Antitrust and Deregulation

Malley v. Briggs, 475 U.S. 335, 341 (1986).

See Kit Kinports, The Supreme Court’s Quiet Expansion of Qualified Immunity, 100 Minn. L. Rev. Headnotes 62, 64-65 (2016); see also infra note 183 and accompanying text.

See Scott Michelman, Taylor v. Barkes: Summary Reversal Is Part of a Qualified Immunity Trend, SCOTUSblog (June 2, 2015, 11:17 AM), http://www.scotusblog.com/2015/06‌ /taylor-v-barkes-summary-reversal-is-part-of-a-qualified-immunity-trend [http://perma.cc‌ /86EN-KSLT]; see also William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. (forthcoming 2018) (manuscript at 45), http://ssrn.com/abstract=2896508 [http://perma.cc /ZF4C-N3DR] (observing that the Supreme Court found officers violated clearly established law in just two of the twenty-nine qualified immunity cases decided by the Supreme Court since 1982). In one of its most recent qualified immunity decisions, White v. Pauly, the Supreme Court vacated the lower court’s decision and remanded for further proceedings. But, in so doing, the Court explained that the defendant “did not violate clearly established law . . . [o]n the record described by the Court of Appeals.” 137 S. Ct. 548, 552 (2017).

City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 n.3 (2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982)).

Noah Feldman, Supreme Court Has Had Enough with Police Suits, Bloomberg View (Jan. 9, 2017, 3:08 PM), http://www.bloomberg.com/view/articles/2017-01-09/supreme-court-has -had-enough-with-police-suits [http://perma.cc/M88T-52VJ].

See Martin A. Schwartz, Section 1983 Litigation, Fed. Jud. Ctr. 143 (2014), http://www.fjc‌.gov/sites/default/files/2014/Section-1983-Litigation-3D-FJC-Schwartz-2014.pdf [http://‌perma.cc/JMQ9-92XN] (describing qualified immunity as “the most important defense” in Section 1983 litigation, and stating that “courts decide a high percentage of Section 1983 personal-capacity claims for damages in favor of the defendant on the basis of qualified immunity” (footnote omitted)); see also Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 8.5, Westlaw (database updated Aug. 2017) (“Under Harlow, defendants on summary judgment motion frequently will be dismissed without a consideration of the merits.”); Susan Bendlin, Qualified Immunity: Protecting “All but the Plainly Incompetent” (and Maybe Some of Them, Too), 45 J. Marshall L. Rev. 1023, 1023 (2012) (“Public officials can be more certain than ever before that qualified immunity will shield them from suits for money damages even if their actions violate the constitutional rights of another.”); John C. Jeffries, What’s Wrong with Qualified Immunity?, 62 Fla. L. Rev. 851, 852 (2010) (“The Supreme Court’s effort to have more immunity determinations resolved on summary judgment or a motion to dismiss—in other words, to create immunity from trial as well as from liability—has been largely successful.” (footnote omitted)).

Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219, 1245 (2015); see also Caryn J. Ackerman, Comment, Fairness or Fiction: Striking a Balance Between the Goals of § 1983 and the Policy Concerns Motivating Qualified Immunity, 85 Or. L. Rev. 1027, 1028 (2006) (describing qualified immunity doctrine as “arguably one of the most significant obstacles for § 1983 plaintiffs”).

Karen Blum, Erwin Chemerinsky & Martin A. Schwartz, Qualified Immunity Developments: Not Much Hope Left for Plaintiffs, 29 Touro L. Rev. 633 (2013). Hope refers to Hope v. Pelzer, a 2002 Supreme Court decision denying qualified immunity to prison guards who had handcuffed the plaintiff to a hitching post. 536 U.S. 730 (2002). The decision is viewed as more “plaintiff friendly” than the Court’s subsequent qualified immunity decisions. Blum, Chemerinsky & Schwartz, supra, at 654.

See infra note 57 and accompanying text (describing the lack of empirical research concerning qualified immunity litigation practice and the justifications underlying the doctrine). For research regarding other aspects of qualified immunity doctrine, see infra notes 10, 180.

See Diana Hassel, Living a Lie: The Cost of Qualified Immunity, 64 Mo. L. Rev. 123, 145 n.106 (1999) (finding that qualified immunity was denied in 20% of federal cases over a two-year period); Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis, 36 Pepp. L. Rev. 667, 691 (2009) (finding that qualified immunity was denied in 14% to 32% of district court decisions); Greg Sobolski & Matt Steinberg, Note, An Empirical Analysis of Section 1983 Qualified Immunity Actions and Implications of Pearson v. Callahan, 62 Stan. L. Rev. 523, 545 (2010) (finding that qualified immunity was denied in approximately 32% of appellate decisions).

See Alexander A. Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the Individual Liability Model, 62 Stan. L. Rev. 809, 845 (2010).

Malley v. Briggs, 475 U.S. 335, 341 (1986).

Justice Thomas has recently criticized this approach, arguing that qualified immunity doctrine should mirror historical common law defenses. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1870-72 (2017) (Thomas, J., concurring in part and concurring in the judgment). For a discussion of this argument, and the relevance of my findings to this argument, see infra note 203 and accompanying text.

Pearson v. Callahan, 555 U.S. 223, 231 (2009).

See infra notes 33-36 and accompanying text.

Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014).

See infra notes 37-41 and accompanying text.

See infra Section I.B.

See infra Part II for a description of my study design and methodology.

See infra Tables 2 & 3 and infra note 111 and accompanying text.

See infra Table 7 (showing that qualified immunity was granted in whole in 9.1% of cases in which a qualified immunity motion was raised at the motion to dismiss stage, and was granted in part in 4.5% of such cases).

See infra Table 11 and accompanying text.

See infra Table 12 and accompanying text.

For further discussion of these possibilities, see infra notes 117-122 and accompanying text.

See infra text accompanying notes 204-205.

See infra notes 136-138 and accompanying text.

For a discussion of these critiques, see infra notes 176-185 and accompanying text.

Pearson v. Callahan, 555 U.S. 223, 231 (2009).

See infra notes 161-163 and accompanying text for a description of remaining questions about the way qualified immunity doctrine functions and the extent to which it achieves its intended goals.

Anderson v. Creighton, 483 U.S. 635, 642 n.3 (1987).

Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).

386 U.S. 547 (1967).

Id. at 555; see also Wood v. Strickland, 420 U.S. 308, 319 (1975) (“Liability for damages for every action which is found subsequently to have been violative of a student’s constitutional rights and to have caused compensable injury would unfairly impose upon the school decisionmaker the burden of mistakes made in good faith in the course of exercising his discretion within the scope of his official duties.”).

Pierson, 386 U.S. at 555.

See, e.g., Pearson v. Callahan, 555 U.S. 223, 242 (2009) (observing that qualified immunity is not available in “criminal cases and § 1983 cases against a municipality, as well as § 1983 cases against individuals where injunctive relief is sought instead of or in addition to damages”); Richardson v. McKnight, 521 U.S. 399, 412 (1997) (holding that private prison guards are not entitled to qualified immunity); Wood, 420 U.S. at 315 n.6 (“[I]mmunity from damages does not ordinarily bar equitable relief as well.”).

See Richardson, 521 U.S. at 411 (finding that private actors’ insurance “increases the likelihood of employee indemnification and to that extent reduces the employment-discouraging fear of unwarranted liability potential applicants face”); Owen v. City of Independence, 445 U.S. 622, 653 (1980) (concluding that municipalities should not be protected by qualified immunity in part because concerns about overdeterrence are “less compelling, if not wholly inapplicable, when the liability of the municipal entity is at stake”). The Court has offered little explanation why the qualified immunity defense is not available in claims for nonmonetary relief.

Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (alteration in original) (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)).

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (alteration in original) (quoting Harlow, 457 U.S. at 817).

Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009) (citation omitted).

Richardson, 521 U.S. at 411.

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)).

566 U.S. 377, 391 (2012).

Harlow, 457 U.S. at 815-16.

Id.

Id. at 817.

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (alteration in original) (quoting Harlow, 457 U.S. at 817-18).

533 U.S. 194, 201 (2001).

Id.

555 U.S. 223 (2009).

Id. at 236-37.

Id. at 237 (alteration in original) (quoting Brief of National Ass’n of Criminal Defense Lawyers as Amicus Curiae Supporting Respondent at 30, Pearson, 555 U.S. 223 (No. 07-751)).

Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985). Note that a defendant can immediately appeal a decision that the law was clearly established, but cannot immediately appeal a denial of qualified immunity made on the grounds that there exists a genuine issue of fact for trial. See Johnson v. Jones, 515 U.S. 304, 319-20 (1995).

Mitchell, 472 U.S. at 525.

Id. at 526.

Id.

See Malley v. Briggs, 475 U.S. 335, 341 (1986) (“The Harlow standard is specifically designed to ‘avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment,’ and we believe it sufficiently serves this goal.” (emphasis added)). Scholars appear to agree. See supra note 6 and accompanying text.

Alan K. Chen, The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law, 47 Am. U. L. Rev. 1, 102 (1997) (“Presently, there is no empirical foundation for the advocates of the present qualified immunity doctrine or its critics. While the Court has consistently hypothesized that significant social costs are engendered by § 1983 and Bivens litigation against individual government officials, it has never relied on empirical data concerning the impact of constitutional tort litigation on officials’ actual behavior. Similarly, while other commentators also have observed that qualified immunity litigation may generate substantial social costs, they have offered no supporting empirical data either.” (footnotes omitted)).

See supra notes 10-12 and infra notes 179-180 and accompanying text.

Richard H. Fallon, Jr., Asking the Right Questions About Officer Immunity, 80 Fordham L. Rev. 479, 500 (2011).

See, e.g., Reinert, supra note 11, at 832 n.126 (citing Lee Epstein et al., The Judicial Common Space, 23 J.L. Econ. & Org. 303, 312 fig.4 (2007)).

John C. Jeffries, Jr., The Liability Rule for Constitutional Torts, 99 Va. L. Rev. 207, 250 n.151 (2013) (quoting Elizabeth J. Normal & Jacob E. Daly, Statutory Civil Rights, 53 Mercer L. Rev. 1499, 1556 (2002)); see also Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (“We have repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.” (citation omitted)); Charles R. Wilson, “Location, Location, Location”: Recent Developments in the Qualified Immunity Defense, 57 N.Y.U. Ann. Surv. Am. L. 445, 447-48 (2000) (describing the Eleventh Circuit as having a very restrictive view and other circuits, including the Third Circuit, as having a broader view of what constitutes “clearly established” law).

See Judicial Facts and Figures, Admin. Off. U.S. Cts. tbl.4.2 (Sept. 30, 2012), http://‌http://www.uscourts.gov/sites/default/files/statistics_import_dir/Table402_6.pdf [http://perma‌.cc/697A-JWVH].

For example, the Philadelphia and Houston Police Departments are both large, with between 5,000 and 7,000 officers; the Cleveland Police Department, San Francisco Police Department, and Jacksonville Sheriff’s Office are midsized, with between 1,600 and 2,000 officers; the Orlando Police Department and Oakland Police Department each have between 750 and 800 officers; and all five districts have smaller agencies. See Bureau of Justice Statistics, Census of State and Local Law Enforcement Agencies (CSLLEA), Nat’l Archive Crim. Just. Data (2008) [hereinafter BJS Law Enforcement Census Data], http://www.icpsr‌ .umich.edu/icpsrweb/NACJD/studies/27681 [http://perma.cc/MLQ3-W2AH].

Most empirical studies examining qualified immunity have relied on decisions available on Westlaw. See sources cited supra note 10 and infra note 180. One notable exception is Alexander Reinert’s study of Bivens dockets. See Reinert, supra note 11, at 834.

Relying on Westlaw would have significantly reduced the number of qualified immunity opinions in my dataset. There are a total of 365 district court decisions on motions raising qualified immunity in my dataset. See infra Table 6I searched on Westlaw for each of the 365 qualified immunity decisions I found on Bloomberg Law, and 178 (48.8%) of those decisions were available on Westlaw. Nineteen of fifty-six decisions (33.9%) on qualified immunity motions from the Southern District of Texas were available on Westlaw; forty-one of ninety-one (45.1%) decisions on qualified immunity motions from the Middle District of Florida were available on Westlaw; thirty-seven of sixty-one (60.7%) decisions on qualified immunity motions from the Northern District of Ohio; forty-six of seventy-six (60.5%) decisions on qualified immunity motions from the Northern District of California; and thirty-five of eighty-one (43.2%) decisions on qualified immunity motions from the Eastern District of Pennsylvania. Cf. David A. Hoffman et al., Docketology, District Courts, and Doctrine, 85 Wash. U. L. Rev. 681, 710 (2007) (finding that only 3% of all district court orders appear on Westlaw).

I chose this two-year period because it is a recent period in which most (if not all) cases have been resolved by the time of this Article’s publication.

See E-mail from Tania Wilson, Bloomberg BNA Law Sch. Relationship Manager, W. Coast, to Kelly Leong, Reference Librarian, UCLA Sch. of Law (July 8, 2016, 12:18 PM) (on file with author) (“[Bloomberg Law] ha[s] everything on PACER. We are also able to obtain docket sheets and documents via courier retrieval (which would fill in the gap of some cases not available electronically).”).

Every complainant in federal court must choose from various “Nature of Suit” codes on the “Civil Cover Sheet,” also known as Form JS 44. See Robert Timothy Reagan, The Hunt for Sealed Settlement Agreements, 81 Chi.-Kent L. Rev. 439, 452 & n.71 (2006). Code 440 designates “Other Civil Rights” actions, excluding specific categories related to voting, employment, housing, disabilities, and education. The official description for Code 440 offers, as an example, an “[a]ction alleging excessive force by police incident to an arrest.” Civil Nature of Suit Code Descriptions, U.S. Cts. (Aug. 2016), http://www.uscourts.gov/sites/default /files/js_044_code_descriptions.pdf [http://perma.cc/F8A2-7H7T]. It is possible that some plaintiffs in Section 1983 cases against state and local law enforcement did not choose Code 440. Code 550, for example, is titled “Prisoner Petitions–Civil Rights,” but its proper use is limited to suits “alleging a civil rights violation by corrections officials.” Id. Bloomberg Law separately allows users to filter using the “Cause of Action” field on the Civil Cover Sheet. But that field does not impose a limited set of options on complainants, and I found that many Section 1983 cases were not correctly designated. Accordingly, I used the nature-of-suit search.

I limited my study to state and local law enforcement agencies identified in the Bureau of Justice Statistics’ Census of State and Local Law Enforcement Agencies. See BJS Law Enforcement Census Data, supra note 63. I excluded decisions involving other types of government officials, including some government officials that perform law enforcement functions, like law enforcement employed by school districts, state correctional officers, and federal law enforcement. I have additionally excluded Section 1983 actions brought by law enforcement officials as plaintiffs. Finally, I removed duplicate filings, cases that were consolidated, and cases that were improperly brought against law enforcement agencies located outside of the five districts.

See Baude, supra note 3, at 45. In the remaining fifteen cases, two alleged constitutional violations by state corrections officials, nine alleged constitutional violations by federal law enforcement, and four asserted constitutional claims against government officials not involved in the criminal justice system. See id.

See, e.g., Joanna C. Schwartz, How Governments Pay: Lawsuits, Budgets, and Police Reform, 63 UCLA L. Rev. 1144 (2016); Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. Rev. 1023 (2010); Schwartz, supra note 16; Joanna C. Schwartz, What Police Learn from Lawsuits, 33 Cardozo L. Rev. 841 (2012) [hereinafter Schwartz, What Police Learn].

I tracked additional information as well, including whether the plaintiff was represented, the attorneys involved in the cases, and the law enforcement agencies implicated in the cases. These data are relevant to subsequent related projects I intend to undertake and are not reported in this Article.

For descriptions of my coding decisions, see, for example, infra notes 82, 87, 88, 91, 93, 98.

I looked at state court dockets available on Bloomberg Law for counties in the Northern District of California and found that very few had any information about motions filed (in the instances that they were not removed to federal court). In addition, federal constitutional cases filed in state court are at least sometimes removed to federal court. In the Northern District of California, fifty-five of the 248 cases filed during the study period—22.2%—were initially filed in state court and removed to federal court. In the Northern District of Ohio, fifty-nine of the cases were removed from state court, which constitutes 34.3% of the 172 cases filed in federal district court over those two years. In the Southern District of Texas, twenty-seven cases were removed from state court, amounting to 20.6% of the 131 total filings in federal district court. In the Eastern District of Pennsylvania, sixty-three of the cases were removed from state court, which constitutes 15.5% of the 407 cases filed in federal court over these two years. In the Middle District of Florida, sixty of the cases were removed from state court, which constitutes 26.7% of the 225 cases filed in federal court over these two years. Of course, these figures do not capture how many cases were filed in state court but were not removed.

See Jeffries, supra note 6, at 859-61.

For further discussion of these remaining questions about the role of qualified immunity in constitutional litigation, see infra text accompanying notes 118-122.

See infra notes 162-163 and accompanying text.

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982)).

In some instances, motions for summary judgment may be made before the parties have engaged in full-fledged discovery, either because the parties will attach documentary evidence to their Rule 12 motion and the court will convert the motion to one for summary judgment, or because the parties will engage in partial discovery sufficient only to address the qualified immunity question. For further discussion of the frequency with which defendants in my dataset moved for summary judgment without discovery, see infra note 86 and accompanying text.

It is possible that a court could deny a qualified immunity motion in part or whole, but the motion could nevertheless influence the courts’ other rulings regarding discovery or other pretrial matters. I have not endeavored to measure these possible secondary effects of denied qualified immunity motions.

See supra notes 35-36 and accompanying text.

In some of these instances, plaintiffs apparently intended to sue individual officers (indicated by the fact that they named Doe defendants) but were ultimately unable to identify the officers. When Doe defendants are identified in the complaint and subsequently named, I count these as cases against individual defendants; when Doe defendants are named but their true identities are never identified, I count these as cases only against the municipality, as the Doe defendants could not raise a qualified immunity defense unless they were identified. In other instances, plaintiffs might have intentionally named only the municipality.

See 28 U.S.C. § 1915(e)(2) (2012). A total of seventy-one cases were dismissed on these grounds. Note that district courts could exercise this power based on a belief that the defendants were entitled to qualified immunity. However, none of these § 1915(e) dismissals referenced or appeared to rely on qualified immunity as a basis for the decision.

Because qualified immunity is an affirmative defense, government defendants may also raise qualified immunity in their answers. See Fed. R. Civ. P. 8(c)(1). I did not track the frequency with which government defendants raised qualified immunity in their answers because my focus is on the frequency with which qualified immunity leads to case dismissal, but I found no instances in which a defense raised in an answer led to dismissal without a separate motion raising the defense.

Even more difficult to decipher is the role qualified immunity might play in jury deliberations. Although qualified immunity is a question of law, juries may be called upon to resolve factual disputes relevant to qualified immunity and have been allowed to decide qualified immunity in some instances. See, e.g., Mesa v. Prejean, 543 F.3d 264, 269 (5th Cir. 2008) (“The issue of qualified immunity is a question of law, but in certain circumstances where ‘there remain disputed issues of material fact relative to immunity, the jury, properly instructed, may decide the question.’” (citation omitted)); Hale v. Kart, 396 F.3d 721, 728 (6th Cir. 2005) (“[A] court can submit to the jury the factual dispute with an appropriate instruction to find probable cause and qualified immunity if the factual inquiry is answered one way and to find probable cause and qualified immunity lacking if the inquiry is answered in another way.”). This study does not attempt to measure the frequency with which qualified immunity is invoked in jury instructions, or the frequency with which juries’ decisions are influenced by such instructions.

I located five cases in my dataset—two from the Southern District of Texas and one each from the Northern District of California, Eastern District of Pennsylvania, and Middle District of Florida—in which defendants appear to have moved for summary judgment without first conducting discovery. See Egan v. Cty. of Del Norte, No. 1:12-cv-05300 (N.D. Cal. Oct. 11, 2012); Goodarzi v. Hartzog, No. 4:12-cv-02870 (S.D. Tex. Sept. 25, 2012); Rollerson v. City of Freeport, No. 4:12-cv-01790 (S.D. Tex. June 14, 2012); Kline v. City of Philadelphia, No. 2:11-cv-04334 (E.D. Pa. July 6, 2011); Hill v. Lee Cty. Sheriff’s Office, No. 2:11-cv-00242 (M.D. Fla. Apr. 27, 2011). In two of these cases, Rollerson and Hill, the defendants brought a motion to dismiss and simultaneously moved for summary judgment in the alternative; the courts in both cases granted defendants’ motions to dismiss without addressing the summary judgment motions.

There were a handful of instances in which different defendants contemporaneously filed separate motions to dismiss or summary judgment motions raising qualified immunity. If the motions were filed at approximately the same time and were resolved by a single district court opinion, I coded them as a single motion because I believe it more accurately reflects the time needed by the parties and the court to resolve each qualified immunity issue as it arose.

See infra Figure 1. I have included in my count of motions to dismiss and for summary judgment instances in which the municipality moved to dismiss but the individual defendant(s) did not. One could take issue with this choice, as municipalities are not protected by qualified immunity. Yet I included these motions in my calculation because they reflect opportunities in which the law enforcement defendants moved to dismiss but failed to raise qualified immunity in the motion.

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (setting out the plausibility pleading standard); Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding that a plaintiff seeking damages for an unconstitutional conviction or sentence must have that conviction or sentence declared invalid before a Section 1983 claim can proceed).

Qualified immunity was raised in 64.4% of summary judgment motions filed in the Eastern District of Pennsylvania, 76.7% of summary judgment motions filed in the Southern District of Texas, 79.8% of summary judgment motions filed in the Northern District of California, 81.0% of summary judgment motions filed in the Middle District of Florida, and 81.8% of summary judgment motions filed in the Northern District of Ohio.

I have coded decisions in a way that focuses on the role of qualified immunity in the decision. If a defendant’s motion raises multiple arguments and qualified immunity is granted but all other bases for the motion are denied, I coded that decision as granted on qualified immunity grounds. Conversely, if a defendant’s motion raises multiple arguments and qualified immunity is denied and all other bases for the motion are granted, I coded that decision as denied on qualified immunity. Included in the “QI granted in part” row are decisions in which one or more defendants who have moved to dismiss on qualified immunity grounds were awarded qualified immunity but qualified immunity was denied for some defendants or claims.

This finding is consistent with findings in other qualified immunity studies described supra note 10, even though there are significant differences in our datasets and the manner in which we coded decisions.

If a court did not specify which step of the qualified immunity analysis was dispositive, or concluded that the law was not clearly established without resolving whether a constitutional violation occurred, I coded these decisions as grants or partial grants on qualified immunity grounds. These decisions are reflected in rows two and three of Tables 6-8.

The differences in the frequency with which motions are granted or granted in part on qualified immunity grounds (rows two and three in Table 6) across the five districts are statistically significant (χ2 = 23.32, p<.001). But the differences in the frequency with which qualified immunity is denied (row one in Table 6) across the five districts are not statistically significant (χ2 = 5.15, p=.27). The differences in the frequency with which motions are granted in the alternative or granted in part on grounds other than qualified immunity (rows four, five, six, and seven in Table 6) across the five districts are also not statistically significant (χ2 = 5.58, p=.23).

See supra Tables 7 & 8. Because the three qualified immunity motions raised at or after trial are not included in these tables, there are a total of 437 motions included in these two tables—three fewer than the 440 motions included in Table 6.

See supra Section I.B.3.

There was one case in the docket dataset in which a defendant appealed a qualified immunity decision at the end of the case. The jury verdict in the case was affirmed with no mention of qualified immunity. See Ayers v. City of Cleveland, 773 F.3d 161 (6th Cir. 2014).

I have not tracked appeals of motions granted on qualified immunity in the alternative, granted in whole or in part on other grounds, or granted based on unclear reasoning.

If I included these cases in my count, the total number of cases dismissed on qualified immunity grounds would increase from thirty-eight to seventy-one: a total of fifteen cases in the Southern District of Texas, twenty-three cases in the Middle District of Florida, twelve cases in the Northern District of Ohio, eight cases in the Northern District of California, and thirteen cases in the Eastern District of Pennsylvania. This amounts to 7.3% of all cases in which qualified immunity could be raised, and 6.0% of all the cases in my dataset.

See, e.g., Daleo v. Polk Cty. Sheriff, No. 8:11-cv-2521 (M.D. Fla. Nov. 7, 2011).

See, e.g., Tarantino v. Canfield, No. 5:12-cv-0434 (M.D. Fla. Aug. 3, 2012); Roberts v. Knight, No. 4:12-cv-1174 (S.D. Tex. Apr. 18, 2012); Brivik v. Law, No. 8:11-cv-2101 (M.D. Fla. Sept. 15, 2011); Terrell v. City of La Marque, No. 3:11-cv-0229 (S.D. Tex. May 16, 2011).

See, e.g., Jones v. City of Lake City, No. 3:11-cv-1210 (M.D. Fla. Dec. 6, 2011); Snowden v. City of Philadelphia, No. 2:11-cv-5041 (E.D. Pa. Aug. 5, 2011); Castillo v. City of Corpus Christi, No. 2:11-cv-0093 (S.D. Tex. Apr. 5, 2011); Kelley v. Papanos, No. 4:11-cv-0626 (S.D. Tex. Feb. 22, 2011).

See, e.g., McKay v. City of Hayward, No. 3:12-cv-1613 (N.D. Cal. Mar. 30, 2012); Stephenson v. McClelland, No. 4:11-cv-2243 (S.D. Tex. June 15, 2011). There are eight cases in my dataset—six in the Middle District of Florida, one in the Northern District of Ohio, and one in the Eastern District of Pennsylvania—in which the federal claims were dismissed on qualified immunity grounds and the state law claims were remanded to state court. I have sought information about whether plaintiffs continued to litigate these claims in state court by contacting the plaintiffs’ attorneys in these cases. Attorneys in two cases confirmed that they pursued the state claims in state court, and both cases resulted in settlements in state court. See E-mail from Nicholas Noel, attorney for plaintiffs in O’Neill v. Kerrigan, No. 5:11-cv-3437 (E.D. Pa. June 5, 2011), to author (Mar. 2, 2017, 12:18 PM) (on file with author) (confirming that the case was refiled in state court and settled after the federal claims were dismissed on qualified immunity grounds); E-mail from Jerry Theophilopoulos, attorney for plaintiffs in Merricks v. Adkisson, No. 8:12-cv-1805 (M.D. Fla. Aug. 10, 2012), to author (Mar. 13, 2017, 6:50 AM) (on file with author) (confirming that plaintiff refiled the case in state court after the federal claims were dismissed on qualified immunity grounds, and that the case settled at mediation for $30,000). Attorneys in two cases confirmed that the cases were not refiled in state court. See E-mail from Cynthia Conlin, attorney for plaintiffs in Olin v. Orange Cty. Sheriff, No. 6:12-cv-1455 (M.D. Fla. Sept. 25, 2012), to author (Mar. 2, 2017, 10:31 AM) (on file with author) (reporting that plaintiff did not pursue state law claims in state court after federal claims were dismissed on qualified immunity grounds); E-mail from W. Cort Frohlich, attorney for plaintiffs in Spann v. Verdoni, No. 8:11-cv-0707 (M.D. Fla. Apr. 4, 2011), to author (Mar. 2, 2017, 10:15 AM) (on file with author) (reporting that the state claims were not refiled in state court after summary judgment was granted on the federal claims). I sought but did not receive information about the other four cases.

See, e.g., McKay, No. 3:12-cv-1613; Porter v. City of Santa Rosa, No. 3:11-cv-4886 (N.D. Cal. Oct. 3, 2011); Terrell, No. 3:11-cv-0229.

See supra note 42 and accompanying text (describing the Court’s concerns about burdens on government officials who are not named defendants).

These findings are consistent with another study that used dockets to track case outcomes in Bivens actions. See Reinert, supra note 11, at 843 (finding qualified immunity to be “the basis for a dismissal in only 5 out of the 244 complaints studied”).

See id. at 812-13 n.13 (describing the common definition of plaintiff “success” in similar studies). Even those who adopt this standard definition recognize that it is likely over-inclusive—at least some of these cases are settled or withdrawn on terms unfavorable to the plaintiff. See id. Note that I am including the three split verdicts in my count of plaintiff successes.

Stewart J. Schwab & Theodore Eisenberg, Explaining Constitutional Tort Litigation: The Influence of the Attorney Fees Statute and the Government as Defendant, 73 Cornell L. Rev. 719, 730 (1988) (finding that “[n]onprisoner constitutional tort cases succeed[ed] about half the time” in their study of filings in three districts); Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 Cornell L. Rev. 641, 682 (1987) (finding that “[t]he success rate for counseled cases (which eliminates nearly all prisoner cases) is about one-half” in their study of the Central District of California).

See supra Table 12; see also infra text accompanying note 115 (describing this variation).

See supra note 6 and accompanying text.

There was a total of 979 cases in which qualified immunity could be raised, and defendants raised motions to dismiss or for judgment on the pleadings on qualified immunity grounds in 136 of those cases. See supra Tables 2 & 3.

See supra Table 4 (showing that 64.3% of qualified immunity motions were made at summary judgment); supra Table 8 (showing that 13.8% of qualified immunity motions made at summary judgment were granted).

See supra note 79 and accompanying text.

Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness, 23 Wm. & Mary Bill Rts. J. 913, 925 (2015) (“One has to look hard to find some doctrinal consistency or predictability in the case law and the circuits are hopelessly conflicted both within and among themselves.” (footnotes omitted)); Jeffries, supra note 6, at 852 (“[D]etermining whether an officer violated ‘clearly established’ law has proved to be a mare’s nest of complexity and confusion. The circuits vary widely in approach, which is not surprising given the conflicting signals from the Supreme Court.”); Jeffries, supra note 61, at 250 n.151 (“There is considerable variation among the circuits. The Ninth Circuit often construes qualified immunity to favor plaintiffs and is often reversed for that reason. The Eleventh Circuit leans so far in the other direction that it has been called the land of ‘unqualified immunity.’” (citations omitted)); Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L. Rev. 1, 40-41 (2015) (finding circuit variation in the frequency with which the Fifth, Sixth, and Ninth Circuits courts exercise their discretion under Pearson to decide whether a constitutional violation occurred); Wilson, supra note 61, at 447-48 (describing variation in the ways circuit courts analyze whether the law is clearly established).

See supra Table 12.

Malley v. Briggs, 475 U.S. 335, 341 (1986).

See Schwartz, What Police Learn, supra note 71, at 863.

Alexander A. Reinert, Does Qualified Immunity Matter?, 8 U. St. Thomas L.J. 477, 492 (2011).

Id. at 492-94.

Id.

See supra Table 6.

See supra Tables 9 & 10.

Malley v. Briggs, 475 U.S. 335, 341 (1986).

See supra notes 118-122 and accompanying text. For further discussion of selection effects, see Kevin M. Clermont, Litigation Realities Redux, 84 Notre Dame L. Rev. 1919, 1965 (2009); and George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1 (1984).

See supra Table 6.

City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 n.3 (2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982)).

See supra Table 6.

Turner v. Weikal, No. 3:12-cv-0915, 2013 WL 3272481, at *3 (M.D. Tenn. June 27, 2013) (internal quotation marks and citations omitted).

See, e.g., Wesley v. Campbell, 779 F.3d 421, 433-34 (6th Cir. 2015); Owens v. Balt. City State’s Attorneys’ Office, 767 F.3d 379, 396 (4th Cir. 2014); Newland v. Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009); Field Day, LLC v. Cty. of Suffolk, 463 F.3d 167, 191-92 (2d Cir. 2006); St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002); Alvarado v. Litscher, 267 F.3d 648, 651-52 (7th Cir. 2001); Sims v. Adams, 537 F.2d 829, 832 (5th Cir. 1976).

See, e.g., Order Denying Motion to Dismiss at 2-3, Dudley v. Borough of Upland, No. 2:12-cv-5651 (E.D. Pa. July 19, 2013), ECF No. 33 (“Without discovery, I cannot determine whether the Officers acted reasonably. For instance, it is unclear what the Officers knew about the warrant when they arrested Plaintiff and whether the warrant bore an expiration date. Viewing the factual allegations in the light most favorable to Plaintiff, it may have been objectively unreasonable that the Officers failed to look into the validity of a 2 ½-year-old warrant. Accordingly, I cannot yet determine whether the Officers are entitled to qualified immunity.” (citation omitted)); Report and Recommendation at 15, Coldwater v. City of Clute, No. 3:12-cv-0028 (S.D. Tex. Aug. 30, 2012), ECF No. 41 (“Accepting the allegations in her Amended Complaint as true, the Court cannot conclude, at least at this juncture in the litigation, that the conduct of these Defendants was objectively reasonable in the light of then clearly established law.”); Pippin v. Kirkland, No. 8:12-cv-0776, 2012 WL 12903175, at *2 (M.D. Fla. July 3, 2012) (“[A]ccepting all factual allegations in the Complaint as true, it is not possible to determine whether Defendant Kirkland is entitled to qualified immunity.”); Mantell v. Health Prof’ls Ltd., 5:11-cv-1034, 2012 WL 28469, at *4 (N.D. Ohio Jan. 5, 2012) (“[T]he Court takes no stance on whether discovery will ultimately support these allegations against any of the moving defendants and the issues may appropriately be revisited during summary judgment practice in this matter. However, for the purposes of a motion to dismiss, the complaint properly pleads deliberate indifference and precludes a finding of qualified immunity at this time.”); Nishi v. Cty. of Marin, No. 4:11-cv-0438, 2011 WL 1807043, at *2 (N.D. Cal. May 11, 2011) (“[R]esolution of the qualified immunity defense frequently raises issues of fact that are more appropriately determined at a later stage. While such a defense may thus very well prove viable at a future stage of these proceedings, it does not present an adequate basis for dismissal here.”).

Alan K. Chen, The Facts About Qualified Immunity, 55 Emory L.J. 229, 230 (2006); see also Jeffries, supra note 61, at 252-53.

See, e.g., Martin v. City of Reading, 118 F. Supp. 3d 751, 765-67 (E.D. Pa. 2015) (“[A]s the Court of Appeals for the Third Circuit recently observed in a case involving a claim of excessive force that arose out of the use of a Taser, ‘if there are facts material to the determination of reasonableness in dispute, then that issue of fact should be decided by the jury.’ . . . Thus, affording Defendant Errington qualified immunity at this time is inappropriate in light of the genuine dispute between the parties of the facts bearing on his entitlement to immunity.” (quoting Geist v. Ammary, 617 F. App’x 182, 185 (3d Cir. 2015))); Hayes v. City of Tampa, No. 8:12-cv-2038, 2014 WL 4954695, at *8 (M.D. Fla. Oct. 1, 2014) (“[C]onstruing the record as a whole in favor of Hayes, whether Hayes’s ‘stance, demeanor and facial expression’ justified Miller’s use of a taser is a genuine issue of material fact.”); McKissic v. Miller, 37 F. Supp. 3d 907, 918 (N.D. Ohio 2014) (“[W]hen the facts as alleged by the Plaintiff and supported by some evidentiary materials, are taken to be true, there remains a question of fact as to whether Officer Miller’s actions constituted excessive force in violation of the Fourth Amendment of the U.S. Constitution.”); Bui v. City of San Francisco, 61 F. Supp. 3d 877, 902 (N.D. Cal. 2014) (“[B]ased on the evidence presented by both sides . . . the court cannot decide as a matter of law whether it would have been ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ In these circumstances, the court denies Defendants’ motion insofar as it asks the court conclude that the officers are entitled to qualified immunity.” (citation omitted) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001))); Nunez v. City of Corpus Christi, No. 2:12-cv-0092, 2013 WL 4040373, at *3 (S.D. Tex. Aug. 7, 2013) (denying qualified immunity because “there is considerable dispute regarding the timing of Hobbs’ shots, the position of the vehicle at the time the shots were fired, and the immediacy of the threat posed to Officer Hobbs”).

137 S. Ct. 548, 552 (2017).

Feldman, supra note 5.

Pauly, 137 S. Ct. at 553 (Ginsburg, J., concurring).

See supra Table 1.

In the Southern District of Texas, defendants could raise qualified immunity in 106 cases in my dataset; in ninety-nine of those cases, plaintiffs also named municipalities as defendants. In the Middle District of Florida, defendants could raise qualified immunity in 155 cases in my dataset; in 149 of those cases, plaintiffs also named municipalities as defendants. In the Northern District of Ohio, defendants could raise qualified immunity in 139 cases in my dataset; in 129 of those cases, plaintiffs also named municipalities as defendants. In the Northern District of California, defendants could raise qualified immunity in 219 cases in my dataset; in 209 of those cases, plaintiffs also named municipalities as defendants. In the Eastern District of Pennsylvania, defendants could raise qualified immunity in 360 cases in my dataset; in 357 of those cases, plaintiffs also named municipalities as defendants.

See supra notes 102-104 and accompanying text (providing examples of these cases from my dataset).

See supra Table 12. In addition to the 105 cases dismissed sua sponte that were brought against individual defendants, see supra Table 1, twenty-one cases brought against municipalities or seeking injunctive relief were also dismissed before defendants answered or otherwise responded. These dismissals were most often based on the court’s power to dismiss frivolous pro se claims sua sponte, but others were dismissed at this early stage for failure to prosecute or lack of subject matter jurisdiction. Cases dismissed for failure to prosecute or remanded to state court after defendants responded to the complaints are counted separately in Table 12.

See supra Figure 1; supra note 88 and accompanying text.

See supra Table 7. I include in the latter category cases where qualified immunity was the alternate ground for decision and cases where the court’s reasoning was unclear.

See supra Figure 2.

See supra Table 8. Summary judgment was granted in whole or in part 146 times. Of those cases, the court relied on qualified immunity fifty-eight times.

Wyatt v. Cole, 504 U.S. 158, 171 (1992) (Kennedy, J., concurring) (citations omitted).

Accord Fallon, supra note 59, at 504-05 (observing that other mechanisms can be used to achieve the goals of qualified immunity).

Pearson v. Callahan, 555 U.S. 223, 231 (2009).

See, e.g., Blum, Chemerinsky & Schwartz, supra note 8 (criticizing the Court’s qualified immunity jurisprudence along these lines); Reinhardt, supra note 7 (same).

Pearson, 555 U.S. at 231.

Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (alteration in original) (citations omitted).

See Schwartz, supra note 16, at 890.

See id. at 926-29. An officer was not indemnified for a $300 punitive damages judgment in Los Angeles, but the officer never paid the award. And officials believed—but could not confirm—that employees of the Jacksonville Sheriff’s Office and the Illinois State Police may each have been required to contribute to one settlement during the study period.

Id. at 939.

Pearson, 555 U.S. at 231 (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)).

See supra Tables 4 & 5.

Jeffries, supra note 6, at 852.

Blum, supra note 114, at 925 (footnotes omitted).

Wilson, supra note 61, at 447; see also Blum, supra note 114, at 945-46 (quoting two judges’ descriptions of the complexities of determining whether a law is clearly established).

See supra Table 11 (thirty-eight of the 440 qualified immunity motions raised by defendants resulted in case dismissals).

Chen, supra note 57, at 100.

Pearson v. Callahan, 555 U.S. 223, 237 (2009) (alteration in original) (quoting Brief for National Ass’n of Criminal Defense Lawyers as Amicus Curiae Supporting Respondent, Pearson, 555 U.S. 223 (No. o7-751)).

See supra notes 117-122 and accompanying text (discussing case selection and settlement behavior effects).

See Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982) (discussing qualified immunity’s goal of preventing “insubstantial claims” from proceeding to trial).

See Reinert, supra note 118, at 491-95.

Harlow, 457 U.S. at 814 (alteration in original) (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)).

Owen v. City of Independence, 445 U.S. 622, 655-56 (1980) (explaining that the overdeterrence rationale for qualified immunity “loses its force” when “the threat of personal liability is removed”).

Victor E. Kappeler, Critical Issues in Police Civil Liability 7 (4th ed. 2006) (citing several studies); see also Schwartz, supra note 16, at 942-43 (discussing studies of civil liability as a deterrent to aggressive police behaviors).

See, e.g., Yamiche Alcindor & Nick Penzenstadler, Police Redouble Efforts To Recruit Diverse Officers, USA Today (Jan. 21, 2015), http://www.usatoday.com/story/news/2015/01 ‌/21/police-redoubling-efforts-to-recruit-diverse-officers/21574081 [http://perma.cc/4MFX -3ZE9]; Edmund DeMarche, ‘Who Needs This?’ Police Recruits Abandon Dream Amid Anti-Cop Climate, Fox News (Sept. 2, 2015), http://www.foxnews.com/us/2015/09/02/who -needs-this-police-recruits-abandon-dream-amid-anti-cop-climate.html [http://perma.cc ‌/DAC4-EQR3]; Daniel Denvir, Who Wants To Be a Police Officer?, CityLab (Apr. 21, 2015), http://www.citylab.com/crime/2015/04/who-wants-to-be-a-police-officer/391017 [http://‌ perma.cc/RB27-LEUZ]; Mori Kessler, Thinning Blue Line: Police See Declines in Applicants, St. George News (Dec. 13, 2015), http://www.stgeorgeutah.com/news/archive/2015/12/13 ‌/mgk-thinning-blue-line-police-decline [http://perma.cc/L2ENVRE2]; Oliver Yates Libaw, Police Face Severe Shortage of Recruits, ABC News (July 10, 2016), http://abcnews.go.com‌ /US/story?id=96570 [http://perma.cc/NJ27-866M]; John Vibes, Surprised? Some Police Departments Experiencing Sharp Decline in New Applicants, Free Thought Project (Feb. 20, 2015), http://thefreethoughtproject.com/good-news-areas-find-people-police [http://‌ perma.cc/7KFB-RABB]; William J. Woska, Police Officer Recruitment: A Public-Sector Crisis, Police Chief (Apr. 2016), http://www.policechiefmagazine.org/police-officer-recruitment -a-public-sector-crisis [http://perma.cc/S57T-5T5N].

See Lawrence Rosenthal, A Theory of Governmental Damages Liability: Torts, Constitutional Torts, and Takings, 9 U. Pa. J. Const. L. 797, 856 (2007).

See, e.g., Jeffries, supra note 61, at 247 (“Limitations on money damages facilitate constitutional evolution and growth by reducing the cost of innovation. Judges contemplating an affirmation of constitutional rights need not worry about the financial fallout.”).

Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (citing Butz v. Economou, 438 U.S. 478, 504-05 (1978)).

Pearson v. Callahan, 555 U.S. 223, 231 (2009).

See supra notes 6-8 and accompanying text.

See supra note 3 and accompanying text.

See supra notes 162-163 and accompanying text.

See supra notes 162-163 and accompanying text.

See supra notes 155-159 and accompanying text.

See Chen, supra note 57, at 99 (“Plaintiffs, defendants, and trial courts are likely to expend substantial resources simply litigating the qualified immunity defense—an elaborate sideshow, independent of the merits, that in many cases will do little to advance or accelerate resolution of the legal claims.”).

See supra Section I.B.2 (describing Pearson).

See, e.g., Albert W. Alschuler, Herring v. United States: A Minnow or a Shark?, 7 Ohio St. J. Crim. L. 463, 502-06 (2009); Jack M. Beermann, Qualified Immunity and Constitutional Avoidance, 2009 Sup. Ct. Rev. 139, 149; John C. Jeffries, Jr., Reversing the Order of Battle in Constitutional Torts, 2009 Sup. Ct. Rev. 115, 120; James E. Pfander, Resolving the Qualified Immunity Dilemma: Constitutional Tort Claims for Nominal Damages, 111 Colum. L. Rev. 1601, 1605-06 (2011).

See Nielson & Walker, supra note 114; see also Paul W. Hughes, Not a Failed Experiment: Wilson-Saucier Sequencing and the Articulation of Constitutional Rights, 80 U. Colo. L. Rev. 401, 428 & n.121 (2009) (predicting that Pearson will lead to constitutional stagnation); Colin Rolfs, Qualified Immunity After Pearson v. Callahan, 59 UCLA L. Rev. 468 (2011) (finding that after Pearson district courts often answered both steps of the qualified immunity analysis, but circuit courts more often decided qualified immunity motions without ruling on the underlying constitutional right); cf. Ted Sampsell-Jones & Jenna Yauch, Measuring Pearson in the Circuits, 80 Fordham L. Rev. 623, 629 (2011) (finding that circuit courts followed the Saucier two-step process “most of the time”).

See, e.g., Matthew Slaughter, First Amendment Right To Record Police: When Clearly Established Law Is Not Clear Enough, 49 J. Marshall L. Rev. 101 (2015) (describing circuit variation in analysis of the right to record the police); Bailey Jennifer Woolfstead, Don’t Tase Me Bro: A Lack of Jurisdictional Consensus Across Circuit Lines, 29 T.M. Cooley L. Rev. 285 (2012) (describing circuit variation in analysis of qualified immunity for claims involving electronic control devices).

For example, in Ashcroft v. al-Kidd, the Supreme Court held that the then-Attorney General John Ashcroft was entitled to qualified immunity, even though he authorized federal prosecutors to use the material-witness statute pretextually, because qualified immunity doctrine “demands that we look to whether the arrest is objectively justified, rather than to the motive of the arresting officer.” 563 U.S. 731, 740 (2011).

Despite the confusion in the doctrine, the Supreme Court’s most recent decisions suggest that it is very difficult to show that conduct violates “clearly established law.” Although the Court once held that the obviousness of a constitutional violation can defeat qualified immunity even without a case on point, see Hope v. Pelzer, 536 U.S. 730 (2002), in recent years the Court’s primary focus has been whether a prior court has held the right to be clearly established, see Blum, Chemerinsky & Schwartz, supra note 8, at 652-53. The Court’s recent decisions have made it difficult to clearly establish the law in other ways as well. In 1999, the Court explained that a plaintiff could show the law was clearly established by pointing to “controlling authority in their jurisdiction” or a “consensus of cases of persuasive authority.” Wilson v. Layne, 526 U.S. 603, 617 (1999). Yet in more recent decisions, the Court has backed away from this position; it now only assumes for the sake of argument that controlling circuit authority or a consensus of cases of persuasive authority can clearly establish the law. See Kinports, supra note 2, at 70-71 (describing this shift in the law). The Court’s most recent decisions also suggest that the facts of the prior decision must closely resemble those of the instant case. The Court has repeatedly assured plaintiffs that it “do[es] not require a case directly on point,” but requires that “existing precedent must have placed the statutory or constitutional question beyond debate.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (citing al-Kidd, 563 U.S. at 741). In recent years, the Court has reversed several lower court decisions for relying on prior precedent that established constitutional principles at too-general a level. See, e.g., White v. Pauly, 137 S. Ct. 548 (2017); Mullenix, 136 S. Ct. 305.

Jeffries, supra note 61, at 256.

Mullenix, 136 S. Ct. at 308 (citing al-Kidd, 563 U.S. at 741).

No. 3:12-cv-1613 (N.D. Cal. Mar. 30, 2012).

The facts of the case are taken from the district court’s summary judgment decision. See McKay v. City of Hayward, 949 F. Supp. 2d 971, 975-76 (N.D. Cal. 2013).

Id. at 985.

Id. at 983.

Id. at 984.

See Case Management Minutes, McKay, 949 F. Supp. 2d 971 (No. 3:12-cv-1613), ECF No. 67.

McKay, 949 F. Supp. 2d at 985, 988.

See McKay, 949 F. Supp. 2d 971 (No. 3:12-cv-1613), ECF Nos. 76-79.

See Order of Conditional Dismissal, McKay, 949 F. Supp. 2d 971 (No. 3:12-cv-1613), ECF No. 81.

In some cases, the grant of qualified immunity might cause plaintiffs to settle instead of going to trial or cause plaintiffs to settle for an amount smaller than they would have otherwise accepted. In this case, the plaintiffs’ attorney reported that the qualified immunity grant had a “negligible” impact on the value of the case because the Monell claim remained and, “[u]nlike many civil rights cases, [the plaintiffs] had good evidence to support the Monell claim.” E-mail from Matthew D. Davis, Attorney for Plaintiffs in McKay, 949 F. Supp. 2d 971, to author (Nov. 28, 2016, 9:17 AM) (on file with author).

See Harlow v. Fitzgerald, 457 U.S. 800, 815-16 (1982) (discussing qualified immunity’s goal of preventing “insubstantial claims” from proceeding to trial).

See, e.g., Hudson v. Michigan, 547 U.S. 586, 598-99 (2006) (asserting that the rise of police professionalism and internal discipline reduces the need for the exclusionary rule to deter police misbehavior).

For examples of instances in which court decisions have influenced police department policies and trainings, see Police Exec. Research Forum, Guiding Principles on Use of Force 18 (Mar. 2016), http://www.policeforum.org/assets/30%20guiding %20principles.pdf [http://perma.cc/G9YU-C4UA] (explaining that after the Fourth Circuit held that using a Taser repeatedly in drive-stun mode was unconstitutional, “several agencies in jurisdictions covered by the Fourth Circuit ruling amended their use-of-force and ECW [Electronic Control Weapons] policies” in response to the decision); and Joanna C. Schwartz, Who Can Police the Police?, 2016 U. Chi. L.F. 437, 452 n.53, 455 n.68.

See David Alan Sklansky, Is the Exclusionary Rule Obsolete?, 5 Ohio St. J. Crim. L. 567, 580-81 (2008) (observing that, when a United States Supreme Court decision removed the exclusionary rule as a remedy for conduct that violated California constitutional law—searching garbage without a warrant—police in California were “trained to ignore” California law).

Anderson v. Creighton, 483 U.S. 635, 641 n.3 (1987).

Id. at 645 (citing Harlow, 457 U.S. at 815-20).

Wyatt v. Cole, 504 U.S. 158, 171 (1992) (Kennedy, J., concurring).

See Ziglar v. Abbasi, 137 S. Ct. 1843, 1871 (2017) (Thomas, J., concurring in part and concurring in the judgment) (“Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in ‘interpret[ing] the intent of Congress in enacting’ the Act. . . . Our qualified immunity precedents instead represent precisely the sort of ‘freewheeling policy choice[s]’ that we have previously disclaimed the power to make.” (citations omitted)).

See supra notes 174-175 and accompanying text.

See supra notes 182-184 and accompanying text.

See supra note 183 and accompanying text (describing recent shifts in the doctrine).

See Baude, supra note 3 (commenting on numerous summary reversals by the Supreme Court).

The Court could conceivably hold that qualified immunity can be asserted by municipalities and in claims for injunctive and declaratory relief. But the Court has already held that qualified immunity does not apply to both types of claims. And the Court has no power to create a qualified immunity defense for state claims.

For discussion of the common law and government practices in place when Section 1983 became law, see Alschuler, supra note 179, at 506 (“A justice who favored giving § 1983 its original meaning or who sought to restore the remedial regime favored by the Framers of the Fourth Amendment could not have approved of either Pierson or Harlow.”); Baude, supra note 3, at 1 (observing that qualified immunity is justified as “deriv[ing] from a common law ‘good faith’ defense,” but that “[t]here was no such defense”); James E. Pfander & Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U. L. Rev. 1862, 1924 (2010) (“During the early republic, the courts—state and federal—did not take responsibility for adjusting the incentives of officers or for protecting them from the burdens of litigation and personal liability. These were matters for Congress to adjust through indemnification and other modes of calibrating official zeal.”).

For discussions of the difficulty of establishing constitutional violations against law enforcement see, for example, Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. 125 (2017).

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982)).

See supra notes 6 and 56 and accompanying text.

136 S. Ct. 305 (2015) (per curiam).

Luna v. Mullenix, 773 F.3d 712, 715 (5th Cir. 2014), rev’d per curiam, 136 S. Ct. 305 (2015).

Mullenix, 136 S. Ct. at 306.

Id. at 306-07.

Id. at 307.

Id. at 316 (Sotomayor, J., dissenting).

Id. at 312 (majority opinion).

Id. at 316 (Sotomayor, J., dissenting).

See id.

See supra Section I.B.3.

See supra Section III.D; cf. Michael E. Solimine, Revitalizing Interlocutory Appeals in the Federal Courts, 58 Geo. Wash. L. Rev. 1165, 1179 (1990) (assessing the impact of interlocutory appeals for qualified immunity denials, and reporting that “the district judges with whom I have spoken . . . all believed that defendants used the Mitchell appeal as a delaying tactic that hampered litigation that would otherwise be tried or settled relatively quickly”).

See Jeffries, supra note 6, at 866. For the Court’s most recent decisions interpreting what constitutes clearly established law, see supra note 183.

See supra notes 176-185 and accompanying text.

See Jeffries, supra note 6, at 867.

See Fallon, supra note 59, at 486-89 (observing that adjustments to qualified immunity may influence other aspects of constitutional doctrine).

White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 n.3 (2015)).

See Schwartz, supra note 16, at 961.