For half a century the Supreme Court has held that defendants in civil rights actions can avoid monetary liability if they demonstrate a qualified immunity for their actions. And for thirty years, the Court has held that district court denials of the qualified immunity defense are immediately appealable under the collateral order exception to the final order requirement. Controversial from the start, the qualified immunity defense has recently come under renewed stress, with calls from individual Justices and by leading voices in academia to either significantly modify or even abolish the defense. While primarily dealing with substantive aspects of the defense, this questioning also suggests a revisiting of the status quo on defendants being able to immediately appeal a denial of the defense, a task undertaken by this Essay. After briefly setting out the status quo of the qualified immunity defense, this Essay argues that the decisions permitting immediate appealability are dubious on doctrinal, functional, and institutional grounds. It further argues that the decisions should either be overruled or significantly limited, and that the Court should leave it to the rulemaking process, rather than caselaw, to carve out any exceptions to the presumption that denial of such a defense is not immediately appealable.
Michael E. Solimine,
Are Interlocutory Qualified Immunity Appeals Lawful?,
Notre Dame L. Rev. Online
Available at: https://scholarship.law.nd.edu/ndlr_online/vol94/iss3/4