Qualified Immunity

A New Report Casts Doubt on Both Fears and Hopes About the Consequences of Abolishing Qualified Immunity

A Connecticut law that made it easier to sue abusive cops is not expected to have a noticeable effect on municipal insurance costs.

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George Floyd's horrific death at the hands of Minneapolis police last year focused national attention on qualified immunity, the court-invented doctrine that can shield cops from federal civil rights lawsuits even for outrageous misconduct. Although the officers involved in Floyd's death face criminal charges, qualified immunity is so expansive that it could prevent his family from suing them.

As that reality sunk in, calls to restrict or abolish the doctrine intensified. While Republican opposition blocked reform at the federal level, Colorado and Connecticut passed legislation that made it easier to sue abusive police officers under state law. Since those reforms provide a preview of what might happen if Congress (or the Supreme Court) did something similar, a recent analysis mandated by Connecticut's law has important implications for the debate about qualified immunity.

The report concludes that Connecticut's reforms, which authorized lawsuits against officers who violate rights protected by the state constitution, are unlikely to have a noticeable impact on municipal insurance costs. While that might seem like an obscure detail, it goes to the heart of an argument deployed by defenders of qualified immunity. It also suggests that critics of the doctrine should temper their expectations about what can be accomplished by eliminating it.

Opponents of qualified immunity are citing the Connecticut report as evidence that fears about the consequences of eliminating it are overblown. "This disproves one of the main arguments against ending qualified immunity, which is that officers would then be personally responsible for damages, causing municipal insurance [premiums] to skyrocket," the Campaign to End Qualified Immunity says in a press release. But the report also casts doubt on the idea that reducing barriers to lawsuits by victims of police abuse will give officers and local governments a financial incentive to treat people better.

Section 41 of Connecticut's police accountability law says "no police officer, acting alone or in conspiracy with another, shall deprive any person or class of persons of the equal protection of the laws of this state, or of the equal privileges and immunities under the laws of this state, including, without limitation, the protections, privileges and immunities guaranteed under article first of the Constitution of the state." It adds that "any person" whose rights are violated by police "may bring a civil action for equitable relief or damages in the Superior Court."

Under Section 41, "governmental immunity shall only be a defense to a claim for damages when, at the time of the conduct complained of, the police officer had an objectively good faith belief that such officer's conduct did not violate the law." The law prohibits officers from appealing cases before they are resolved by the trial court, and it requires defendants to pay plaintiffs' legal costs when police misconduct was "deliberate, willful or committed with reckless indifference." Except in those narrow circumstances, Section 41 requires municipalities to cover all defendant expenses related to such lawsuits, meaning that officers generally do not have to worry about personal financial liability.

As Institute for Justice legislative analyst Nick Sibilla noted at the time, Connecticut's law was nearly defeated by police objections, and it "contains multiple loopholes that undermine its effectiveness."

One loophole is the law's immunity provision. Under federal law, qualified immunity bars civil rights claims when the alleged misconduct did not violate "clearly established" law, a restriction that in practice means even victims of shocking abuse cannot get their day in court unless they can locate precedents with nearly identical facts. Connecticut's law bars state lawsuits when officers had "an objectively good faith belief" that their actions were legal. "Without clearly defining either 'objectively' or 'good faith belief,'" Sibilla writes, "this carve-out threatens to block far too many victims from obtaining justice they deserve."

Sibilla also notes that Section 41 requires even successful plaintiffs to cover their own legal costs unless the abuse they allege was "deliberate, willful or committed with reckless indifference." That provision, he notes, "is much more limited than Colorado's police immunity reform, which guarantees attorney's fees to any 'prevailing plaintiff.'"

Finally, Section 41 "only applies to police officers, and not the thousands of other government officials throughout the state." By contrast, 42 USC 1983, a federal statute that allows people to sue police officers who violate their constitutional rights (as long as they can overcome qualified immunity), covers any government official acting under color of law.

"The 'good faith' exception is particularly problematic," George Mason University law professor Ilya Somin notes, "because it could incentivize 'hear no evil, see no evil' behavior by police departments. If police are not told that certain types of dubious practices are illegal—or, perhaps even told they are appropriate—they could well plausibly have a 'good faith belief' that illegal tactics are perfectly fine, and thus get immunity."

Still, Connecticut unquestionably made it easier to sue abusive police officers, raising the prospect of more lawsuits and more damage awards. Those litigation costs, you might think, should encourage police to behave better, encourage their departments to train them better and weed out bad cops, and encourage local government officials to make sure that happens.

Probably not, for reasons outlined in a January 5 report from the University of Connecticut's Insurance Law Center to the Police Accountability Task Force created by the new state law.

Among other things, the task force was charged with investigating Section 41's impact on municipal insurance costs and the merits of requiring officers to maintain personal liability insurance as a condition of employment. Here is how the report, written by University of Connecticut law professor Peter Kochenburger and economist Peter Siegelman, assesses those issues:

Municipal liability insurance already includes individual police officers as insureds under the policy, and defends them along with the municipality so long as the police officer is acting within the scope of their duties. We have not seen evidence that individual officers have actually incurred personal liability not otherwise covered by the municipality's insurance policy. While it is possible that police officers may be able to obtain their own insurance covering their actions, the market is very limited and the policies available would almost certainly come with similar exclusions and conditions to those in the municipal liability policy, providing little additional coverage as a result….To date no evidence has been provided demonstrating that Section 41 would significantly alter existing liability laws and defenses or substantially increase the cost of municipal liability insurance.

In other words, Section 41 won't hit abusive cops in their wallets even when they are sued successfully, because they are covered by municipal insurance policies except in extraordinary circumstances. Section 41 itself requires indemnification. Nor is the law expected to have much of an impact on the cost of maintaining insurance.

Kochenburger and Siegelman caution that they were unable to obtain important information that would have been relevant to their analysis. But the lack of that information actually reinforces their general conclusions.

In particular, Kochenburger and Siegelman could not "obtain information about how—if at all—insurers plan to change underwriting or pricing practices in light of the new statute." That detail is telling, because it suggests that insurers, whose bread and butter is setting premiums that properly reflect the risk of payouts, are not concerned about Section 41's effect on their business.

Kochenburger and Siegelman also note that the Connecticut Interlocal Risk Management Agency (CIRMA), a nonprofit association that provides coverage to hundreds of government agencies, said "it had not conducted an analysis or forecast of Section 41 to evaluate whether it would generate significant new liability or increase the number and cost of claims against municipalities and police officers." Nor did it plan to do so. "That CIRMA has not evaluated Section 41 to determine its potential effects on municipal liability," the report says, "suggests to us that CIRMA believes Section 41 will not appreciably [affect] the liability of municipalities for law enforcement activities."

These conclusions are similar to what UCLA law professor Joanna Schwartz, a leading critic of qualified immunity, found when she considered the likely impact of abolishing it. In a 2020 Columbia Law Review article, Schwartz cited survey data indicating that police officers do not worry much about being sued. That is unlikely to change even without qualified immunity, she said, for three reasons:

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.

In short, the financial costs of lawsuits are unlikely to deter police abuse. But that hardly means there would be no benefit from abolishing qualified immunity.

First and foremost, more victims of police abuse could obtain compensation for their injuries. And even if the cost of those payouts does not figure prominently in the decisions of police departments and local governments, the negative publicity generated by such cases would provide an incentive for better training and management. Schwartz also argues that more cases and more trials could "influence officer behavior" by disclosing information about policies and practices that is "sometimes unknown to the government entities whose employees are implicated in the suit."

Scrapping qualified immunity also would help clarify important constitutional questions that currently go unresolved as courts block lawsuits without deciding whether the actions they allege were illegal. The Supreme Court has allowed that shortcut since 2009, when it said judges need not assess a plaintiff's constitutional claims if they conclude that the rights police allegedly violated were not clearly established at the time.

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 5th Circuit Judge Don 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."

Worse, Willett adds, it has become increasingly difficult to find the precedents required to proceed with a suit, because courts are producing fewer and fewer of them. That means not only that cops who "behave badly" cannot be sued the first time around but also that other cops who do exactly the same thing are off the hook as well, now and forever. This situation is plainly intolerable in a legal system that purports to limit what police can do in the name of enforcing the law.

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  1. I can’t wait till we can hold Gov workers personally and monitarilly responsible. Suing ass hat teachers for their extremely racist wok teaching, or false arrest if they send cops after you. Or taking a scumbag kidnapping pedofile CPS agent (probably a friend of buttplug) for all their worth after they commit perjury. It will be halarious

    1. False arrest my ass, that should be attempted murder.

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  2. Two aspects to QI: holding cops and other government workers individually liable, and compensating harmed individuals.
    Second part should be the primary focus, compensating individuals harmed. They should not need to show that the officer did anything wrong, violated department policy, violated training, or was on-notice that the action was unconstitutional. More simply, injury should be compensated.
    -officer makes an honest mistaken identity, detains, arrests, and holds a person at the station for a day in a completely honest and understandable error, that person still needs compensation. A citizen ombudsman panel would immediately be tasked with mitigating harms and compensating losses, both immediate (lost wage for a day) and far reaching (lost opportunities, parking ticket or car towed while held, etc.)
    -cops execute search warrant. Regardless of what they find, a clean up crew is part of the warrant, to document any damages, restore order to the premises, and arrange repair or replacement for loss or damage.

    1. Why should I as a tax paying citizen be on the hook for covering up wrongful government actor?

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      2. The wrongful government actor is working for you, under the supervision of people you and the other (mostly) tax-paying citizens elected. Under normal laws, that makes you responsible.

        Maybe you just want to complain about how the other citizens elected fascists and incompetents rather than the guys you wanted – but if you’re responsible to pay the taxes they chose to increase, you’re also responsible to pay taxes for the expenses they either chose to incur or incurred through negligence and outright idiocy.

    2. In Mega City 1 they send robots around to repair any damage during any searches, no warrant needed (of course)

  3. As libertarians, if our goal is to reduce government abuses, we should be pushing for smaller government as opposed to punishing it. I’ve had a few run-ins with police and they are well trained and competent. If we want to continue to attract qualified applicants, we should continue to offer them protection. It makes no sense to hire a security person that you don’t trust.

    The best thing we could do to reduce police abuse is to end the war on drugs. Then end the war on guns. At the same time, gradually reduce budgets and staffing for law enforcement. That’s fine – we’re all grown up and can take care of ourselves now.

    1. Well maybe if you didn’t think addiction was a myth, you’d have less run-ins with the cops!

      1. Golly, nobody knows that some stuff ingested may have an effect on them. Before educating us about drugs define “mental illness”. What business do police have in interfering in our lives and trying to install “normal” everywhere?
        Step 1 is to finally admit you are terrified about being ruled at gunpoint and you could likely live safer and longer on death row than walking around or driving somewhere. Police officer is not a dangerous job, that is a myth that is easily proven but you will reject it on its face just as you do not question the illegality of drugs. You do not run your own life but think you do. Delusional and placing yourself above others is unhealthy. I have said many times but the Dalai Lama worded it best “Your happiness in life is dependent entirely on the community”.
        We wish to feel good and if a drug is needed then we have hired a gunman to stop us from that endeavor and propagandize our suppliers calling them “big pharma” or “cartels”. Daddy daddy tell us again about the drug pusher on the street corner that nobody actually ever really saw… or why is alcohol always present in a body that has died from heroin and why does heroin revert back into morphine when ingested…or why do meth users always seem to turn into homeless schizophrenics or is meth just a distraction that aids onlookers from seeing reality…why do mobile homes never go anywhere…
        Drugs win the war every time and you lose. Pray your pilot stays awake on that long flight while you drink your drink or have your coffee while sitting in a comfy chair 5 miles up in the air going 500 miles an hour because goddam it you are important and time is money or is it? BTW the mentally ill are victims far more often than perpetrators and police have yet to stop crime.

        1. What the fuck are you spun up on? Learn to recognize humor.

    2. Cops aren’t security. They have no obligation to protect you.

      Cops enforce the law. Smaller government should mean fewer laws to enforce, and therefore fewer cops. And when they do overstep their authority and violate your rights, holding them accountable is necessary to enforce those boundaries.

      1. The problem with that is radical DA’s and judges along with media with an agenda make every death of minorities by officers out to be racially motivated and say there was excessive force by not showing all evidence to the public. Until they stop lying nothing will get better.

        1. Courts are the home of tyranny and cops call taking the stand “testilying”.

    3. Smaller government doesn’t eliminate the problem. We should have smaller government AND punish bad behavior.

      1. Problem is defining “bad behavior”. And down the slippery slope you go…

  4. No Trump? Jacob, the commentariat is very concerned about your recent journalistic swings fore and away from the Orange Man. Is everything ok?

    1. Jacob beat that particular horse until it was divided into it’s constituent atoms, and Reason can’t afford an electron microscope so he can find the individual remaining atoms to beat further.

  5. Hmmm, nope, that’s not gonna happen.

    Good luck in a few years, if your website is still around.

  6. Fixing the cops is simple, end drug prohibition.

  7. Seems like the problem was not that police reform will never work, but that it is meaningless if it is full of lots of loopholes.

  8. “It also suggests that critics of the doctrine should temper their expectations about what can be accomplished by eliminating it.”

    Should I say I told you so now, or should I wait until the end of the program?

  9. Oh, GoDaddy took ar15.com offline today for “violating it’s terms of service” based on “a complaint”.

    But keep on fiddling while freedom of speech Burns.

    1. On the same day that the woefully inept and mismanaged NRA declares Chapter 11 bankruptcy.

      1. While Wayne LaPierre (and his gigantic tailored suits wardrobe) is still the President of that organization. Amazing. Deciding to sell insurance in the hideously overregulated New York State market, without seemingly getting the advice of any attorneys before doing so, is a bad enough management failure that he should have been fired for that alone.

        Hilariously, they’re coming to Texas to reincorporate, not just for filing their bankruptcy action.

  10. Is anyone else having a problem taking jacob seriously after the corpse fuckings he did on the election results?

    1. Yes. Corpse fucking seems like more of a Tony thing.

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  12. Remember that late-released video evidence where George Floyd was resisting arrest and fighting with the police about getting into the police car??? So; Being instructed to get into a police car – fighting it and getting pinned to the ground and dying of medical issues is BAD but trying to protest inside the Capitol instead of outside of it and getting accidentally pushed through a window and shot on perimeter violation is A-OKAY…

    I don’t pretend the capitol shooting wasn’t justified in defense; as I’m not going to pretend George Floyd wasn’t justified in mostly a health-accident added with resistance of arrest. If you’re going to start a fight with a police officer I guess you better be healthy enough to take the reaction.

    1. Then again; If this happened in a Democratic controlled area – there’s probably other corrupt factors surrounding it. Don’t like a crappy police? Don’t like a crappy job market? Don’t like corrupt commie-money getting dictated to this or that? STOP VOTING FOR the same corruption party over and over and over again…

  13. I interpret the statements about municipal insurance rates differently from Jacob.

    For example:

    “In particular, Kochenburger and Siegelman could not ‘obtain information about how—if at all—insurers plan to change underwriting or pricing practices in light of the new statute.’ That detail is telling, because it suggests that insurers, whose bread and butter is setting premiums that properly reflect the risk of payouts, are not concerned about Section 41’s effect on their business.”

    No, Jacob – maybe it just suggests that insurers aren’t eager to share their underwriting criteria with outside parties? Or that they’re not eager to put themselves in the middle of a political fight about the hypothetical pending legislation, especially when saying “yes, we’d probably raise rates” could lead to hard-core BLM supporters – a group hardly noted for their grasp of statistics, economics, and subtle distinctions – publicly lambasting the insurers?

    Presumably that second consideration has even more relevance for the “the Connecticut Interlocal Risk Management Agency (CIRMA), a nonprofit association that provides coverage to hundreds of government agencies”, which sounds like it’s a quasi-governmental body in practice. Think in terms of public choice theory – what’s the incentive for anyone at that entity to “conduct an analysis or forecast of Section 41 to evaluate whether it would generate significant new liability or increase the number and cost of claims against municipalities and police officers” and then be in the public eye defending that forecast?

    Or – what I think is the most likely reality – that insurers will wait to see actual claims data and then adjust rates accordingly upon annual renewals. Insurers don’t have a crystal ball as to what will actually happen as Connecticut judges and juries interpret a change in legal standards. Insurance underwriting models need to have actual quantitative data available, and such historical data simply don’t exist for a new law with somewhat vaguely-worded standards.

    1. Great post.

  14. Irony that those pushing for reforms have fenced in the capitol cleared the mall and installed 20000 soldiers with live ammo for one pointless ceremony that nobody can attend.

    Sorry but if you think the libs have any intention of removing the boot from your neck now you are laughably credulous.

    1. “…laughably credulous.”

      Sort of like the TDS-addled shits screaming ‘THEY’RE GONNA KILL PEOPLE!!!!’?

      “Feds back away from claim of assassination plot at Capitol
      Prosecutors who initially said there was “strong evidence” the pro-Trump mob that stormed the U.S. Capitol last week aimed to “capture and assassinate elected officials” have backed away from that allegation”
      […]
      “PHOENIX — Federal prosecutors who initially said there was “strong evidence” the pro-Trump mob that stormed the U.S. Capitol last week aimed to “capture and assassinate elected officials” backed away from the allegation after the head of the investigation cautioned Friday that the probe is still in its early stages and there was no “direct evidence” of such intentions…”
      https://abcnews.go.com/Politics/wireStory/feds-capitol-mob-aimed-assassinate-elected-officials-75277876?cid=clicksource_4380645_6_heads_hero_live_hero_hed

      IOWs, they lied. And I’m sure they are still lying; it’s what they do.

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  16. Will the law granting immunity if the police officers reasonably thought their actions were “legal” be construed to mean “did not violate the specific right in question” or “did not violate any law”? There’s a huge difference. For example the scope of the right to be free from certain physical abuses is confusing to me, but the law governing assault is comparatively simple. The law about how you have to plead “the government stole my stuff” is confusing, but the law on larceny is comparatively simple. We had a case in the First Circuit where the police officer was found liable for conversion, but not liable for a constitutional taking because of what I consider silly technicalities about when you can invoke one amendment or the other.

  17. Murders skyrocketed in the usual places of the country in 2020, a time when most people should be spending more time at home. Reason put up a soft resistance to the “Ferguson effect” idea and now abandoned the entire discourse. Hmm.

    Threat of lawsuits may keep some cops honest, but in practice, most cops will just ignore any situation that invites confrontation. Even if the state covers your legal fees, the emotional toll of a trial (knowing that his career and a normal life is now over) will be devastating enough. If 400 more black people died due to cops not doing their jobs, CNN won’t care anyways.

    The slip and fall lawyers say they need to sue companies to keep them honest. Does that happen? No, the companies will just limit choices an stay within a box to avoid lawsuits, resulting in a less free economy. Indeed, libertarians defend section 230 (like the Spartans) on the notion that removing liability protection will kill free speech, even though publishers have existed for centuries without such protection and allowing a company to censor speech…. isn’t really conducive to free speech.

    “Unintended consequences” is Reason’s bread and butter, and they won’t consider such outcomes for total removal of qualified immunity. Murders are already going up, resignations are piling up, and future recruitments will likely dry up. Why don’t we just go all the way and allow citizens to sue whatever business that infects customers and workers with covid? Let’s break down society in the name of social justice.

  18. Screw all this noise. Just start throwing police, prosecutors, politicians, and judges in jail for 18 USC 241 conspiracy charges whenever they obfuscate obvious justice with this bs. That would end it really quickly… Assuming we can find any politicians, judges, and prosecutors willing to actually enforce such a doctrine.

    And if course that’s rub, right? None of this matters so long as they are all still in bed together and willing to turn a blind eye to mutually ridiculous policies and precedents that clearly violate the law and constitution.

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