Qualified Immunity

Imagining a World Without Qualified Immunity, Part I

What impact would abolishing qualified immunity have on civil rights litigation, police misconduct, and government accountability?

|The Volokh Conspiracy |

Qualified immunity shields government officials from financial liability, even if they have violated the Constitution, so long as they have not violated "clearly established law." According to the Supreme Court, the law is only clearly established if a prior decision has held very similar facts to be unconstitutional. Officers are entitled to qualified immunity even if they have engaged in clear misconduct, and even if they knew what they were doing was wrong.

Every year, courts across the country grant government officials qualified immunity in decisions that describe tragic facts and outrageous behavior; in them, defendants who have searched homes without probable cause, stolen property in police custody, fabricated  evidence, and used excessive force are shielded from liability.

Courts, commentators, and organizations across the ideological spectrum are calling on the Supreme Court to abolish or severely limit qualified immunity. Presidential candidates Julián Castro, Bernie Sanders, and Elizabeth Warren have made eliminating qualified immunity part of their platforms. And, despite the Court's apparent enthusiasm for qualified immunity, several sitting justices have indicated they are open to rethinking the doctrine.

Justice Sotomayor, sometimes joined by Justice Ginsburg, has criticized the Court's qualified immunity decisions for undermining government accountability by "sanctioning a 'shoot first, think later' approach to policing." And in Ziglar v. Abbasi, Justice Thomas criticized the doctrine for straying from its common law foundations and recommended to his colleagues that, "[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence."

Although the Court has yet to accept Justice Thomas's invitation, it seems like only a matter of time until it does. Petitions for certiorari in qualified immunity cases are now regularly invoking Justice Thomas's language in Ziglar. The ACLU, the Cato Institute, and the Law Enforcement Action Partnership, among others, have submitted multiple amicus briefs to the Supreme Court, urging it to reconsider the defense. On October 1, the Supreme Court will consider a petition for certiorari in one of these cases—Baxter v. Bracey. Whether or not the Court grants cert. in Baxter, there is every reason to believe this coalition of critics will continue to bring their arguments to the Court.

If the Court does decide to take a closer look at qualified immunity, it will find compelling reasons to greatly restrict or abolish the defense. The Court originally justified qualified immunity as drawn from common law defenses available when Section 1983 became law, and now justifies the doctrine as necessary to shield government defendants from the costs and burdens of litigation in insubstantial cases. But, as critics have shown, qualified immunity doctrine bears little resemblance to defenses available when Section 1983 became law, undermines government accountability, and is both unnecessary and ill-suited to shield government defendants from the burdens and distractions of litigation. (I set out these arguments in a series of posts on Reason last year.)

The Supreme Court has written that evidence undermining its assumptions about the realities of constitutional litigation might "justify reconsideration of the balance struck" in its qualified immunity decisions. But the Court may fear how constitutional litigation might change if they take the type of dramatic action compelled by the record. The Court has repeatedly described qualified immunity as critically important to government officials and "society as a whole," suggesting a fear that restricting or eliminating the doctrine will do significant harm. To date, the strongest defenses of qualified immunity have been various predictions that the world would be worse off without it: Plaintiffs would file many more frivolous suits, plaintiffs would recover much more money against government defendants, and these suits and costs would threaten individual defendants' pocketbooks, bankrupt local governments, chill officer behavior on the street, and discourage people from accepting government jobs. Faced with these bleak prognoses, the Court may be reluctant to reconsider qualified immunity doctrine, despite its many flaws.

I don't share these concerns. Of course, it is impossible to know for certain what impact eliminating or restricting qualified immunity might have. But, while these bleak prognoses have been made fleetingly and without empirical support, my views about a post-qualified immunity world are informed by the most comprehensive examination to date of the role qualified immunity plays in Section 1983 litigation—including a study examining the dockets in almost 1200 federal civil rights cases filed in five federal districts over a two-year period, surveys of almost 100 attorneys who represented plaintiffs in these cases, and in-depth interviews of thirty-five of these attorneys—in conjunction with my studies of police indemnification practices and government budgeting for settlement and judgment costs. All empirical studies have limitations, and these studies are no exception. But they present the most comprehensive picture to date of the role qualified immunity plays in constitutional litigation and therefore offer the best starting place to begin imagining constitutional litigation in a world without qualified immunity.

In an article forthcoming in Columbia Law Review, excerpted here this week, I set out several predictions that differ in important ways from conventional wisdom: plaintiffs' and defendants' litigation success rates would remain relatively constant; the overall cost and time associated with litigating constitutional claims would decrease; more civil rights lawsuits would be filed, but other considerations would continue to discourage attorneys from filing insubstantial cases; and settlements and judgments would continue to have a limited impact on officers' and municipalities' dollars and decisionmaking.

If my predictions are correct, abolishing qualified immunity would make litigation more efficient, increase the number of suits filed, and shift the focus of civil rights litigation to what should be the critical question at issue in these cases—whether government officials exceeded their constitutional authority. But eliminating qualified immunity would not dramatically increase the rate at which plaintiffs prevail; open the floodgates to meritless lawsuits; or alter government indemnification and budgeting practices that dampen the effects of lawsuits on officers' and officials' decisionmaking.

These predictions should offer some comfort to justices on the Court who might fear that doing away with qualified immunity could somehow jeopardize policing or "society as a whole." But these predictions should also temper the optimism of those who believe that doing away with the doctrine will usher in a new age of government accountability. Eliminating qualified immunity would increase access to the courts, clarity about the law, and transparency about the conduct of government officials, but it would not fundamentally shift dynamics that make it difficult for plaintiffs to redress constitutional violations and deter official misconduct.

Over the next four days, I will explain the bases for these predictions, and then offer some thoughts about how they should guide next steps by the Court and qualified immunity's critics. See you tomorrow.

NEXT: Sober Cannabis Consumers in Utah Already Can Be Convicted of Stoned Driving. This Legislator Thinks the Law Is Too Lenient.

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  1. I think the Court should consider that, if you were drafting a new Declaration of Independence today, “qualified” immunity is the new, “For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:”

    And they should think about the fact that one of the primary purposes of having a legal system is to discourage private justice by providing public justice. What are the long term consequences of allowing these outrages without any legal recourse?

  2. Imagine all the people
    Suing the police

    1. Wouldn’t that be loverly…

    2. Wouldn’t that be loverly…

  3. I get QI and the basic reasoning.

    What I don’t get is the “established law” exception.

    Do we need an established law in order to punish a cop for beating/tasing a handcuffed suspect and?!?

    1. The problem isn’t the reasoning, or the exception, but its implementation. It doesn’t make sense to allow someone to be successfully sued when the behavior’s legality was questionable (for example, whether using an infrared lamp constituted an unreasonable search).

      But allowing the “clearly established law” to be defined such that basically any obviously immoral and criminal behavior is protected as long as a court hasn’t ruled on that exact issue under the exact same set of circumstances in the past is the problem.

      1. This interpretation of “clearly established law” is precisely what reveals QI to be The Emperor’s New Clothes: a simple attempt to insulate the Judiciary and its minions in law enforcement from the Constitution as much as possible.

        In any case, absolute immunity for prosecutors is worse in the big picture. Perhaps reducing that to QI might help. Unless the Courts decide that a Brady violation is not considered clearly established law if it doesn’t have the same defendant as previous cases.

      2. “It doesn’t make sense to allow someone to be successfully sued when the behavior’s legality was questionable.” Why not, when everyone not working for the government can be not only sued, but even imprisoned for breaking a law that actually was unclear until a court deciphered it?

        Giving ONLY those who were hired to enforce the law a pass on knowing the law, obeying the law, and avoiding the fuzzy edges of the law is outrageously nonsensical and corrupt. Police and other government officials should be held to a higher standard, not a lower one.

    2. Why does it have to be absolute? How about 50% immunity for non-established, obvious bad behavior, but you still get stuck for a chunk if you really should have known if you had any common sense or an 85 IQ? If the government had to bear the costs of its own gross negligence then it would be a lot smaller.

      1. The union’s going to demand (and mostly get) indemnification from the employer.

        No politician wants to be the reason cops are walking a picket line instead of the beat. The campaign ads write themselves.

        1. 1) Abolish the cops’ unions (and all other government employees’ unions). They function to support criminal behavior, and any cop that willingly joins one should be suspected of either criminal inclinations, or else being too stupid to be issued a gun or given ANY power over their fellow citizens.

          2) Require cops to carry personal liability insurance. Raise their pay enough to cover this cost for GOOD cops. But if the insurance companies won’t insure an individual cop, take his badge. If they refuse to ensure an entire department because of a history of misbehavior, reform it, starting by firing everyone at the top, and working down until they find the good cops – or have fired and replaced the entire department.

        2. The union’s going to demand (and mostly get) indemnification from the employer.

          That seems likely. See Police Indemnification, a 2014 article from the post’s author.

    3. “What I don’t get is the ‘established law’ exception.”

      Suppose a court with jurisdiction decides that stopping a car for an unrelated moving violation does not justify stopping and searching the driver.
      Cops have been taught (in their classes earning a degree in law-enforcement, by their department’s legal-education and policy training, and by senior officers in policy and practice) that if they want to stop a car without probable cause, they can follow it and watch for a moving violation, then make the stop. Tomorrow, though, that’s a violation of the driver’s rights. So they can sue the cop who made the stop. But wait… every driver who was ever stopped under the same conditions can ALSO sue and claim their rights were infringed, right up until the statute of limitations runs out. So cops can be sued for doing something they were told it was legal to do, that was in their patrol manual as “OK”, and that they were taught to do.
      That’s where QI pops up and says “hold on, if the ruling that made such stops improper hadn’t even happened yet, holding the cops responsible for knowing that ruling was coming isn’t cool. Immunity for the cop”.

      That’s why QI exists… because the law changes, sometimes quite substantially, and it takes time to educate and train the police (and other government officers) on the changes.

      1. Well, sure, and if it were only used under those circumstances, there’d be far less outrage about it.

        The problem is when they get into activities by the police that are obviously wrong, even illegal, and extend (un)qualified immunity to them because they’ve never put the police on notice that they can’t beat an unresisting left-handed suspect unconscious on a Tuesday.

        OK, I’m exaggerating a little, but only a little. Qualified immunity for cops who rob the subject of a search warrant? Like cops aren’t already under general notice that they aren’t allowed to rob people?

      2. That is the core example of what QI is supposed to protect from.

        But the “clearly established” requirement gets it backwards from your case. QI should be limited to situations where the courts change the law from what was accepted before.

      3. Do the courts and police grant you as a private citizen any breaks because the law changes? Do they even bother to educate and train you or me on those changes? Or is the standard for us peons “ignorance of the law is no excuse”?

        I’d be okay with your argument if the rule were evenly applied. I am not okay with the double-standard that requires citizens to know all aspects of the law but lets cops off the hook.

        1. It’s worse than that – this double standard lets those who are paid to understand the law to be ignorant of it!

    4. I think of it as functionally equivalent to asking whether the conduct was ultra vires.

  4. Here’s my confusion: if the (a?) goal is to compensate those who have been wronged, why the need to go after the individual rather than the individual’s employer (i.e., the government)?

    1. Because under the Monell case, the individual’s employers (the municipalities) are not liable unless such individual was acting pursuant to city policy. The policies are never going to directly sanction such acts, and even if the cops do so knowing the cities will “look the other way,” the courts won’t seem to impose liability based on that.

  5. I think the whole qualified immunity argument gets lost on most. The problem isn’t with QI. Courts recognize QI because you can’t have Jim Bob running to the courthouse every time Johnny Law stops him for questionable reasons. Sure maybe Johnny Law shouldn’t do that, but what is the proper corrective mechanism? Probably not hundreds of thousands of section 1983 suits with taxpayers on the line for all the legal bills and damages. (Or maybe lawyers who would be advocating for throwing out QI and would get big bills as a result differ…)

    The problem with QI is the “established law” portion of the test. That is where it could be more flexible.

    1. Right, as I noted above, the problem isn’t the doctrine, but its implementation.

      1. There are basically two problems.

        One is that the doctrine itself, however defensible, was invented by the Supreme court, rather than being enacted by the legislature.

        The other is that it’s being implemented by people who want unqualified immunity. And the doctrine is fuzzy enough to allow them to get their way.

        And why is it that fuzzy? Because it was invented by the Supreme court, not enacted by the legislature, and so takes the form of general instructions, rather than detailed legislation.

        Really, the only good answer to this is for the Supreme court to admit they made a mistake inventing qualified immunity, get rid of it, and let Congress replace it if they see fit.

        Not seeing fit to do so would be a legitimate choice by the legislature, of course. The power to legislate is also the power to decide that legislation isn’t needed…

        1. You had me at the first point. You need not go further.

        2. I’d agree with that. But in any case, the “clearly established law” prong, in its implementation, is 10 times the problem the doctrine as a whole is.

          1. Well, sure, because the “clearly established” prong is being executed by judges who favor absolute immunity for police. You can’t tell me that it isn’t already clearly established that police aren’t allowed to commit crimes. But cops who commit crimes against suspects often get QI anyway.

            Why? Because the judges are only pretending to apply the “clearly established” prong.

            If we’re going to keep QI we need some kind of sanction for judges who engage in this sort of conduct.

            1. That’s true. It’s much like the liberal judges in the 2nd Amendment cases who claim to be applying intermediate scrutiny, but are really applying rational basis. They don’t actually believe the 2nd Amendment protects any right at all, but they can’t come out and say that, so they instead create a “test” that purports to actually scrutinize the government’s actions, while really not doing anything.

  6. One could easily retain a concept of qualified immunity but interpret it more narrowly, to hold only that recent decisions – perhaps only recent non-uninimous decisions – should not have retroactive effect.

    There is no need to interpret it so broadly that government officials are permitted to do whatever they want, however obviously prohibited by the plain meaning of the law, so long as there has been no prior court decision covering that conduct specifically.

    Qualified immunity should apply only where there is ambiguity, at least a plausible argument that the conduct involved could be legal. Similarly, it should not apply to obvious gross incompetence.

  7. Let’s presume that QI is abolished. Who, in their right mind, would willingly go into law enforcement? Nobody. Personal liability is too great. And cops would not be able to afford the law enforcement malpractice insurance premiums.

    1. Look, police departments are still perfectly free to compensate police for lawsuits where they think the conduct defensible. Who would go into law enforcement in a world without (un)qualified immunity? The people who went into it before the Supreme court pulled this doctrine out of their nether regions!

      You know, people who weren’t planning on committing robberies during searches, weren’t planning on beating compliant suspects to death, weren’t planning on handing suicidal inmates rope and turning their backs…

      1. Right. Were we as litigious 50 years ago? If IQ is abolished, NOBODY in their right mind would throw themselves into law enforcement while hoping that the police department will hopefully compensate you because a violent offender got upset that you knocked them out with a flashlight.

        1. Reflexive cop succors are among my favorite faux libertarians.

        2. Man, how have I lived and these all these years without qualified immunity?

          I thought it was due to stuff like, you know, obeying the law and refraining from jacking people around. But now you’re saying it was insanity.

    2. Then let congress pass a law to grant some form of immunity. It is not the job of the courts to legislate.

    3. They don’t have to. The departments would indemnify them. That’s like saying, who would go into becoming a corporate officer when any decision you make can put you on the business end of a lawsuit? Considering that those without a lot of other good options are who become cops in our major cities, which make up most of the cops, I wouldn’t lose any sleep over it. We’d probably be better off with fake police cars with tinted windows parked randomly and a smaller police force than the got-my-ass-kicked in high school types running around snapping necks.

    4. Nonsense.

      Accountants, business owners, convenience store clerks, dentists, ethnobotanists, farmers, geographers, haberdashers, … , zoologists don’t have qualified immunity. People “in their right minds” go into those occupations.

    5. Let’s presume that QI is abolished. Who, in their right mind, would willingly go into law enforcement? Nobody. Personal liability is too great. And cops would not be able to afford the law enforcement malpractice insurance premiums.

      Strangely, surgeons, engineers, bus drivers, chemists, pilots, chefs, physicians, lawyers, pharmacists, electricians, and auto mechanics, among many many many many other professions, manage to attract people without the shield of nearly unlimited immunity.

  8. Since the lawyers want the deep pockets of government and have to sue through the defendants to get at it, just cut the officials out of it.

    This isn’t to say they should’t suffer firing or criminal prosecution if applicable. Just let the suits go around them.

  9. According to the Supreme Court, the law is only clearly established if a prior decision has held very similar facts to be unconstitutional. Officers are entitled to qualified immunity even if they have engaged in clear misconduct, and even if they knew what they were doing was wrong.

    I agree with the other criticisms of QI commenting here, but would add that this notion has always struck me as particularly bizarre.

    Apparently, police are expected to be up-to-date on court decisions, but are not required to use even a gram of common sense as to whether something violates an individual’s rights, no matter how obvious the violation.

    1. Yeah, there should be an “obvious by inspection” exception to QI.

    2. Yes, it might be very enlightening to see a fictional “day in the life”-type work in which all of the law’s implicit assumptions concerning peoples’ lives, abilities and predilections were in fact true. (I was going to call this a parody, but that wouldn’t be correct, as the point of such a work would not be to caricature the law’s assumptions, but rather to illustrate their absurdity by actually taking them seriously).

  10. The article above lists the likely consequences of aboloishing qualified immunity. Let’s categorize them.

    Plaintiffs would file many more frivolous suits – bad.
    Plaintiffs would recover much more money against government defendants – neutral.
    And these suits and costs would threaten individual defendants’ pocketbooks – to the extent the defendants actions were in fact wrong, good. To the extent they were wrongly accused, neutral. It’s no different than the consquences of false accusations that we peons have to suffer.
    Bankrupt local governments – again, to the extent the actions were actually wrong, good.
    Chill officer behavior on the street – always good.
    Discourage people from accepting government jobs – good.

    On balance, those don’t sound like “bleak prognoses”.

    1. What’s really bankrupting local governments right now are pension obligations, so I’m not sure what effect lawsuits will have right away. Most places have re-insurance or are in a municipal pool, and they would only have to pay up till their cap before the pool kicks in. I look at it this way, Chicago has to pay millions every year for what it’s cops do, but that is a pittance compared to what it owes it’s current and former employees in pensions.

    2. “Discourage people from accepting government jobs – good.” Why would that be good? (Narrow focus on that question, leaving aside issues whether that effect would occur should qualified immunity be removed and whether, even if it were to occur, removing qualified immunity would be a net plus.) Back when I was young enough to be in the workforce, you couldn’t have paid me enough to be a police officer even with qualified immunity. It’s a tough and complicated job requiring quite disparate skill sets and personal characteristics, some of which many of us lack. But isn’t that job a necessary one? Why do we want to discourage good people from taking those jobs? (I get that removing qualified immunity might disproportionately discourage bad people from applying for those jobs; but even if that were so [It’s not obvious to me that it is], you still have a reduction in the absolute number of good people willing to fill those jobs.)

      1. As a veteran (then and still chronically underpaid for the risks soldiers are expected to take), there is no shortage of good people willing to do what’s right simply because they believe that it’s right. Good people will take the job despite the pay because it brings with it lots of intangible values-based benefits.

        Will there be a few people right on the margins who are incrementally discouraged from taking the job? Maybe. But I think those will be vastly outweighed by incrementally discouraging the bad people from taking the job.

        1. Police departments don’t want those kinds of people.

          People willing to do what’s right simply because they believe that it’s right would report police misconduct when they witness other officers engaging in misconduct. They can’t have that.

          When someone like that manages to seek through the screening process, PD management and the local police union will collaborate to do everything they can do drive them out.

          1. I know that was intended to be a cynical joke but let’s take it seriously for a minute. I agree that we have a strong incentives problem in many police departments. Yet the same risks exist in military units. And they are known to have occurred in militaries in the past. Despite that, we don’t see the nearly same levels of cover-up and systemic abuse that gets reported about police departments. It’s worth considering why.

            My hypotheses off the cuff include some combination of the following:
            – The modern military regularly rotates officers and staff, breaking the incentive to cover up for long. Local police on the other hand, stay in the same chain of command for their entire careers.
            – The US military has a robust Inspector General program that is functionally independent of the chain of command. Police Internal Affairs departments are not as well funded or supported and generally report within the same chain of command.
            – The US military is not saddled with a union.
            – The modern military puts a lot more time, effort and money into soft issues like esprit and values.

  11. I expect that QI, if it is entirely removed or significantly pared back, will not result in a flood of lawsuits, but rather a rising tide over time until (to mix metaphors) the pendulum has swung the other way. The legal support structure just isn’t there to make a flood of lawsuits as the OP notes, but he neglects the reality the incentives (deep pockets) to sue are immense. Before long, a decade a least, you’d hear conservatives complain about lawsuits against police are driving up property taxes like they complain about medical malpractice driving up the cost of insurance. They won’t be wrong either.

    That said, is there a comparative Western nation that we could compare the U.S. to in this regards? Is there a country like Germany or England or Spain where QI does not exist, and there is/isn’t lots of suits against the police for malfeasance?

  12. “surveys of almost 100 attorneys who represented plaintiffs in these cases, and in-depth interviews of thirty-five of these attorneys”

    Question: How many attorneys representing defendants did you survey and interview? (Genuine question: I’m keeping an open mind on the overall argument, and I may have just missed something in your description that would allay possible concerns that the research design was imbalanced.)

  13. My fix to qualified immunity is more simple. The biggest issue I see is Monell and getting rid of vicarious liability even though it exists everywhere else.
    1. If it violates the constitution but wasn’t clearly established Government pays
    2. If it violates the constitution and is clearly established the individual pays

    Either way the victim is being compensated and someone has incentive to ensure the actions are within constitutional bounds. This further aids in getting the constitutional questions answered because it has to be, you can’t just say wasn’t clearly established and leave it at that the way courts do now.

  14. I’ll offer a possible outcome of eliminating qualified immunity… suing public officials will become a new leisure activity for the incarcerated.

    Did you get convicted? Here’s what you do: Sue the prosecutor, the public defender who represented you, the judge, and anyone else you can think of, for every offense, real or imagined or both, that you can think of.

    Bonus: Corrupt and sloppy prosecutors and cops get away with it even more, because NOBODY believes a con who claims the prosecutor was corrupt or the cop was sloppy in their procedure… they just sue for the fun of it.

    1. To even get to where a judge grants QI, there has to be a lawsuit filed. That part is already happening anyway.

      If QI was eliminated, judges could still grant summary judgment on frivolous suits, which is the exact same level of protection people in normal lines of business deal with everyday.

      What would be addressed are the cases where the judge admits there’s plenty of evidence that someone’s rights have been violated but is forced to grant QI.

  15. Ah yes…what would happen.

    Every decision a public official makes, if even potentially maybe illegal, would be subject to lawsuit. And lawsuits would FLY. Moreover, they would need Jury trials to decide “the frame of the official’s mind”.

    Every member of the President’s administration would have a lawsuit. Everyone would be reporting to a trial, for any consequential decision at all…. Government would stop to a halt, as officials would be paralyzed by lawsuits.

  16. Reflexive cop succors are among my favorite faux libertarians. Capsa Susun Online

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