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Qualified Immunity

States Can Reform Qualified Immunity on their Own

State reform isn't a complete substitute for abolition of the federal judicial doctrine. But it can achieve a lot. A recent Colorado law provides a model other states would do well to imitate.

|The Volokh Conspiracy |

The death of George Floyd and resulting nationwide protests against police abuses have focused renewed attention on the legal doctrine of "qualified immunity," which all too often enables law enforcement officials to escape liability for egregious violations of constitutional rights. Unfortunately, the Supreme Court recently refused to take any cases that might overturn or limit the dubious doctrine it itself created. Congress could potentially abolish or limit qualified immunity by adopting new legislation curbing it. But Senate Republicans say that such a move would be a "poison pill" and it's not clear that GOP supporters of reform can gather enough votes to get it through this year.

The Supreme Court, Congress or both might yet revisit this issue in the future. But in the meantime, there is much that state governments can do without waiting for federal action. The vast majority of law enforcement operations—and law enforcement abuses—are conducted by state and local police. State governments can address their misdeeds without waiting for either the Supreme Court or Congress to act.

The state of Colorado recently passed a reform law that is a model of its kind, one that other states would do well to imitate. Jay Schweikert of the Cato Institute has a helpful description of the Colorado law and its advantages:

Colorado Governor Jared Polis has signed into law Senate Bill 20–217 ("SB-217"), otherwise known as the Law Enforcement Integrity and Accountability Act. SB-217 includes a range of major policing reforms… But perhaps most notably, the law ensures that police officers in Colorado will not be able to avoid liability for their misconduct due to the unlawful shield of qualified immunity.

While many are summarizing SB-217 as "ending qualified immunity" in Colorado, what the law formally does is permit individuals to bring claims against police officers who violate their constitutional rights under Colorado law. SB-217 is therefore a kind of "state analogue" to Section 1983, our main federal civil rights statute. Whereas Section 1983 creates a cause of action allowing individuals whose rights are violated under the federal Constitution to bring a lawsuit for damages in federal court, SB-217 allows individuals whose rights are violated under the state constitution to bring a lawsuit for damages in state court.

Colorado, like most states, has a bill of rights that largely mirrors the federal Constitution (and in some ways is even more protective) so this means that SB-217 will cover things like excessive force claims, unlawful arrests, etc. And most importantly, SB-217 specifically provides that "qualified immunity is not a defense to liability pursuant to this section." So, the law does not technically "eliminate qualified immunity," insofar as we're talking about the federal doctrine — if Coloradans bring Section 1983 claims in federal court, those claims will still be subject to qualified immunity. But the law does ensure, at least with respect to police officers, that Coloradans will have a robust alternative remedy to Section 1983 claims for violations of their constitutional rights.

Colorado is not the first state to enact a "state analogue" to Section 1983, but it is the first state to specifically negate the availability of qualified immunity as a defense through legislation. As it turns out, that clarification is crucial, because in nearly all of the other states that have passed similar laws, state courts have incorporated a similar or identical version of federal qualified immunity, even when the relevant statute says nothing about it.

As Schweikert points out, SB-217 doesn't technically eliminate qualified immunity as a defense to lawsuits charging violations of federal constitutional rights. But it effectively achieves the same goal by eliminating it as an obstacle to lawsuits under the state constitution, which provides much the same rights.

There are, nonetheless, a few limitations to the law. Most obviously, it does not apply to federal law enforcement agencies. In addition, it may not apply to  "state-federal task forces," where state and local cops working with the feds can claim immunity to lawsuits under state law, on the theory that they're really acting as federal agents, rather than state ones. As far as I can tell, the text of SB-217 doesn't explicitly address state-federal task forces, and it is not clear to me whether state and local police participating in them can still claim qualified immunity as a defense to suits under state law or not. I welcome correction on this point, from those more expert in Colorado law. But, in the meantime, I would tentatively suggest that Colorado should amend the law to explicitly cover this scenario.

Another issue SB-217 does not address is cases where the federal government enables state and local law enforcement to get around state laws restricting asset forfeiture by having the federal government "adopt" state seizures and then in effect share the loot with their state and local friends. Such policies enable cops to profit from the seizure of property owned by people who have never even been charged with any crime, much less convicted. It is a serious problem in many states around the country, one that particularly victimizes the poor and racial minorities. SB-217 does not seem to bar qualified immunity as a defense to illegal asset forfeitures "adopted" by the federal government.

Fortunately, a 2017 Colorado law already imposes tight limits on state and local police participation in the federal "equitable sharing" program that facilitates adoption. But Colorado should take this reform even further, and forbid such adoption altogether. Other states that might imitate the Colorado reform should also address this issue—particularly those that don't already have legislation like the 2017 Colorado law.

Finally, it's worth emphasizing that ending qualified immunity is not the only reform needed to curb law enforcement abuses. There are a variety of other steps states should take as well, only some of which are included in other parts of SB-217.

Despite these limitations, SB-217 is an impressive step in the right direction, one that other jurisdictions can learn from. Other states might also be able to learn from the process by which Democratic Governor Jared Polis and legislative leaders quickly secured broad bipartisan support for the bill. As always, the best should not be the enemy of the good. And this law is very good indeed.

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NEXT: House Passes Policing Reform Package, Including Provision That Would End Qualified Immunity

Qualified Immunity Police Police Abuse Federalism

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25 responses to “States Can Reform Qualified Immunity on their Own

  1. If the FBI (ICE, other federal agents, etc) are doing their work inside the state of Colorado, are they not bound by Col’s state law? Or, to put it more accurately; under “Erie,” I thought fed courts follow state law on substantive issues and fed law on procedural issues. Wouldn’t the issue of “what standards apply?” for QI be substantive? What am I missing???

    Cuz if that’s right; if one could get all 50 states to pass their own reforms, that should swallow whole the problem of applying federal law to QI, yes?

    [Slightly off-topic. If you live and work in, say, Oregon, and the FBI monitors your home computer, but does on their end from New York state; would a federal QI defense be analyzed under Oregon state law, or under NY state law…assuming, as discussed above, state law is sometimes applied in these cases.]

    1. Under Erie, federal courts apply state law to state law claims in the federal courts. But of course federal courts do not apply state law to federal law claims just because the events took place in a certain state.

      1. Leaf,
        So you are saying that under the Erie Doctrine, the critical question is *not* whether the issue is substantive vs procedural? It’s been almost 30 years since law school (and my legal practice has nothing to do with this issue), so I’m going on nothing but ancient memory here. Wow, I really had it wrong, re “Erie.”

        1. Erie’s key difference is between substantive and procedural. But for claims under federal law, the court always will apply federal law. Erie only applies by diversity jurisdiction etc., not by federal question jurisdiction. At least that’s my understanding.

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    2. federal law supercedes state law when the two come in conflict.

  2. There’s another important aspect of the Colorado law.

    From what I read elsewhere, it requires indemnification of officers, but only if the officer had a good faith belief that their actions were lawful. Departments / local governments don’t have to indemnify genuine bad actors. This is big.

    1. But you also want departments and cities to indemnify most all claims, otherwise the claims are worthless and no attorney will take them.

      In my state, each Sheriff is required to have a bond, which can payout on certain state law claims. The maximum amount the bond can be, by statute, is $25,000. Which effectively sets a very low cap on damages.

      It’s hard to work up a civil rights case and try it when there is no fee shifting and a $25,000 damages cap.

      1. And then what are the limits on the state tort claims act?
        Massachusetts is $100,000 — total.

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    2. IDK. If I were a defendant, I’d rather have the city indemnify the claim. They are more likely to be able to pay my damages.

      If the city is constantly getting hit with awards, they’ll control the officers.

      1. Yes, but if you were a taxpayer, you might feel different.

  3. Oh, come on. States can’t do anything on their own. Based on the whining of State governments during the coronavirus pandemic, they can only do things the President approves.

    1. Jerry,
      What a weird comment. I think you are having a little difficulty understanding the legal and political issues. Let me help.

      The reason states were whining a few months into the pandemic is because the Trump administration set up a moronic system where states often had to compete against each other for scarce resources. This, obviously drove up the prices in many cases. It was (in market terms) a very inefficient system. It was (in political terms) idiotic and almost self-destructive, and it was not only understandable why state governors were whining and screaming, it was an affirmatively good thing . . . it put a national spotlight on Trump’s stupidity. Partly due to this spotlight, Trump’s polling on how he has dealt with this pandemic are, deservedly, appallingly low.

      Now, on to this issue. It is surprising to read that you think that states cannot do anything on their own . . . that they need Trump’s approval. I think you challenge here is that you don’t have yet a firm understanding of what states can and cannot do independently of other states, and independent of the federal government. Don’t feel bad…this is a really difficult area, and there are often real complications. Once you take your first civics class in Jr. High or in high school, it will become a bit more clear.

      I think it’s great that you posted here. It can be intimidating to publicly post comments on a website when just about everyone else is an adult, and where many of us are lawyers or even law professors. But you were willing to post anyway, and you should be congratulated for that. I suspect that if you copy this thread and show it to your teachers, you’ll even get some extra credit. It’s worth trying, at least.

  4. Interesting to see how this experiment plays out. I’m curious if it will affect how cops act in a positive way, or will just create a lawsuit monstrosity ending in infinite red tape every time a cop breathes.

    1. It may not affect how cops act in a positive way directly.

      However if it motivates departments/local governments to work harder to get rid of bad cops, that would be a good thing.

  5. But why would the states want to reform qualified immunity on their own when it would mean increased liability for the taxpayers?

    Here in Florida, any jury award against the state or any of its subdivisions over $100,000 requires approval from the state legislature, and the legislature almost never approves any such jury awards. They’re very blatant about not being willing to spend taxpayer dollars on judgments.

    1. “But why would the states want to reform qualified immunity on their own when it would mean increased liability for the taxpayers?”

      Because it’s what the voters want. QI protects government agents when they are sued as individuals rather than as agents of government. When you sue Joe Copp, the taxpayers are only on the hook if they have agreed to be on the hook for Mr. Copp’s actions as a police officer.

  6. “Chicago saw its highest number of gun violence victims in a single weekend this year with 104 people shot across the city from Friday evening to Monday morning, 15 of them fatally. Five of those killed were minors.
    The weekend saw more shooting victims but less fatalities than the last weekend of May, when 85 people were shot, 24 of them fatally — Chicago’s most deadly weekend in years.” Sun Times 6/22

    Murders and shootings in the Big Apple skyrocketed last week compared to the same period last year, law enforcement sources said.

    From last Monday to Sunday night, there were 13 murders in the city, compared to five killings during the same week last year, sources said.

    The city reported 40 shootings last week — the most in a week since 2015. In the same time period in 2019, there were 24 shootings, sources said. NY Post 6/8

    Search For Missing Children Turns Chaotic In Milwaukee
    “As police moved away from the building, some in the crowd moved in – soon the van and then the house were on fire. The Associated Press reports shots were fired by individuals in the crowd, resulting in three people, two of which are teenagers, being injured.”
    https://www.wuwm.com/post/search-missing-children-turns-chaotic-milwaukee#stream/0

    Enjoy the future everyone.

  7. Police unions and associated police lobbies are the big hurdle. They, even sooner and more completely than other public sector unions, must be outlawed.

    “Police killing is not the work of vigilant warriors defending society at great personal cost, and sometimes going too far. It is the day-in, day-out petty tyranny of a taxpayer-funded bureaucratic lobby group. The difference is that, unlike other public sector unions, police unions have military-grade equipment they can use to violently crush protests against their abuses, and they are legally immune from most consequences. They’re teachers’ unions, but with tanks and endless get-out-of-jail-free cards.”

    https://www.thepublicdiscourse.com/2020/06/65309/

    1. The problem isn’t that they’re in unions, the problem is the the people negotiating with the unions give up big concessions during negotiations. As long as the union negotiators can successfully move costs from their membership to the employer by getting the employer to agree to this, the union negotiators will keep demanding that they do so.

  8. States Can Reform Qualified Immunity on their Own

    Yes the states can but it is something that the politicians does not want to do because it would alienate the police unions which generally as with most unions vote democrat. So if the state politicians can the federal politicians to reform qualified immunity the local politicians can say to the unions “We did not do that” so you can vote for us again.
    So look at the areas that are having the most problems with the police doing the wrong. If you look you will find it is where there is a strong union present, a strong liberal democrat in majority and these conditions have been going on for decades with being changed. The question is why is most of these cases of police killing young black men more in these democrat controlled areas than in other areas?

  9. ” it may not apply to “state-federal task forces,” where state and local cops working with the feds can claim immunity to lawsuits under state law, on the theory that they’re really acting as federal agents, rather than state ones.”

    Ideally, if anyone tried this in court the state would withdraw their paychecks on the theory that it they aren’t state agents, they shouldn’t be paid like state agents are.

  10. Always amazes me how the limited doctrine of Qualified Immunity receives so much criticism, yet one never hears attorneys attack the doctrine of Absolute Immunity enjoyed by judges who make awful decisions and are immune from civil liability, as well as corrupt prosecutors and lying witnesses testifying under oath – all absolutely immune from civil liability arising from their actions.

  11. I don’t have anywhere near that clout as these ppl but I’m even getting flack from Google games for spreading Infowars links on their stupid games world chat lines… whatever…? Click For Full Details.

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