Reforming Qualified-Immunity Appeals

The Supreme Court held in Mitchell v. Forsyth that defendants have a right to immediately appeal from the denial of immunity. This right to appeal alone is enough to halt any progress in civil-rights litigation and add complexity to a case, and defendants can use these appeals to wear down plaintiffs. But appeals from the denial of qualified immunity—or simply “qualified-immunity appeals”—are worse than some seem to realize. In the 35 years since Mitchell, the federal courts have steadily expanded the scope and availability of these appeals.

The courts have also undermined (or let defendants undermine) the limits on those appeals. And the courts have given defendants nearly every opportunity to take qualified-immunity appeals, even if that means multiple appeals in a single action.