Volume 57

Beating Qualified Immunity on Appeal

by Alex Bodaken

Qualified immunity, the doctrine that states government officials must violate clearly established law in order to face liability, is widely seen as making cases against government officials nearly unwinnable. New developments, however, indicate that the doctrine may not be as powerful as many believe. Qualified immunity has come under attack from a cross-ideological spectrum of scholars. And in a recent pathbreaking article, Professor Joanna Schwartz argued that qualified immunity is not an insurmountable real-world bar to suits against government officials.

This contribution builds on Professor Schwartz’s work by specifically examining qualified immunity’s vulnerability at the appellate level. Even as the Supreme Court has emphasized qualified immunity’s breadth, language and decisions from appellate courts have demonstrated discomfort with the doctrine. Examining the implications of this dissonance, this contribution first traces a history of the creation, expansion, and criticism of qualified immunity. Then, it challenges the belief that qualified immunity is nearly unbeatable by demonstrating that circuit courts have been surprisingly willing to reverse qualified immunity grants in recent years. Finally, based on cases where district court grants of qualified immunity have been reversed on appeal, it suggests angles of attack for plaintiffs seeking to defeat the defense.

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