In litigation brought pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), most commentators agree that qualified immunity plays a substantial role in limiting plaintiffs' ability to recover compensation. Many find this tradeoff acceptable, in part because of concerns of fairness to government official defendants and in part because courts may still play a central role in announcing the law without worrying over the retroactive effect their decision will have on the personal funds of the defendant official.

This paper considers the different role that qualified immunity may play in Bivens and other civil rights litigation. Empirical support for the proposition that qualified immunity plays a significant role in filed cases is limited and more recent data call it into question. Working from the assumption that qualified immunity plays less of a role in filed cases than has been assumed, this paper considers other ways in which the defense of qualified immunity may affect the course of constitutional litigation. In particular, this paper focuses on the role that qualified immunity may play in case screening and reports on the results of a qualitative survey of civil rights practitioners.

The results suggest that lawyers often take qualified immunity into account at the case-screening stage and indeed may in some cases avoid litigation in which qualified immunity is even a potential issue. This observation has ramifications for the theory that qualified immunity enhances the law-announcing function of federal courts.