The Case Against Qualified Immunity, Part II

Although the Supreme Court says qualified immunity is necessary to protect government officials from financial liability and the costs and burdens of litigation, all available evidence suggests the doctrine fails to achieve these intended policy goals.


Yesterday, I explained that qualified immunity doctrine looks nothing like the common law in existence in 1871, when Section 1983 became law. But the Court appears to recognize this fact—it acknowledged decades ago that it had "completely reformulated qualified immunity along principles not at all embodied in the common law." Today, the Court defends qualified immunity doctrine not as a relic of the common law but instead as an instrument to achieve various policy goals—protection from personal financial liability, protection from the burdens of discovery and trial in insubstantial cases, and protection against the threat of overdeterrence of officers on the job. Yet, as I argue in a forthcoming article, excerpted here, all available evidence indicates that qualified immunity doctrine fails to serve these policy goals.

Although the Court has repeatedly justified qualified immunity as a means of protecting government officials from personal liability, I have found that state and local law enforcement officers are virtually never required to pay anything toward settlements and judgments entered against them. In a prior study, I examined indemnification practices in forty-four of the nation's largest law enforcement agencies and found that, over a six-year period, individual officers contributed to settlements in just 0.41% of the 9225 cases resolved with payments to plaintiffs, and paid just 0.02% of the more than $735 million awarded to plaintiffs in these cases. On the rare occasion that officers did contribute to settlements or judgments, their contributions were modest: no officer paid more than $25,000, and the median contribution by an officer was $2250. I studied indemnification practices in thirty-seven smaller jurisdictions over the same six-year period and could find no officer who was required to contribute to a settlement or judgment against him. To the extent that justices believe qualified immunity to be necessary to shield government officials from the threat of financial liability, evidence that law enforcement officers virtually never contribute anything to settlements and judgments entered against them demonstrates that qualified immunity does not—and need not—serve this policy goal.

Qualified immunity also cannot be justified as a means to shield government officials from burdens of discovery and trial in insubstantial cases. If, as the Court has written, "the 'driving force' behind creation of the qualified immunity doctrine was a desire to ensure that 'insubstantial claims' against government officials [will] be resolved prior to discovery," the doctrine is utterly miserable at achieving its goal. In another study, I reviewed 1183 lawsuits filed against law enforcement officers and agencies over a two-year period in five federal districts and found that just seven of these cases (0.6%) were dismissed on qualified immunity before discovery. Qualified immunity was little better at shielding government officials from trial—just thirty-eight (3.2%) of those cases were dismissed before trial on qualified immunity grounds.

My findings do not foreclose the possibility that qualified immunity shields government officials from the burdens of litigation by discouraging insubstantial cases from ever being filed. Accordingly, for a future project, I surveyed attorneys from around the country who entered appearances in the 1183 cases in my dataset and interviewed a subset of them. Although this research is still ongoing, my findings thus far offer three reasons to believe qualified immunity does not do a good job of filtering out insubstantial cases before filing. First, although the majority of attorneys I interviewed reported considering qualified immunity when deciding whether to accept a case, qualified immunity was one of many considerations they took into account—including the egregiousness of the facts, the strength of the evidence supporting the claim, whether a jury would find the plaintiff sympathetic, and the amount of recoverable damages. And many reported that qualified immunity does not play a controlling role in their case selection decisions. So, to the extent that qualified immunity is playing a role in case selection, it is playing a role mediated by a number of different concerns.

Second, a majority of the attorneys I interviewed reported that they rarely or never decline to bring a case because of qualified immunity. Some explained that the challenges posed by qualified immunity are replicated by other case-screening considerations. For example, several attorneys reported that concerns about judges' and juries' predispositions against police misconduct suits cause them to select cases with facts so egregious that they are not vulnerable to dismissal on qualified immunity. Others explained that they limit the effects of qualified immunity by including state law claims or municipal liability claims—that cannot be dismissed on qualified immunity grounds—in their cases. And several attorneys made clear that they will accept a case they view as important, even if the case is vulnerable to attack on qualified immunity grounds.

Third, when qualified immunity impacts case filing decisions, it is far from clear that the doctrine is filtering out only insubstantial cases. The attorneys who reported declining cases because of qualified immunity reported that the doctrine discourages the filing of cases concerning constitutional violations that are novel or ill-defined, and cases in which the costs of litigating qualified immunity would be greater than the damages at stake. One attorney reported that the challenges associated with litigating qualified immunity discouraged him from bringing Section 1983 cases altogether. None of these responses suggest that qualified immunity is doing a good job of screening out "insubstantial" cases.

The only remaining justification that the Supreme Court has offered for qualified immunity is that it protects against overdeterrence. The Court fears that damages actions may "deter[] . . . able citizens from acceptance of public office" and "dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties," and expects that qualified immunity will protect against these ills.

Available evidence undermines this justification for qualified immunity as well. Multiple studies have found that law enforcement officers infrequently think about the threat of being sued when performing their jobs. And, to the extent that people are deterred from becoming police officers and officers are deterred from vigorously enforcing the law, available evidence suggests the threat of civil liability is not the cause. Instead, departments' difficulty in recruiting law enforcement personnel has been attributed 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. Regardless of how "unflinching" one believes an officer should be in the "discharge of their duties," the threat of being sued appears to play little role in job applicants' decisions and officers' decisions on the street.

This discussion has focused on the role qualified immunity plays in the litigation of claims against law enforcement. It could be that other types of government actors have different rules on indemnification or that litigation against these actors are resolved in different ways. But law enforcement officers are common defendants in Section 1983 cases, and cases involving law enforcement have played a significant role in the development of the Supreme Court's qualified immunity jurisprudence. I disagree with Aaron Nielson's & Chris Walker's view that further research is necessary to prove that qualified immunity is ineffective. Given available evidence of qualified immunity's failure to achieve its intended policy goals, the burden should now rest on defenders of qualified immunity to show how the doctrine meets those goals in other contexts.

[UPDATE: This post was again misattributed to me at first, but I think it's a technical glitch; investigating, but in the meantime it should now show up properly as Joanna's.]

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  1. Am I right in thinking that this post, like Part I, is Joanna Schwartz’ work mis-attributed to Eugene Volokh?

  2. I would also point out that even if all of these policy goals were licit it was grossly inappropriate for the courts to make them the foundation of QI without any legislative pronouncements on the issue. To the best of my knowledge QI is wholly a creation of the courts, and these types of policy grounds for an action are beyond the proper role of the court. Had Congress created QI then yes courts would have been reasonable in looking to these types of policy grounds to determine the scope of QI, but not to create it out of whole cloth.

    1. Thank you — that what I was wondering, and I should have reloaded comments before commenting.

    2. A really good point. The court created QI all by itself. It wasn’t debated in the halls of legislatures across the country.

  3. The problem can be solved by having rules which any person should be expected to know. If the rules are clear, then the cops can’t claim unfair surprise and qualified immunity would be bereft of any shadow of justification.

    The rules are equal protection (don’t discriminate) and due process (cops can’t punish, they can only use force for a legal search or taking someone to court. If the person waives the benefit of due process by resisting/fleeing/shooting at people, then the cops don’t have to wait for judicial procedure.)

    It’s no vaguer than the rules the plebes are supposed to familiarize themselves with and obey.

  4. Here is your solution to qualified immunity plain and simple:

    Collective government policies that can be tapped to defend qualified immunity type civil rights claims are banned.

    Governmental officials receive a stipend whereby if they so choose they can get their own insurance coverage at whatever level they desire.

    When a cop makes a bad search or the police chief fails to properly train his department and they get sued the individual plans cover the event. No more hiding behind massive municipal umbrella policy for bad actors. If you want to be a corrupt cop better get good insurance or better yet just don’t be a corrupt cop.

    Boom. Problem solved.

    1. That stipend already exists, and is called “pay”. Skip that extra bureaucracy and just make cops buy their own insurance, period. Let them factor their actions and insurance premiums into their pay. No doubt police unions will negotiate pay raises, but the point is to make the premiums come from their own wallet, so the thugs will have a direct cost for malfeasance.

    2. You forget the costs for defending claims/actions that can be filed on fil in the blank complaints. 30 years ago I clerked at a firm who represented these matters. I can remember an entire 6 foot filing cabinet filled with pleadings for a person who was 6 weeks in a county jail but at the time he filed, was in a psychiatric facility in another state. A claim that pay phones and a non regulation striped basketball court represented cruel and unusual punishment. An individual officer would be bankrupt in weeks from the defense cost let alone settlement costs.

      Has there been any consideration of the “anecdotal evidence” in Chicago that police are not going to some areas due to fear of false claims?

      There are some truly bizarre Section 1983 claim. In addition, there are cities and governments cutting checks to cut their losses before there has been an adjudication of the facts.

  5. How about malpractice insurance for police officers?

  6. Not being a lawyer, all this fretting over what it encourages and discourages seems really out of place for any judges. Isn’t that the kind of political decision judges like to shy away from?

    1. Like a Kardashian shies away from the cameras?

  7. In order for someone to find vindication when their rights are violated someone else must endure the expense of suing all the way to the appellate level and lose on QI grounds. In addition, the appellate court must take the time to rule that the actions violated the person’s civil rights, and courts routinely punt on making any ruling at all. That is quite a financial burden for a litigant who will lose anyhow due to QI.

    In all it makes for a very high bar for justice for violations of what are fundamental constitutional rights. I would understand if QI only applied to novel legal theories or after recent and drastic changes in law, but that is not how it is being applied.

    1. You are missing the reality that governments are cutting their losses and writing checks before there is an adjudication. I can recall cases where Cities have already cut the check before the grand jury had ruled no cause of action.

      1. When do grand juries ever decide whether a cause of action has been sufficiently pleaded in a civil case?

  8. I am unclear why we think that qualified immunity would shield officials from frivolous (“insubstantial”) lawsuits better than a “loser pays” rule. All qualified immunity seems to do is shield officials from accountability.

  9. Obviously IJ’s Short Circuit report each week does not select a representative example of QI cases; they pick the most egregious ones. So one wouldn’t want to draw conclusions based on them. Even so, it’s hard to look at any of those cases and see a policy argument in favor of protecting that conduct.

  10. If Congress modified ?1983 to eliminate qualified immunity, could SCOTUS declare that unconstitutional? Honestly, I mean, not by discovering a hidden penumbra from pre-Magna Carta common law.

    It appears that the original arguments in favor of immunity were policy-based. Would SCOTUS declare that they are not only the guardians of the Law but also of policy?

    1. Sovereign Immunity is a longstanding, commonly accepted principle originating from English common law even though it isn’t specifically mentioned in the Constitution. Qualified Immunity is effectively a more limited form of Sovereign Immunity. Under SI, the government effectively cannot be sued for anything. QI is basically a more limited form of that. Immunity originally was simply to protect kings from lawsuits, but it did (and does) serve certain important purposes, namely keeping fear lawsuits from preventing an official from doing their job. For example if a cop (justifiedly) shoots someone threatening people with a knife, they can’t be sued for killing the suspect. But obviously it’s used to protect far more than someone “just doing their job,” and I don’t know if there’s an easy way to do its real purpose without allowing for the egregious abuses too.

      1. My question boils down to: can common law and tradition trump explicit Congressional legislation?

        1. A good question with an easy answer. Common law is the rule where the Legislature has not spoken. If the Legislature speaks up, at whatever level, then common law is no longer the law.

  11. The final justification, overdeterrence, seems a strange justification. If someone is concerned that they may be sued for their actions then maybe they are not appropriate candidates for the position in the first place.

  12. It reads as if the author only interviewed plaintiff’s lawyers. If so, why? The defense attorneys in these cases could give you a pretty good estimate on the percentage of these cases that have actual merit. Wouldn’t you want to know that before advocating for a lower standard for these cases?

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