A Ninth Circuit panel ruled on October 21, 2026 that former Los Angeles County Sheriff Alex Villanueva is entitled to qualified immunity in a suit over deputies firing less-lethal projectiles at retreating protesters in 2020 (Bloomberg Law; Metropolitan News-Enterprise). Judges Ryan Nelson, Roopali Desai, and Karen Schreier found that Villanueva’s supervisory conduct after the protest did not violate “clearly established” law, reversing a district court that had let the claim against him proceed.
The timing is the story. On September 22, 2026, the Fifth Circuit went the other way, denying immunity to two Alexandria, Louisiana officers who stopped a driver for an invented turn-signal violation and then searched his car. The court held the stop was based on a “fabricated traffic violation” and the Fourth Amendment violation was clearly established. Days before Villanueva, the Eighth Circuit unanimously stripped immunity from a Missouri judge who jailed two children for 20 to 40 minutes during a custody dispute, holding that confinement without probable cause is a settled Fourth Amendment violation (both summarized in Reason’s October 21 roundup).
All three rulings sit downstream of the Supreme Court’s own spring 2026 expansion of qualified immunity in Zorn v. Linton and the summary reversal in the Scott case. Those decisions raised the bar nationally for what counts as “clearly established.” What’s showing up five months later is that circuits are applying the raised bar unevenly depending on fact pattern: the Ninth found no comparable precedent for Villanueva’s supervisory role, while the Fifth and Eighth found the underlying constitutional violations too basic to need case-specific precedent at all.
Who it affects
Self-insured cities, counties, transit authorities, and the public-entity pools and JPAs that carry their law enforcement liability. Any program with open Section 1983 claims involving use of force, pretextual stops, or detention by judicial or quasi-judicial officers now has a reserving problem that didn’t exist before this month: the circuit where a claim is filed changes the probability it survives summary judgment, and that probability moved in opposite directions in three circuits inside four weeks.
The reserve mechanism
This is a case-reserve variance problem, not a frequency or severity trend. Before the SCOTUS rulings, claims adjusters could lean on a reasonably stable national baseline for how often a Section 1983 claim against an officer or official clears qualified immunity and reaches discovery or trial. A single point estimate for disposition probability, calibrated to that baseline, drove the case reserve and the defense-cost accrual. With the Ninth Circuit now granting immunity on facts adjacent to what the Fifth and Eighth Circuit denied it on, that single national probability no longer holds. The same claim profile plausibly resolves in early dismissal in one circuit and full-blown litigation in another, which argues for a reserve range keyed to circuit venue rather than a single expected value, with wider ranges on claims where the circuit’s post-SCOTUS qualified immunity posture is still unsettled.
Defense cost development compounds this. Immunity denials are immediately appealable, so a Fifth or Eighth Circuit-style denial can trigger an interlocutory appeal that adds a year or more of legal expense before the underlying claim is even litigated, independent of whether immunity is ultimately granted.
What this means for your next review
Pull open Section 1983 and law enforcement liability claims by circuit and compare the disposition-probability assumption each one carries against the circuit’s most recent ruling. A claim reserved under a pre-October assumption in the Ninth Circuit, or under a pre-September assumption in the Fifth, may need a probability-weighted adjustment, and claims with an active or likely interlocutory appeal should carry a defense-cost development factor that accounts for the added year. This pairs with the diagnostic work in Washington’s negligent retention ruling, which already pushed defense-cost development higher on open public-entity claims through a different mechanism, direct-liability discovery exposure.
Watch next
Whether the Villanueva panel’s decision or either circuit’s denial draws an en banc petition or a cert petition. A grant on any of the three would either resolve the split or signal the Supreme Court intends to let circuits keep diverging on application even after setting a stricter national standard.
Sources
- Ninth Circuit memorandum opinion, Astorga v. Villanueva (October 21, 2026), ca9.uscourts.gov
- Metropolitan News-Enterprise, “Error to Deny Immunity to Villanueva Over Protest Response” (October 22, 2026)
- Bloomberg Law, “Ex-LA Sheriff Villanueva Granted Qualified Immunity on Appeal”
- Reason, “2 Recent Cases Illustrate the Limits of a Doctrine That Often Blocks Civil Rights Claims” (October 21, 2026)
- Reason, “The 5th Circuit Rejects Qualified Immunity for Cops Who Searched a Driver After a Bogus Traffic Stop” (September 28, 2026)