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Qualified Immunity's Selection Effects, Joanna C. Schwartz

Northwestern University Law Review

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 …