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Friday, May 08, 2020

Reuters on qualified immunity

Reuters on Friday published a multi-part series on qualified immunity. The center of the study is a empirical look at how Pearson v. Callahan and the Court's recent string of summary reversals changed how courts of appeals handle qualified immunity. Its findings:

  • In 2005-07, plaintiffs in excessive-force cases prevailed 56 % of the time; in 2017-19, defendants prevailed 57 % of the time.


• This graph shows that the flip in plaintiff success is a recent development. From 2014-16, plaintiffs prevailed 52.2 % of the time; for 2017-19, it dropped to 43 %. Some of that might be traceable to the influx of Trump appointees (recognizing that some, such as Don Willetts of the Fifth Circuit, have criticized qualified immunity), as well as the hint from SCOTUS's summary reversals.

• The dark blue represents cases in which the court found no excessive force; the medium blue represents cases in which the court found excessive force but that it was not clearly established that the force was excessive; the light blue represents cases in which the court  skipped the merits question and found that it was not clearly established that the force was excessive. That third category has expanded the past two years.

• Courts (including SCOTUS) increasingly demand factual overlap with precedent before finding a right clearly established. Case in point: The Ninth Circuit granted qualified immunity because no precedent held that the Fourth Amendment was violated by police stealing private property while executing a search warrant.

• The latter two colors (which, on the eyeball test, appear to represent a bit less than half of the defendant victories) establish the new problem: Courts demand factual overlap for a right to be clearly established, then refuse to provide a precedential opinion that can serve to clearly establish that right going forward.*

[*] Courts seem more willing to reach the merits--so the right now is clearly established--in non-police, or at least non-excessive-force, cases.

• SCOTUS will review multiple petitions involving qualified immunity at its May 15 conference. These include the stolen coins, an officer who deployed a police dog on a non-resisting suspect, an officer who shot a child while attempting to shoot the non-threatening family dog, and Kim Davis trying to avoid damages for ignoring Obergefell (I used this in Civil Rights in the fall). Justice Thomas called for reconsidering qualified immunity in his concurring opinion in Ziglar v. Abbasi; this will be a chance to see if anyone else wants to follow him down that path.

Posted by Howard Wasserman on May 8, 2020 at 02:18 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Various corrections, and one comment:

I think Judge Willett's name is Willett, not Willetts.

I got confused when you mentioned "the latter two colors"; if you mean the medium and light blue of two bullet points prior, isn't the light blue the only color that illustrates your "problem," while the medium blue represents cases where courts granting QI do what you want them to do: find (advisorily, I would say, Camreta notwithstanding) violations that they subsequently immunize? So perhaps "latter two colors" should say "latter color," though it would be a lot clearer if you just said exactly which color you mean.

I think I agree with Judge Smith that if some property is seized under a valid warrant, the seizure probably doesn't turn into a Fourth Amendment violation because an officer subsequently takes the property home. If that's intended as a vehicle to challenge QI's immunization of pretty obviously unlawful conduct that hasn't been clearly established as unlawful, it's a pretty lame vehicle. However, it may raise a cert-worthy Fourth Amendment question, though given the lower courts' application of QI it's a problematic vehicle for that question as well. (Back to corrections, when you mention "the stolen coins" in the last paragraph, it would help the reader if you had said earlier the Ninth Circuit case involved stolen coins; otherwise it's pretty unclear what "the stolen coins" is referring to.)

Posted by: Asher Steinberg | May 8, 2020 3:49:56 PM

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