The Fear That Abolishing Qualified Immunity Would Expose Cops to Ruinous Personal Liability Is a Big Fat Red Herring

A study of civil rights cases found that "police officers are virtually always indemnified" by their employers.

A year after George Floyd's death, Congress is still mulling reforms that could help prevent such horrifying abuses of police power. A major sticking point is restricting or abolishing qualified immunity, the court-invented doctrine that shields police officers from liability when the rights they are accused of violating were not "clearly established" at the time. The debate about qualified immunity has been dominated by Republican warnings that the threat of ruinous personal liability would have a chilling effect on legitimate policing. But that concern, it turns out, is a big fat red herring, because cops almost never pay a dime in damages even when courts rule against them.

In a 2014 study of civil rights cases that covered "forty-four of the largest law enforcement agencies across the country," UCLA law professor Joanna Schwartz found that "police officers are virtually always indemnified." That means they are not responsible for settlement payments or jury-awarded damages arising from allegations of police abuse. From 2006 to 2011, Schwartz reported in the New York University Law Review, "governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement."

During that period, Schwartz writes, "officers financially contributed to settlements and judgments in just .41% of the approximately 9225 civil rights damages actions resolved in plaintiffs' favor, and their contributions amounted to just .02% of the over $730 million spent by cities, counties, and states in these cases." She notes that "officers did not pay a dime of the over $3.9 million awarded in punitive damages," and "governments satisfied settlements and judgments in full even when officers were disciplined or terminated by the department or criminally prosecuted for their conduct."

What about legal fees? "Although my public records requests did not seek information about who bears the cost of defense counsel," Schwartz says, "several government employees and plaintiffs' attorneys noted in their responses that officers are almost always represented by the city's or county's attorneys, or by attorneys hired by union representatives."

Despite this reality, defenders of qualified immunity insist it is necessary to protect cops from the financially devastating consequences of good-faith decisions that are later deemed illegal. In response to that chimerical concern, Sen. Tim Scott (R–S.C.) has proposed a compromise that would allow federal civil rights claims against police departments instead of their employees. The New York Times reports that Scott "has suggested that the legal burden could be shifted from individual officers to police departments, potentially passing on financial liability to municipal governments while satisfying powerful police unions." But that is already what happens in practice.

State legislators are likewise keen to allay a fear that has no real basis. Since Floyd's death, Colorado, Connecticut, and New Mexico have enacted laws that allow victims of police abuse to seek damages in state court without having to overcome the formidable obstacle of qualified immunity, which frequently bars federal claims even in cases involving outrageous conduct. All three laws require indemnification of police officers in all or nearly all cases.

Colorado's law requires indemnification unless "the peace officer's employer determines that the officer did not act on a good faith and reasonable belief that the action was lawful." Connecticut requires municipalities to cover all defendant expenses unless an officer's misconduct was "deliberate, willful or committed with reckless indifference." New Mexico's law goes even further, ruling out individual liability in any circumstances.

Schwartz's research suggests that such protections are redundant. "My findings of widespread indemnification undermine assumptions of financial responsibility relied upon in civil rights doctrine," she writes. "Although the [Supreme] Court's stringent qualified immunity standard rests in part on the concern that individual officers will be overdeterred by the threat of financial liability, actual practice suggests that these officers have nothing reasonably to fear, at least where payouts are concerned."