that shielding them from these normal costs of litigation ensures government officials carry out their duties without being unduly deterred by a fear of litigation. Qualified-immunity appeals exist to further this protection. Because immunity is a protection from litigation itself, the wrongful denial of immunity cannot be remedied in an appeal from a final judgment. At that point, the official has incurred all of the burdens and uncertainties that qualified immunity is meant to prevent. So if the wrongful denial of qualified immunity is to be corrected at all, that correction must be immediate.

Or so the reasoning goes. As Joanna Schwartz has shown, qualified immunity rarely protects government officials from litigation. Even when qualified immunity is granted on some claims, other claims—for which immunity was denied or not available—still proceed. And qualified immunity might prolong litigation; motions seeking immunity, followed by interlocutory appeals pushing the same arguments, can take longer to resolve than a trial.

If immunity rarely protects government officials from litigation, then there is rarely a need need to vindicate that immunity in an immediate appeal. That is, if the protection itself is flawed, there is no social good served by addressing immunity issues in an immediate appeal. We normally wait until the end of district court proceedings before allowing an appeal. We deviate from that rule when the costs of delaying an appeal are especially great (and occasionally when the benefits of delaying an appeal are especially small). With qualified-immunity appeals serving little or no social good, they lose any theoretical justification for an immediate appeal.

For more on theoretical flaws, see Schwartz’s article (linked above) and Michael Solimine’s essay on qualified-immunity appeals.

Doctrinal Flaws: Mitchell v. Forsyth Was Wrong

The doctrinal foundation for qualified-immunity is similarly weak. In Mitchell v. Forsyth, the Supreme Court held that denials of qualified immunity are appealable under the collateral-order doctrine. As I wrote a few weeks ago, that decision was—at best—a stretch. The collateral-order doctrine allows immediate appeals from decisions that are (among other things) completely separate from the merits. Qualified immunity is not terribly separate from the merits of the civil-rights claims. Evaluating immunity requires considering much of the same facts and law that govern the underlying claims.

There’s too much overlap. And that overlap creates the problems that the separateness requirement is supposed to avoid. First, different appellate panels might tread similar ground in separate appeals: one from the denial of immunity and, if that denial is affirmed, after a final judgment. Second, interlocutory qualified-immunity appeals can grind district court proceedings to a halt. Due to the closeness of immunity and the merits of the plaintiff’s claims, district courts often stay their proceedings while the appeal is pending. Delay almost inheres in qualified-immunity appeals.

The Supreme Court thus fudged the analysis and shoehorned qualified-immunity appeals into the collateral-order doctrine. The fit has never been pretty. For more on doctrinal flaws, see my above-linked post, Solimine’s above-linked essay, and pages 854–56 of Alexandra Lahav’s article Procedural Design.

Practical Flaws: The Ever-Expanding Scope of Qualified-Immunity Appeals

Even if some variation on interlocutory qualified-immunity appeals could be justified, their present form cannot. The right to appeal—standing alone—is a unique procedural right for defendants that can halt district court proceedings and impose immense costs on plaintiffs. On top of that, courts have steadily expanded the scope and availability of qualified-immunity appeals in ways that add difficulty, expense, and delay to civil-rights suits with few (if any) offsetting benefits. Mitchell appeared to envision a rather Spartan appeal limited to the core qualified-immunity issues: do the plaintiff’s facts (as pleaded or supported by the summary-judgment record) make out a violation of federal law, and was that violation clearly established? But the intervening 35 years have seen a variety of issues added to these appeals, such as the plausibility of the pleadings, the availability of a claim against a federal defendant, and whether something in the summary-judgment record blatantly contradicts the plaintiff’s version of events. Defendants can take multiple appeals from the denial of immunity. And municipal defendants can tag along to raise their own issues. Further, the one seeming limit on qualified-immunity appeals—Johnson v. Jones’s prohibition on reviewing the genuineness of fact disputes—has been undermined and ignored.

All of these developments mean that plaintiffs litigating a civil-rights suits can expect one (or more) interlocutory appeals before reaching trial or a settlement. And those interlocutory appeals are far from straightforward; plaintiffs must navigate the intricate jurisdictional rules and address a variety of issues that do little or nothing to further qualified immunity’s purported purposes. So even if there should be some interlocutory review of denials of immunity, the current regime is not the way to do so.

For more on practical flaws, see pages 1905–17 of Karen Blum’s article Qualified Immunity: Time to Change the Message, my forthcoming article Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals, and my post The Expansion of Qualified-Immunity Appeals.

Some Solutions

Should qualified immunity stick around in its current or an altered form, the appeals need to change. Several alternatives exist.

Big Picture Reforms

One option—which could be pursued through Congressional action, court decision, or rulemaking—would be to narrow the scope and availability of qualified-immunity appeals. Defendants could take only one interlocutory qualified-immunity appeal in an action. And when they do, courts limit the appeal to the core qualified-immunity issues: do the facts (as pleaded or supported by the summary-judgment record) make out a clearly established violation of federal law? To streamline the appeals, district courts could be required to articulate the facts that they take as true (from the pleadings or the record) in denying immunity. The court of appeals would then be limited to those facts. Everything else is off of the table. If some other issue merits immediate appellate review, defendants can use other appropriate avenues for interlocutory review like 28 U.S.C. § 1292(b) or mandamus.

Another option (which could be combined with the above narrowing) would be to make qualified-immunity appeals discretionary. Like interlocutory appeals from class-certification decisions, defendants would have a short window of time to seek permission to appeal the denial of qualified immunity. While that motion was pending, district court proceedings would not normally be stayed. This reform would focus qualified-immunity appeals on those that truly merit immediate review. And discretionary appeals would hopefully cut back on defendants taking immediate appeals to delay litigation or impose costs on plaintiffs. A switch to discretion would require Congressional action or rulemaking.

Finally, we might do away with qualified-immunity appeals entirely. It’s not at all clear that denials of qualified immunity merit immediate review or that any benefits of immediate appeals outweigh the difficulty, expense, and delay that they add to civil-rights suits. The Supreme Court could accordingly overrule Mitchell v. Forsyth. Or Congress could abrogate it. And perhaps even the Rules Committee could do away with it.

For more on wholesale reforms, including the possibility of rulemaking in this area, see my post Alternatives to Qualified-Immunity Appeals.

Narrower Reforms

There are also some narrower tactics that litigants could pursue in individual cases.

For example, when defendants try to dispute the factual basis for assessing immunity—a regular and inexcusable occurrence—plaintiffs should consider moving for sanctions. The law on this issue should be clear. In the penultimate sentence of Johnson v. Jones—the decision that set the general scope of qualified-immunity appeals—the Supreme Court said exactly what was within that scope:

[W]e hold that a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a “genuine” issue of fact for trial.

Granted, a few narrow exceptions to that general rule exist. But when defendants appeal only to dispute the facts (and don’t expressly invoke one of the narrow exceptions), the appeal is frivolous. Motions to dismiss these appeals aren’t enough; these motions can be carried with the case, requiring a full briefing and perhaps even oral argument. Nor is the occasional talking-to at oral argument a sufficient deterrent. Defendants continue to flout the jurisdictional limits on qualified-immunity appeals and waste everyone’s time. Plaintiffs should start considering seeking sanctions. And courts should consider granting them.

Relatedly, plaintiffs could push courts of appeals to adopt the Third Circuit’s Forbes rule. In Forbes v. Township of Lower Merion—a decision authored by then-Judge Alito—the Third Circuit created a supervisory rule for all cases in which a district court denied qualified immunity due to a genuine dispute of material facts:

So that we can carry out our review function without exceeding the limits of our jurisdiction under Johnson v. Jones, we will henceforth require the District Courts to specify those material facts that are and are not subject to genuine dispute and explain their materiality.

The Forbes rule keeps courts of appeals within the jurisdictional limits in qualified-immunity appeals. And it can streamline those appeals, clearly spelling out the factual basis for assessing immunity. Other courts of appeals should adopt the Forbes rule.

Finally, when municipalities try to appeal alongside individual defendants, plaintiffs should consider moving to immediately dismiss those appeals. This municipal piggybacking adds an additional party with its own issues to an interlocutory appeal for no good reason.

This is, admittedly, a tough change. Most courts of appeals have decisions holding that municipalities can piggyback on qualified-immunity appeals so long as the individual defendant did not violate the constitution. It’s a bad rule. But it’s entrenched. Still, allowing municipal piggybacking makes qualified-immunity appeals more complicated with no offsetting benefits. It needs to end.

For more on these issues, see the following posts: