Qualified Immunity

Imagining a World Without Qualified Immunity, Part V

Absent qualified immunity, government indemnification and budgeting would continue to dampen the effect of lawsuits on government decisionmaking—but eliminating the defense could exert other pressures on government to improve.


This week, in excerpts from a forthcoming article, I have made several predictions about how civil rights litigation would function without qualified immunity. Today I offer my final predictions about the impact eliminating qualified immunity would have on government misconduct and accountability.

The Supreme Court and some commentators believe that the threat of being sued and the imposition of damages liability overdeter officers, discourage people from entering government service, and threaten government budgets. This is presumably why the Court has repeatedly emphasized the importance of qualified immunity to government officials and "society as a whole." But those holding this view both overstate the deterrent effects of lawsuits and overestimate the ability of qualified immunity to protect against the dangers they describe.

The Supreme Court has written that the threat of liability puts government officers in an impossible position—an officer must "choose between being charged with dereliction of duty if he does not arrest when he has probable cause" or "be[] mulcted in damages if he does." But studies have shown that "the possibility of being sued does not play a role in the day to day thinking of the average police officer." Contrary to the Supreme Court's fear that police fret overmuch about the possibility of being sued while making split-second decisions, available evidence suggests that the threat of legal liability rarely enters most officers' minds when they are doing their job.

One might view these studies as evidence that qualified immunity is working—protecting officers from the threat of legal liability so that they can work without distraction—and that eliminating qualified immunity would force officials into making these types of difficult decisions more often. But there are other likely explanations for officers' indifference to the threat of legal liability unrelated to qualified immunity that would presumably continue to exist in a world without the defense. As I have found, law enforcement officials infrequently pay for their defense counsel and virtually never contribute to settlements and judgments entered against them. And although government officials unquestionably dislike being sued, police officials report a number of other concerns on officers' minds—including high-profile shootings, negative publicity about the police, strained relationships with communities of color, tight budgets, low unemployment and reduced retirement benefits—that make it difficult to hire and retain officers. These other factors likely explain officers' current inattention to the threat of being sued while on the job and would presumably continue to exist in a world without qualified immunity.

Commentators have also expressed concern that eliminating qualified immunity would cause litigation costs to increase, and so would threaten municipal budgets. Setting aside what effect eliminating qualified immunity would have on payouts, this argument relies on an inaccurate view of lawsuit budgeting. While many municipalities are under financial strain, lawsuit costs are not usually the culprit. Although there are isolated stories of small towns and villages that have gone bankrupt or had to disband their police departments after large awards, available evidence indicates that liability costs are no more than 1% of most government budgets, and that lawsuit payouts usually have little or no direct financial impact on the budget of the agency that employs the defendant officials.

Against this backdrop, what impact could eliminating qualified immunity have on officer and official decisionmaking? Although there is no reason to believe eliminating qualified immunity would change government indemnification or budgeting practices, or non-litigation pressures on government officials, eliminating qualified immunity might lead to changes in constitutional litigation that could influence government behavior in several important ways.

As I explained in posts earlier this week, because qualified immunity increases the cost, complexity, and risk associated with civil rights litigation, eliminating qualified immunity might encourage plaintiffs' attorneys to file more cases, and might encourage plaintiffs to take their cases to trial more often. Plaintiffs' success rate is unlikely to increase—jurors' sympathies for government defendants mean that plaintiffs would continue to lose regularly at trial. But there would be more cases filed, more trials, and more plaintiff victories in absolute terms. And those trials would focus on what should be the central issue in these cases—whether officers exceeded their constitutional authority.

More lawsuits and trials could also influence officer behavior in a more indirect way—through the disclosure of information about government behavior. Complaints, discovery, motion practice, and trial can bring to the surface valuable information about government behavior previously unknown to the public—and sometimes unknown to the government entities whose employees are implicated in the suit. This additional information can inform government officials about areas of concern, and can heighten political pressures on them to make personnel, policy, or training adjustments.

Eliminating qualified immunity could also make the scope of constitutional law clearer.

Qualified immunity creates legal uncertainty because courts can grant qualified immunity without deciding whether the constitutional right in question was violated. Absent qualified immunity, courts would more regularly announce the law. As Judge Browning has observed, line officers are unlikely to study these circuit and Supreme Court decisions, or compare the situation they are confronting on the job to the facts or holding of a prior case. But, in the past, when the Supreme Court or circuit courts have announced new legal requirements—or clarified what the law does not require—police departments have incorporated the substance of those rulings into their policies and trainings.

In addition, eliminating qualified immunity would do away with the slow but steady stream of district, circuit, and Supreme Court decisions finding that plaintiffs' constitutional rights have been violated, but insulating defendants from liability because a prior decision did not clearly establish the law. These decisions deny what is often the best available relief to plaintiffs who have been grievously wronged by government actors, and send a troubling message to government officials that they can violate the law with impunity. By eliminating qualified immunity, courts would no longer send this message in this way.

Eliminating qualified immunity is unlikely to change widespread indemnification and budgeting practices that shield line officers and policymakers from the financial consequences of lawsuits. But eliminating qualified immunity may increase pressure on officials to change their policies and trainings, providing clearer guidance about the legal standards these policies and trainings should contain, and dampen the message that government officials can violate constitutional rights without consequence. It is difficult to measure the impact these adjustments would have, but there is reason to believe they could, at least to some degree, reduce the frequency of constitutional violations and improve government behavior.


The Supreme Court has repeatedly emphasized the  importance of qualified immunity to "society as a whole," suggesting justices may fear how constitutional litigation would function absent qualified immunity. This week, I have offered several predictions that should quell these concerns. Absent qualified immunity, plaintiffs' and defendants' litigation success rates would remain relatively constant; the average cost, time, and complexity associated with litigating constitutional claims would decrease; attorneys would continue to have strong incentives to decline insubstantial cases; and indemnification and budgeting practices would continue to shield most government agencies and officials from the financial consequences of damages awards.

If we take the Supreme Court at its word—that its qualified immunity jurisprudence is motivated by an interest in shielding government officials from the burdens of suit in insubstantial cases, and avoiding overdeterrence of officers and officials—the Court need not fear doing away with qualified immunity, and need not craft another protection to put in its place. Given the multiple doctrinal, institutional, and bureaucratic shields that protect government defendants from suit, discovery, trial, damages awards, and overdeterrence, eliminating qualified immunity will not fundamentally disrupt the functioning of government or society as a whole. Each of these shields will continue to exist absent qualified immunity and will continue doing qualified immunity's intended work.

For these same reasons, doing away with qualified immunity will not be the silver bullet that critics of qualified immunity hope. Eliminating qualified immunity is probably the biggest single step that the Supreme Court or Congress could take to reduce government misconduct and improve accountability. Yet, in qualified immunity's absence, there would remain multiple other substantive and procedural barriers to relief, judges and juries predisposed in favor of government defendants and against civil rights plaintiffs, and local government practices that dampen the deterrent effect of civil rights suits on officers and officials. Eliminating qualified immunity will not address these barriers to relief and reform. But eliminating qualified immunity will prompt several significant shifts in civil rights litigation—it will clarify the law, reduce the cost and complexity of civil rights litigation, increase the number of attorneys willing to consider taking civil rights cases, and put an end to decisions protecting officers who have clearly exceeded their constitutional authority. Eliminating qualified immunity should, therefore, be understood as a preliminary—but important—step toward greater accountability and deterrence.

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  1. All and all, I have to agree with the Author. There are many reasons to eliminate qualified immunity- one of them being that it might decrease the propensity of government officials to engage in constitutionally strained behavior. The author asserts that this may not play a substantial part in split second decisions, as in the case of police officers. I’m ok with that- because it would hopefully make many other government agents think twice before applying the endless list of other government actions on the public- applications that require significantly more deliberation. This might include the actions of judges, DAs, FBI investigators and administrators at the IRS and EPA. Even if officers “on the beat” do not change their behavior, the potential to deny other agents this shield should be a bonus.

    But beyond that deterrent effect, there are many other reasons. One that doesn’t get much play is justice for the accuser. Their rights were violated, and they deserve compensation. And in so much as a specific agent deliberately did the violating, it is just that the accuser gets compensation from that agent.

  2. Prof. Schwartz misunderstands how incentives work. The question is not whether individuals typically have a particular incentive consciously in mind, but whether they mold their overall behavior to respond to incentives. Today I am drafting a loan agreement, and I may not think about the eventual fee at all today, but I certainly wouldn’t be drafting a loan agreement if I didn’t generally get paid for such activity. Or, when interacting with female associates, I don’t think consciously about false sexual harassment accusations, but I generally avoid eating lunch or otherwise socializing with just one female.

  3. an officer must “choose between being charged with dereliction of duty if he does not arrest when he has probable cause”

    Seriously, is this something that has ever actually happened?

    I can’t imagine that this would be at all possible in today’s world of police union contracts.

  4. The practical problem with qualified immunity is that it has been taken to extremes. A cop beats up an unconscious handcuffed prisoner — and gets away with it because the Supreme Court hasn’t said “Don’t do that if he’s unconscious AND handcuffed AND in the back seat”.

    The proper standard is what a an ordinary person would get away with; if Joe Blow would be charged with a crime because a reasonable person would know not to beat up someone helpless like that, so should the cop.

    IOW, why are cops being held to such a low standard compared to ordinary people?

    This goes right along with a similar problem: that ignorance f the law is no excuse for ordinary people, but is allowed for cops and prosecutors.

    It’s all backwards. What the hell is the purpose of a police academy with all that training, if all it does is suck knowledge out of cops?

  5. eliminating qualified immunity might encourage plaintiffs’ attorneys to file more cases

    This is not possible, simple as a matter of mathematics.

    Sensible reform number 1 :

    adopt the policy of everywhere else in the common law world and make the loser pay the costs

  6. Perhaps I understand the deferential tone of this article, so as to convince those in power to loosen the reigns a bit on what the SCOTUS has litigated out of existence through a line of pro-government activist decisions.
    But where is the outrage? The statute does not have a qualified immunity (or judicial immunity or sovereign immunity) clause in it. It is not how or why it was written.
    If the jurisprudence of today, in re qualified immunity, were applied to the civil actions that were filed when the statute was originally written, circa 1871, all the corrective power and citizen empowerment of the legal statute would have been short-circuited in an instant, and the very reason for the statutes would have been mooted. The very power that Congress intended to impart to the people would have been erased from the very first application of the law.
    It was called the Civil Rights Act of 1871, and was specifically intended to provide a federal remedy to American citizens where the States’ legal system was so corrupt as to be ineffective, particularly in the enforcement of anti-discrimination of state officials.
    So, this article plays a disgusting deference and obsequious kowtowing of modern jurisprudence, by which through judicial activism destroyed a statute and intent of Congress, when Congress made none of the pre-requisite conditions that the courts have imposed for a valid claim.
    It is obvious that apparently Congress has to make clear what is already clear in the statute – no immunities are provided for.

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