Qualified Immunity

The Attorney General's Overblown Fears About Scrapping Qualified Immunity

It's not likely to have the chilling effect he expects. Unfortunately, it might not do as much as criminal justice reformers expect either.

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Yesterday Attorney General William Barr expressed his opposition to scaling back or eliminating qualified immunity for police officers. Reformers think scrapping the doctrine would discourage abuses like the life-endangering restraint technique that killed George Floyd. But Barr argues that increased liability for cops—whether accomplished by the Supreme Court's reconsideration of the qualified immunity doctrine or by legislation like the bill that Rep. Justin Amash (L–Mich.) recently introduced—would have a chilling effect on good policing.

Defenders of qualified immunity often express that concern. But it seems to be overblown, for reasons that also put a damper on the hopes of the doctrine's opponents.

"I don't think you need to reduce immunity to go after the bad cops, because that would result certainly in police pulling back," Barr said on Face the Nation. "Policing is the toughest job in the country….The vast, overwhelming majority of police are good people. They're civic-minded people who believe in serving the public. They do so bravely. They do so righteously."

That position is unsurprising coming from Barr, who has expressed dismay at what he perceives as insufficient respect for police officers and the work they do. "Being a police officer is more difficult today than it has ever been before," he said in a speech at a police symposium in Miami last February. "One reason is the emergence of a deeply troubling attitude towards police in some parts of society. Far from respecting the men and women who put their lives on the line to protect us, it has become common in some quarters to scapegoat and disrespect police officers and disparage the vital role you play in society. This undoubtedly makes your already difficult job of protecting the public even harder."

That "deeply troubling attitude" must be understood, of course, in the context of police corruption and abuse. If the "vast, overwhelming majority of police are good people," curtailing those problems is in their interest as well as the interest of bad cops' potential victims. Their reputation, their relationship with the communities they serve, and their effectiveness all suffer when the public believes that officers will not be held accountable for abusing their powers. And to the extent that "pulling back" means police will hesitate before doing things they should not do—say, kneeling on a prone, handcuffed arrestee's neck for nearly nine minutes—that effect should be welcomed.

But Barr is arguing that the net effect of eliminating this barrier to civil rights lawsuits will be negative because it will overdeter police, causing them to second-guess their decisions in ways that jeopardize public safety. The Supreme Court has repeatedly expressed similar concerns.

"A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does," the majority said in Pierson v. Ray, the 1967 case in which the Court recognized a "good faith" exception to liability under 42 USC 1983, which allows people to sue government officials for violating their constitutional rights under color of law. In Harlow v. Fitzgerald, the 1982 case in which the Court said lawsuits under that statute are allowed only when they allege violations of rights that were "clearly established" at the time, the justices worried that allowing "insubstantial claims" against government officials to proceed would create "undue interference with their duties" and "potentially disabling threats of liability."

In a 2020 Columbia Law Review article, UCLA law professor Joanna Schwartz, a prominent critic of qualified immunity, carefully considers such claims, drawing on her analysis of nearly 1,200 federal civil rights cases, her survey of about 100 lawyers practicing in this area, and her in-depth interviews with 35 of them. Her conclusions suggest that Barr is unduly worried that increased liability would paralyze the police. But they also suggest that opponents of qualified immunity should temper their expectations of the good that can be accomplished by eliminating it.

Schwartz found that the vast majority of unsuccessful civil rights lawsuits fail for reasons other than qualified immunity, which suggests that the impact of abolishing it would be less dramatic than many people on both sides of the debate imagine. She nevertheless predicts that without qualified immunity, more cases would be filed against police officers. But a surge in "insubstantial claims" is unlikely, she argues, mainly because attorneys working for contingency fees have a strong financial reason to eschew such cases. And even if a larger share of civil rights lawsuits survive motions for dismissal, Schwartz thinks their success rate probably would stay about the same, since "jurors' sympathies for government defendants mean that plaintiffs would continue to regularly lose at trial."

One important benefit of eliminating qualified immunity, Schwartz argues, would be to clarify the contours of constitutional rights. Since 2009, when the Supreme Court said courts can dismiss a lawsuit under 42 USC 1983 without even deciding whether the plaintiff's rights were in fact violated, it has become increasingly difficult for victims of police abuse to locate the precedents they need to show that officers violated "clearly established" law. As 5th Circuit Judge Don Willett has observed, "important constitutional questions go unanswered precisely because those questions are yet unanswered."

Without qualified immunity, Schwartz says, "it would be more difficult for district and appellate courts to avoid ruling on the merits of plaintiffs' constitutional claims. Instead of limiting their analysis to whether the facts of a prior case were similar enough to 'clearly establish' the unconstitutionality of defendants' conduct, courts would more regularly explore and explicate the boundaries of constitutional protections. Such rulings could provide guidance to governments as they create policies and trainings for government officials, and begin dialogue with other branches of government and the body politic about shared constitutional principles."

Barr and other supporters of qualified immunity tend to assume that it decreases the burden of litigation on officers, police departments, and the governments that oversee them, which on the face of it makes sense. But based on her case analysis and the opinions of attorneys who handle such cases, Schwartz argues that qualified immunity actually "increases the cost, complexity, and time associated with civil rights litigation." She therefore predicts that eliminating qualified immunity would tend to reduce those burdens for any given case, although it probably would increase the total number of cases.

What about the impact on officers' behavior, which is the focus of Barr's fears as well as the hopes of qualified immunity's opponents? "Several studies of law enforcement officers have shown that 'the possibility of being sued does not play a role in the day to day thinking of the average police officer,'" Schwartz writes. "The majority of surveyed officers in two different studies reported that legal liability was not among their top ten thoughts when doing their work. Contrary to the Supreme Court's suggestion that police fret overmuch about the possibility of being sued while making split-second decisions, available evidence suggests that the threat of legal liability rarely enters most officers' minds when they are doing their job."

That state of affairs, Barr presumably would argue, shows that qualified immunity is working as intended. But Schwartz suggests several other reasons why officers do not worry very much about being sued:

First, law enforcement officials infrequently pay for their defense counsel and virtually never contribute to settlements and judgments entered against them…Second, available evidence suggests that most law enforcement agencies do not gather and analyze information from lawsuits brought against their officers…Third, available evidence suggests that government officials have a number of other concerns on their minds beyond the threat of litigation. Recent reports attribute the challenges of recruiting and retaining law enforcement officers to "high-profile shootings, negative publicity about the police, strained relationships with communities of color, tight budgets, low unemployment rates, and the reduction of retirement benefits." Officers unquestionably dislike being sued. But these three factors—widespread indemnification, government inattention to information in lawsuits, and myriad other concerns about accepting government employment—likely explain officers' current disregard for the threat of being sued while on the job. And these three factors would presumably continue to exist in a world without qualified immunity.

Those observations, while perhaps reassuring to supporters of qualified immunity like Barr, are hardly encouraging for critics of the doctrine. But even if the positive deterrent effect of eliminating qualified immunity is modest, there are several important reasons to do it.

First, as Amash points out, the Supreme Court has read into 42 USC 1983 exceptions that are not actually part of the statute. If Congress wanted to bar lawsuits in cases where officials acted in "good faith" or where their conduct, even when clearly outrageous, did not closely match the details of earlier cases, Congress could have done so. In that light, Amash argues, the justices have usurped the legislative role of the people's elected representatives.

Second, Schwartz suggests that more cases and more trials could "influence officer behavior" through "the disclosure of information about government behavior." She argues that "complaints, discovery, motion practice, and trial can bring to the surface valuable information about government behavior previously unknown to the public—and sometimes unknown to the government entities whose employees are implicated in the suit."

Third, as Schwartz also argues, qualified immunity encourages courts to avoid resolving important constitutional issues. Did Idaho police violate the Fourth Amendment when they wrecked a woman's home by bombarding it with tear gas grenades after she agreed to let them inside to arrest her former boyfriend? What about the Georgia sheriff's deputy who shot a 10-year-old boy while trying to kill his dog, simply because police had chased a suspect into their yard? Or the Nebraska sheriff's deputy who, while responding to an erroneous "domestic assault" report, lifted the purported victim in a bear hug and threw her to the ground, knocking her unconscious and breaking her collarbone? Or the Tennessee officer who allegedly sicced a police dog on a burglary suspect who had already surrendered and was sitting on the ground with his hands up? Or the California cops who allegedly stole cash and property worth more than $225,000 while executing a search warrant?

In these and other cases, we do not know the answers, because appeals courts dismissed them without addressing the constitutional questions they posed. Cases like these send the message that Americans have no remedy when police violate their rights in appalling ways, unless they can locate precedents with closely similar facts. As Willett notes, "qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly." Or as Justice Sonia Sotomayor puts it, qualified immunity "tells officers that they can shoot first and think later."

Schwartz agrees that such decisions "deny what is often the best available relief to plaintiffs who have been grievously wronged by government actors, suggest to government officials that they can violate the law with impunity, and send the troubling message to victims of misconduct that they are not deserving of constitutional protection." At the same time, she cautions against excessive optimism about the benefits of scrapping qualified immunity.

"Doing away with qualified immunity will not be the silver bullet that critics of qualified immunity hope," Schwartz writes. "In qualified immunity's absence, there would remain multiple other substantive and procedural barriers to relief, judges and juries predisposed against civil rights plaintiffs, and local government practices—including widespread officer indemnification, budgetary arrangements that shield agencies from the financial consequences of suits, and inattention to lawsuit data—that dampen the deterrent effect of civil rights suits. Eliminating qualified immunity will not address these barriers to relief and reform. Yet eliminating qualified immunity will also prompt several significant shifts in civil rights litigation: It will clarify the law, reduce the cost and complexity of civil rights litigation, increase the number of attorneys willing to consider taking civil rights cases, and put an end to decisions protecting officers who have clearly exceeded their constitutional authority. Eliminating qualified immunity should, therefore, be understood as a preliminary—but important—step toward greater accountability and deterrence."

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  1. I do not care one bit about Barr’s opinion about anything.

    1. I used to think he was one step above Jeff Sessions. It didn’t last long.

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  2. TD;LR

    Barr worried that the principles of personal accountability might apply to 5-0.

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  3. Barr should be more worried about cops who want to wash the feet of stinky, sub-human BLM scum.

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    2. Spoken like a true nazi

    3. IFthe option are blacks are subhuman or white people should be washing the feet of thugs and bullies (or else), I can only hope you all find a way to murder all of each other.

  4. There seems to be an “implied immunity” to prosecution under the same laws that apply to everyone else in addition to “qualified immunity” to civil suits.

    1. That’s the problem. Cops rarely face prosecution for the actual crimes they commit including rape, theft and murder thanks to state statutes, court decrees, union contracts and the thin blue line. QI reform will do nothing to change that. And as noted above cops don’t worry about civil suits because they aren’t personally on the hook. QI reform will do nothing to change that. Still a worthy cause but it won’t do what a lot of people seem to think it will.

  5. “a chilling effect on good policing.”

    Does he mean a chilling effect on overzealous and physically abusive cops with dangerously low IQs? Seems like the citizens would be much safer if the king’s men had even a little bit of concern that unnecessarily hurting/killing citizens might have repercussions.

    1. I grew up in Detroit and understand what the police have to deal with. I remember the blackout years back and the first thing the gentle citizens did was steal our delivery truck and ram it though the front of an electronics store.

      Yours is the most apt screen name I’ve encounter on any forum. It fits you perfectly.

      1. Yes, I remember learning how the founding fathers very much supported the notion that if a public employee has a tough job, they should have free reign to harm the innocent.

  6. About all I can say is that, while Bill Barr and BLM deserve each other, none of the rest of us deserve either one.

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  7. “Being a police officer is more difficult today than it has ever been before,” he said in a speech at a police symposium in Miami last February. “One reason is the emergence of a deeply troubling attitude towards police in some parts of society. Far from respecting the men and women who put their lives on the line to protect us, it has become common in some quarters to scapegoat and disrespect police officers and disparage the vital role you play in society. This undoubtedly makes your already difficult job of protecting the public even harder.”

    Apparently, Mr. Barr has never been dealt two-pair, aces and eights, all black.

  8. Ending qualified immunity surely won’t solve all of our problems, but it’s a good start.

  9. I think that this facebook post pretty much sums up why I think Barr is off base.

    https://www.facebook.com/corey.cooper.7712/posts/3378016915544102

  10. Barr is a totalitarian, and totalitarians need enforcers.

  11. They don’t think about being sued because they have so internalized they will never be held accountable no evaluation is necessary.

    Eliminating QI and unions are the best path to reform. Then we need to completely change management. The current group has control because it knew how to navigate politically given these corrupt practices. We need to replace them with people who can be effective.

  12. Of course, if the loser paid, this would be much less complex.

  13. Too bad. The FBI, especially (part of Barr’s remit) has spent any consideration all law enforcement may have deserved…

  14. Maybe … just hear me out here! … if being a cop is so hard, they should change the rule so that you have to PASS an IQ test before they give you a gun.

    1. IQ has little to do with reacting to violence. I’ve been a number of edited videos where the cops were shown hitting the “innocent” person. They conveniently edited out the start of the video where the “innocent” person violently attacked a police officer.

      1. It’s settled then. Cops never misbehave.

  15. Police accountability has three enemies.

    QI
    Unions
    Records secrecy

    Until reform comes to these three, it’s all for show.

    1. You forgot about their alliance with local prosecutors.

  16. I don’t think anyone is arguing to scrap qualified immunity entirely. People doing their jobs have to be allowed a certain amount of leeway on the assumption that they are doing what a reasonable person might conclude is the correct course of action and not hold them criminally liable for an honest mistake.

    But no one has a problem with cops making honest mistakes or reasonable assumptions.

    The problem is cops doing outrageously unreasonable or outright illegal things, committing blatant theft, fraud, assault, even murder with total impunity. It’s not a matter of second guessing police in the heat of the moment. I’m all for giving them the benefit of the doubt in any tense situation (which they did not intentionally or through gross negligence create). But when there is no immediate threat to officer safety the officers have a responsibility not to create such a threat or proceed with obviously unreasonable (or illegal) activities.

    1. I do argue that qualified immunity should be scrapped entirely. It is at least contrary to the spirit of the Constitution (Article I, Sections 9: No Title of Nobility shall be granted by the United States..) if not the letter, as well as being contrary to the spirit of the Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal..”).

      It is characteristic of recipients of such titles that they are at least to some degree regarded as being above the law. Black’s Law Dictionary (5th ed. 1979) notes that “Titles of Nobility confer legal privileges…”

      Giving members of the Executive any degree of immunity not likewise granted to “ordinary citizens” is against the principles on which this country is founded.

      1. That’s ridiculous. Police officers are not nobility and that aspect of the constitution has nothing to do with the topic at hand, also the Declaration of Independence is not a piece of law.

        If you want to have a police force you can’t have them being taken to court every time they arrest someone for any reason, no matter how legitimate. Since you want to go all constitutional on this the 10th amendment reserves all powers not granted to the federal government by the constitution to the states. This is why states operate general police forces and the federal government does not.

        1. Stealing $250,000 from evidence-collection should be both a criminal and a civil offence, to note one recent example.

          1. I’m sure any ordinary citizen could steal a quarter of a million dollars, get caught with the money, and not be convicted of grand theft just like those officers were. Right?

        2. “If you want to have a police force you can’t have them being taken to court every time they arrest someone for any reason, no matter how legitimate.”

          Nice strawman you’ve got there.

    2. Qualified Immunity as created serves an important purpose in preventing ex post facto decisions against government agents who had every reason to believe that what they were doing was legal. Qualified Immunity as practiced nitpicks about minutiae and too often serves as a rubber stamp for improper behavior.

      1. Seriously, QI would get Chauvin off in a civil suit. I doubt there’s any court case on the record stating that kneeling on a suspect’s neck for 8 1/2 minutes is a violation of their constitutional rights.

  17. Police have a tough job. However everyone should be held to the same set of rules regardless of their job. I would be in favor of ending Qualified Immunity across the board. This would include Immunity for Judges, Prosecutors, All Politicians including Mayors, City Council, Governors, Representatives, Senators and Presidents and every government employee.

    I also believe that including a penalty for plaintiffs and their lawyers who bring forward cases that are deemed bogus by the jury. A bogus lawsuit is not the same as loosing in court, as there can be a reasonable lawsuit that you can’t prove. For jury to determine that a lawsuit is bogus there would be a higher standard.

    This would help to eliminate the number of bogus lawsuits intended to hassle. This is much in line that every citizen including politicians should live under the rules that the politicians make. Congress should not be allowed to make exceptions for themselves to exempt themselves from what they expect us to live under.

    One last item is that crap laws need to be eliminated. If a crime does not have a victim then it really should not be a law. As long as an action does not violate anyone’s rights or their property then there really isn’t much of a logical reason to have the law.

    1. In Illinois we have something called the Tort Immunity Act which allows taxing bodies to levy an unrestricted property tax to pay off liability judgments. The purported purpose is to prevent small subdivisions of the state from being bankrupted by large judgments. Of course in the real world it creates some pretty sweet opportunities for plaintiffs attorney to negotiate some fat money in some pretty frivolous cases. The government attorneys are really too lazy to go to trial and to the politicians it’s just pass through money. It also allows the levy to be used for “liability prevention”. So let’s say the city council wants to remodel city hall with all new flooring and state of the art lighting but they’ve already exhausted their capital improvement fund. The attorneys will advise them that the whole building is slip and fall hazard just waiting to happen and voila they just levy a tort tax. No referendum required.

    2. That’s exactly the right approach. Follow the Constitution, Article I, Sections 9: No Title of Nobility shall be granted by the United States. As long as we nurture a ruling class, we will never have accountability. We unfortunately don’t elect thoughtful, intelligent people to public office and QI cannot be their license to serve their desire to be in office vs the commitment to serve the people with selfless motivation.

  18. It is problematic to assume that the police are the primary agency to insure public safety. My safety is first and foremost my responsibility and not the police’s … and millions of Americans find this to be a principle reason to own and use guns.
    A civil society needs police, and especially in matters of enforcing the law.

  19. “…”Policing is the toughest job in the country”…”

    Bull…
    Shit.
    So if we start by ignoring that lie, we can pretty much ignore the rest of his claims.
    Next?

    1. That’s what I was saying above:

      “Being a police officer is more difficult today than it has ever been before,”

      Aces and eights, all black, is called the dead man’s hand. Supposedly, it’s the hand notorious frontier law man Wild Bill Hickok was holding when he was shot in the back of the head. To act like policing today his harder than in the 1860s or the 1930s or the 1960s is just dumb.

  20. Barr’s sentiments always fall down on the side of authoritarianism.

  21. Its an election year and republicans are now the “police union” party, it seems.
    Seriously, whenever you have taxpayers funding a group of civil servants, there are dozens of law grads lining up to perform the contracts, negotiations and defend the union. Dozens of financial firms looking to score the pension funds. City council members looking to score free private security (see Los Angeles). Health insurance firms looking to score 100% taxpayer funded gold plate health care benes for the union. On and on….

    Democrats now want to shuffle money from cops to teachers unions (I believe LA, back in 2012, spent 70k per student with a 30% graduation rate), When you dig deep enough, it seems that the state and U.S. taxpayer is an unlimited ATM machine for big blue cities.

    Do I think that ALL local/state gov’t employment should be “At Will”- YES. Am I going to vote for a democrat because the republicans are the police union party and Democrats are the all labor markets, public/private, should be unionized, except for cops-NO.

  22. Eliminate qualified immunity and replace it with misconduct insurance

  23. Barr’s opinion, pardon the pun, is that of a BAR Association shill who doesn’t understand that respect is earned, through respectable conduct, not by municipal terrorism. To be expected from someone so despicably out of touch.
    Their so called immunity really doesn’t matter once you have the understanding that your rights aren’t “civil”. I would never bring an action against a cop or any other public official in a civil/statutory jurisdiction. For these professional bureaucrats to believe that my rights are abrogated by their statutes is the most heinous crime of all. The root of tyranny & sedition. It is the shell game the con artist BAR Association has been playing with the constitution for nearly 150 years and Americans have suffered nothing but tyranny from it and it’s time for it to end.
    Even under *Their* statutory process, any public servant’s immunity is destroyed the instant they exceed their jurisdiction, making their every action, ultra vires (outside their authority), thus vacating their office and all it protections and immunity. Practically every municipal cop and most Sheriffs typically can’t get through the first half hour of their shift without exceeding their jurisdiction. 99.9% of their revenue extortion victims suffer denial of due process & deprivation of rights under color of law. So their “immunity” is just a fraud either way you look at it.

    “Emergencies have always been the pretext on which the safeguards of individual liberty have been eroded”. – Friedrich Hayek

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