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.]