With many cases of police abuse in the national news cycle, the defense of qualified immunity has been publicized like never before.
According to CNN, “Qualified immunity, established by the Supreme Court in 1967, effectively protects state and local officials, including police officers, from personal liability unless they are determined to have violated what the court defines as an individual’s ‘clearly established statutory or constitutional rights.’”
Reuters recently ran a series of investigative reports on qualified immunity that showed the extent that police officers are shielded from personal liability. This post uses 200 cases from the past year where qualified immunity was identified as a defense as data to understand the landscape of these decisions across the country.
The Reuters article conveyed the prevalence of the qualified immunity defense. One way to further parse this is by looking at the frequency with which it has been granted.
The outcome breakdown shows that in most cases the qualified immunity defense is granted. The defense was only rejected by comparison in just over 16% of the cases. Some extent (but not all) of the qualified immunity defense was granted in 9.5% of the cases. The second most prevalent category, “in question” refers to cases where the court does not resolve the qualified immunity defense but generally clarifies an aspect of this defense for a future proceeding.
An example of a decision where the qualified immunity question is left in question comes from Judge Willett’s opinion in Roque v. Harvel. Here Willett concludes: “This is a tragic case that raises difficult questions about how police officers should respond to suicidal suspects. Those questions cannot be answered here without the resolution of several factual disputes.”
Digging deeper into these cases, it becomes apparent that while actions involving police officers were the most common for this type of case, multiple other types of actors also sought this defense. These individuals include school officials, attorneys, physicians, and prison guards
Gokor v. Schlievert is one of these cases involving a doctor. The qualified immunity defense was raised as follows, “Plaintiff Beth Gokor claims that the defendant’s ‘investigation’ did more than misdiagnose the cause of J.J.’s injury; he was the moving force behind a maliciously wrongful prosecution. Defendant Dr. Schlievert denies that he is liable and, he also contends that he, in any event, is entitled to the benefits of qualified immunity. This is so, he asserts, because: 1) ‘his good-faith and reasonable medical conclusion was not false or fabricated evidence against [plaintiff]’; and 2) plaintiff cannot show that probable cause did not support her prosecution. (Doc. 70).” In this case Judge Carr from the Northern District of Ohio ruled that Dr. Schlievert was not entitled to qualified immunity.
Another way to compare qualified immunity cases is by where they are located across the country. The following map presents this breakdown.
The most cases, 19, were heard in California. This is followed closely by cases from Texas (17), and then by cases from New York (13) Pennsylvania (12), and Michigan (10).
California cases came primarily from the Ninth Circuit, which was the court where most of these cases/appeals were heard.
After the Ninth Circuit the courts that most frequently examined these cases were the Tenth Circuit, Sixth Circuit, and Fifth Circuit. Most of these cases were also heard by federal courts, as the breakdown is 192 cases from federal court to eight decisions from state court. The two federal district courts that heard the most of these cases were the District Courts for the Northern District of Illinois and for Arizona.
While these cases spanned many jurisdictions and an abundance of judges, several judges heard multiple qualified immunity cases.
Judge McHugh from the Tenth Circuit heard many more of these cases than all other judges. McHugh wrote the majority opinions in Reavis Estate of Coale v. Frost, Arnold v. Gonzalez, Routt v. Howry, Bird v. Lampert, Britton v. Keller, and Joritz v. Gray-Little. Judge McHugh decided that the officials in question were entitled to the qualified immunity defense in all of these cases except in Reavis Estate, where Judge McHugh decided that the qualified immunity defense was still in question.
While cases involving police officers dominate these data and these officers were granted qualified immunity in the majority of these cases, these data also show that there is significant variation in this case type. It will be interesting to see the prevalence with which this defense is granted in the future, especially with the heightened intensity of this issue in the public spotlight.