Taking the measure of qualified immunity: How Reuters analyzed the data
Supreme Court Justice Sonia Sotomayor has repeatedly criticized her fellow justices for creating, as she put it in a 2018 dissent, an “absolute shield” for police officers accused of excessive force. So Reuters reporters decided to test her words.
Sotomayor isn’t alone in faulting the court for making it too easy for cops accused of violating the Fourth Amendment to the U.S. Constitution, which protects the public from unreasonable search and seizure. Groups from across the political spectrum have set their sights on the obscure legal doctrine known as qualified immunity, created half a century ago to shield police and other government employees from legal liability for actions they take on the job.
But no one had measured whether the critics were right: Were the Supreme Court’s actions making it easier for police to beat back lawsuits by claiming qualified immunity? And how were the high court’s interventions playing out in the lower courts?
To answer these questions, Reuters reporters built and analyzed a database made up of information from all three levels of the federal courts: district and appellate courts and the Supreme Court.
Reporters first analyzed 529 federal circuit court opinions published from 2005 through 2019 on appeals of cases in which cops accused of excessive force raised a qualified immunity defense. Not all opinions are published, but those that are set precedent for lower courts.
We identified the cases by searching written opinions in Westlaw, a legal research service owned, like Reuters, by Thomson Reuters Corp. Westlaw researchers estimate that our search captured nearly all relevant cases. We excluded claims against corrections officers for incidents that occurred in jails and prisons.
For every relevant opinion, reporters recorded dozens of characteristics related to the facts of the case, such as whether and how the civilian was armed, the type of force the officers applied, and whether the civilian was injured or died in the encounter with police. We also recorded whether the court granted qualified immunity and some specifics about that decision. For example, did the court find that the civilian’s civil rights may have been violated, or did the court skip this question? Did the court find a clearly established precedent that the force was unconstitutional?
Our analysis of this data showed the appellate courts’ growing tendency, influenced by guidance from the Supreme Court, to grant police immunity. More than ever, they are ignoring the question of whether cops have violated a plaintiff’s constitutional rights, thereby avoiding establishing a precedent for future cases and making it harder to win cases against the police. The failure to set precedents is particularly challenging for plaintiffs because the data also showed that appellate courts are increasingly requiring a nearly identical case from the past to serve as a precedent that clearly establishes an officer’s actions as illegal – a high standard that again makes it hard to win against the police.
In one of her dissents, Justice Sotomayor called out a “disturbing trend” in which the Supreme Court intervened more often at the request of officers than civilians.
To quantify just how often this was happening, Reuters downloaded the Supreme Court’s docket and paired it with Westlaw data to identify police use-of-force cases mentioning qualified immunity. Reuters used decisions from the Supreme Court’s terms from 2005 through 2018, the last term for which complete data was available.
Reporters again manually reviewed cases to determine which party petitioned the court and the petition’s outcome. We excluded pro se cases, those in which petitioners served as their own lawyers, because requests not drafted by attorneys have a significantly lower success rate. In total, Reuters identified 121 relevant petitions – 65 submitted by police and 56 submitted by civilians.
Our data confirmed Sotomayor’s statement. An officer was 3.5 times more likely than a civilian to have a petition accepted.
The circumstances of a case – whether a civilian drew a weapon or resisted arrest, for example – can influence judicial decisions on qualified immunity. Yet even after controlling for such factors, we still found a significant increase over time in appeals decisions granting qualified immunity and in the Supreme Court's own decisions about whether to take a case.