Amateur comedian Anthony Novak beat the odds on July 29, 2019. After suing the officers who arrested him after he made fun of their department with a parody Facebook page in Parma, Ohio, he won the right to proceed with his First Amendment retaliation case.
Many constitutional claims against the police never make it this far.
People in positions of public trust can invoke qualified immunity, a judge-made doctrine that shields government employees and elected officials from civil consequences unless their conduct is “clearly established” as unconstitutional in prior rulings.
The barrier is difficult to overcome, so Novak had reason to celebrate the decision from the 6th U.S. Circuit Court of Appeals. Yet it was the arresting officers, not Novak, who had the last laugh. Nearly three years after the officers’ initial setback, they returned to the same appeals court with a modified argument (using information gained during discovery) and secured qualified immunity on their second attempt.
Novak petitioned the Supreme Court to hear his case with representation from our public interest law firm, the Institute for Justice. But the request was denied in 2023, allowing the case to die without a trial or verdict.
The message for officials is clear: They can violate civil rights and hide behind qualified immunity. And if, at first, they do not succeed, they can try and try again.
Unaccountable, an Institute for Justice report published on Feb. 7, 2024, highlights this rigged system. Using the largest-ever collection of qualified immunity appeals, covering the 11 years from 2010 to 2020, the study documents the challenges for people such as Novak.
Overall, courts resolved qualified immunity appeals solely in favor of government defendants 59% of the time. Their accusers fully prevailed only 24% of the time. Giving the same government defendants multiple chances to appeal turns the odds even more in their favor — like giving a poker player an extra card or a tennis player an extra serve.
Qualified immunity works this way by design. When government defendants raise qualified immunity and lose at any stage in federal court, they can file special immediate appeals — a right unavailable to their victims. Government defendants can do this multiple times in the same case.
They do not have to wait for a verdict. If the lower court denies their motion to dismiss the case, they can appeal. If the court denies their motion for summary judgment, they can appeal. If they lose at trial, they can appeal. And they do not have to pick and choose. They can select all of the above with qualified immunity.
Such “interlocutory appeals” accounted for 96% of all defendant appeals involving qualified immunity during the study period. Some courts advertise this as a feature, not a bug, of qualified immunity.
“An official can take multiple immediate appeals because the official can raise qualified immunity at any stage in the litigation,” the 5th U.S. Circuit Court of Appeals held in a 2020 opinion involving Gretna, Louisiana, officers who tased and beat a mentally ill man for eight minutes while he laid down in a fetal position, causing fatal injuries.
The officers filed this appeal after losing a motion for summary judgment. The 5th Circuit denied qualified immunity, and the man’s survivors settled with the city. But if these officers had held out for trial, they could have come back to the same court seeking qualified immunity later in the lawsuit.
The 5th Circuit lays out at least four opportunities for appeal — three interlocutory appeals prior to trial and another post-verdict. Public officials only have to win once.
Even if officials lose every time, they can use these appeals to drag out cases for years while their accusers’ resources dwindle. The stall tactic probably helps explain why the median duration of a qualified immunity lawsuit during the study period was 23% longer than the typical federal civil suit up on appeal.
Grieving relatives experienced this kind of delay in Lyon County, Nevada, when an estate administrator entered their deceased father’s home and stole weapons and other valuables. The family sued in 2007 but did not get a final judgment until 2019 — 12 years later.
The family spent more than a decade running a procedural gauntlet created by the administrator’s multiple claims of qualified immunity. He claimed qualified immunity twice before trial and was denied each time. He tried a third time after the family won. The 9th U.S. Circuit Court of Appeals denied that attempt, too.
Nothing moves fast with qualified immunity. Giving officials multiple bites at the apple compounds the problem. The result is no joke.
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Elyse Smith Pohl is a policy attorney at the Institute for Justice and a co-author of Unaccountable. Daryl James is an Institute for Justice writer.
