Qualified immunity has received an increasing amount of attention over the past few years amidst rising calls for reform against misconduct by government officials such as police officers. Qualified immunity provides a shield against damages liability for government officials who violate a person’s constitutional rights as long as those rights were not clearly established at the time of the violation. Many commentators have argued that the doctrine as it is currently applied has allowed government officials to avoid accountability for grave acts of misconduct. Additionally, federal courts have exacting standards as to what constitutes clearly established law, in some situations requiring a previously decided case with nearly identical facts to clearly establish the law. Recently, the foundations of qualified immunity have come into question, raising questions about the continued viability of the doctrine. And the application of qualified immunity in the real world has been shown to have little to no relation to the judicial construction of clearly established law, undermining the Supreme Court’s reasoning for keeping the standard.

Further complicating this area of law is that federal courts of appeals vary in their treatment of unpublished decisions in qualified immunity cases. This has resulted in a system where a court in the past has decided that certain conduct violates the Constitution, but that decision may not be binding precedent in future decisions of that circuit or in other circuits. As Fifth Circuit Judge Don Willet has noted, “[n]o precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.” In the qualified immunity context, where cases may establish constitutional violations but remain unpublished, arguments that unpublished decisions do not provide value to other parties do not apply. Instead, unpublished decisions can provide tremendous value in the intensely fact-specific inquiries that courts often undertake to determine whether conduct was clearly established as a constitutional violation at the time. However, in a 2016 systematic review of circuit court cases that address constitutional claims, one in five decisions that recognized a constitutional violation were found to be unpublished.

This Note argues that federal judges should have an ethical duty to publish all opinions that recognize constitutional violations. Part I of this Note explains the current state of the Supreme Court’s qualified immunity doctrine. Part II then provides an overview of the treatment of unpublished decisions by various circuit courts in qualified immunity determinations. Part III provides a brief history of and rationale for unpublished opinions and explains why, especially in the qualified immunity context, arguments against publishing certain decisions no longer hold weight. Part IV covers two constitutional avoidance mechanisms that judges can take in qualified immunity cases—choosing not to reach the constitutional question and choosing not to publish opinions that do decide constitutional questions—that have led to a dearth of cases that recognize constitutional violations. Part V reviews recent cases that illustrate some problems of unpublished opinions in qualified immunity cases. Part VI argues that judges should have an ethical obligation under the Model Code of Judicial Conduct to publish all cases that recognize constitutional violations in qualified immunity cases. Part VII reviews changes that Congress, the Supreme Court, and circuit courts could make to solve some of the problems illustrated here. Requiring judges to publish all cases that establish constitutional violations would allow those whose constitutional rights are violated to show that the law is clearly established and allow them to recover damages from those who violated those rights.

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