The Year in Fact-Based Qualified-Immunity Appeals: 2024

The Year in Fact-Based Qualified-Immunity Appeals: 2024

I’ve frequently written about the problem of fact-based qualified-immunity appeals both on this website and in my research. I recently decided to collect some new data on how much needless delay these appeals add to civil-rights litigation.

I had done something similar a few years ago when writing about the need to sanction defendants for taking fact-based qualified-immunity appeals. I found that in 2020, defendants took at least 44 qualified-immunity appeals in which their arguments depended in whole or in part on challenging the factual basis for the immunity denial. Those appeals took an average of 440 days to resolve.

My findings for 2024 were almost the same. Defendants took at least 43 of these appeals in that year. And those appeals took an average of 431 days to resolve.

Courts need to prevent defendants using fact-based qualified-immunity appeals to add cost and delay to civil-rights litigation. I remain convinced that the way to do so is through sanctions.

The Problem of Fact-Based Qualified-Immunity Appeals

Defendants have a right to appeal from the denial of qualified immunity. But the scope of those appeals is limited when the district court denies immunity at summary judgment. With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment can dispute only the materiality of any fact disputes. They cannot argue that the district court erred in concluding that fact disputes were genuine. That is, they cannot dispute the district court’s determination of what facts a reasonable jury could find.

But defendants regularly flout this limit. They appeal from the denial of immunity and 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 court often stay proceedings pending the appeal, which can take months or years. These improper appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation.

Some New Data

I have a assembled a little data on these fact-based qualified-immunity appeals. In a paper arguing for sanctioning qualified-immunity appeals, I identified 44 cases from 2020 in which a court of appeals rejected a defendant’s attempts to challenge the factual basis for an immunity denial. Those appeals averaged 440 days from the filing of the notice of appeal to the appellate decision.

I recently decided to update that data. For over a year, I have been listing fact-based qualified-immunity appeals in my regular appellate-jurisdiction roundups. Using those cases, I identified another year chock full of improper appeals and delayed district court proceedings.

A few notes before diving into the data:

• The cases were collected as part of my regular reading of appellate opinions for appellate-jurisdiction issues. I included any case in which a defendant’s argument at least partially (and often entirely) challenged the factual basis for a qualified-immunity denial. It’s possible that I missed some decisions, either as an oversight or because the decision never made it onto Westlaw (it happens).
• In a small change from my 2020 study, I counted the time between the docketing of the appeal and the decision rejecting the appeal. This likely under-counted the time, if only slightly. A few days can pass between the filing of a notice of appeal in a district court and the opening of the appellate docket. And proceedings in the district court might not resume until some time after the appellate decision.
• I did not check the district court dockets to see if all proceedings were stayed during the appeal, and I cannot comment on what (if anything) happened in the district court while the appeal was pending.
• Courts sometimes affirm the denial of qualified immunity when a defendant challenge the factual basis for the appeal. The proper disposition in these cases is probably a dismissal, but the difference is largely meaningless for my purposes.

So what did I find?

2024 saw 43 qualified-immunity appeals in which the defendants challenged the factual basis for the denial of qualified immunity. On average, these appeals took 431 days to resolve (a little over 14 months). I’ve collected the data in a table at the end of this post.

These numbers are nearly identical to what I found in 2020. So it looks like fact-based qualified-immunity appeals are still a problem.

The Solution: Sanctions

I have argued that the solution to the problem of fact-based qualified-immunity appeals is sanctions. The law has long been clear: defendants cannot challenge the factual basis for an immunity denial without invoking one of the rare exceptions that would allow them to do so. So many of these appeals are frivolous.

Courts need to deter these appeals. Harsh words are oral argument or in an opinion are not enough. It’s time to make defendants start paying for the cost and delay they needlessly add to civil rights litigation.