Federal appellate courts label most opinions as “non-precedent.” The label is supposed to have no doctrinal impact. But in the context of qualified immunity, the non-precedential label dramatically impacts doctrine. This Article first examines the tension between qualified immunity doctrine and core common law values of predictability, consistency, and perceived integrity of the judicial process. It explores an underappreciated issue: how federal circuits’ refusal to decide more appeals in binding precedent compounds the doctrinal problems of qualified immunity.
A government defendant who violates a constitutional right nevertheless is immune if, at the time of the injury, the constitutional right was not “clearly established.” Qualified immunity is intended to protect police, teachers, social workers, and other government defendants from having to predict future constitutional developments. But qualified immunity has become too high a hurdle for civil rights plaintiffs because courts too often hold constitutional rights are not “clearly established.” Critics argue that qualified immunity doctrine defines constitutional rights too narrowly, demands precedent with nearly identical facts, and fails to acknowledge obvious constitutional violations.
This Article builds on critiques of qualified immunity. It focuses on the often overlooked issue of how the proliferation of non-precedential federal appellate opinions compounds the problems of qualified immunity. “Non-precedential” opinions are supposed to be routine applications of settled law. But they’re not. In fact, one in five decisions recognizing a new constitutional right was a non-precedential opinion. In the context of qualified immunity, labeling opinions “non-precedent” increases the likelihood defendants will be immune. Labeling 85 percent of merits opinions and 65 percent of qualified immunity opinions as “non-precedent” substantively shapes doctrine. Because most of their opinions are “non-precedent,” federal appellate courts limit the pool of examples available to establish constitutional rights and hinder the development of constitutional law.
Ricks, Sarah E., Suppressing Constitutional Law: Qualified Immunity and Non-precedential Opinions (February 26, 2026). 73 U.C.L.A. Law Rev. 94 (2026),
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