The Supreme Court has described the “driving force” behind qualified immunity to be its power to dismiss “insubstantial” cases before discovery and trial. Yet in a prior study of 1,183 Section 1983 cases filed against law enforcement in five federal court districts around the country, I found that just seven (0.6%) were dismissed at the motion to dismiss stage and just thirty-one (2.6%) were dismissed at summary judgment on qualified immunity grounds. These findings undermine assumptions about the role qualified immunity plays in filed cases, but leave open the possibility that qualified immunity serves its intended role by screening out insubstantial cases before they are ever filed. Indeed, some have raised this possibility as reason to maintain the status quo.
This Article tests this alternative “screening” justification for qualified immunity. Drawing on my prior study of 1,183 Section 1983 cases, as well as qualitative data from ninety-four surveys and thirty-five interviews of attorneys who entered appearances on behalf of plaintiffs in those cases, I find that qualified immunity almost certainly increases the cost, risk, and complexity of constitutional litigation, but has a more equivocal effect on attorneys’ case-selection decisions. Attorneys do not reliably decline cases vulnerable to attack or dismissal on qualified immunity grounds. And when lawyers do decline cases because of qualified immunity, they do not appear to be screening out “insubstantial” cases under any plausible definition of the term. These empirical findings enrich our understanding of the role qualified immunity plays in civil rights cases, contribute to mounting evidence that qualified immunity doctrine fails to achieve its intended policy goals, and support growing calls to better align the doctrine with the realities of constitutional litigation.