The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Nationwide protests against police abuses in the wake of the death of George Floyd raised hopes that the resulting backlash could lead to the abolition of qualified immunity, a pernicious judicially created legal doctrine that shields law enforcement officers and government officials from most liability for violating constitutional rights. Qualified immunity makes many government officials immune from civil suits for violating constitutional and statutory rights in the course of performing their duties unless they have violated "clearly established" law.
Courts have historically interpreted "clearly established" so narrowly that officers routinely get away with horrendous abuses merely because no federal court in their area has previously decided a case with essentially identical facts. The doctrine has been severely criticized by prominent legal scholars (including Joanna Schwartz, and co-blogger Will Baude).
In the immediate aftermath of the Floyd killing and resulting protests, polls showed widespread support for abolishing QI, and the states of Colorado and Connecticut enacted new statutes barring or severely limiting qualified immunity under state law. In late 2020 and early 2021, the Supreme Court decided two cases reversing lower court qualified immunity rulings favorable to abusive prison guards. These were the first Supreme Court rulings denying qualified immunity in many years, and they led some observers to hope that the Court might be gradually moving in the direction of abolishing the doctrine altogether. I myself was more skeptical, though still moderately optimistic.
Sadly, both judicial and legislative reform efforts have stalled since these developments. In two decisions issued yesterday, the Court unanimously overruled lower-court decisions denying qualified immunity to police officers. Reason's Billy Binion and Mark Joseph Stern of Slate provide helpful overviews of the two cases.
I won't go over the details here. But the bottom line is that these rulings strongly suggest that a majority of justices are not ready to overrule the Court's precedents establish qualified immunity. It is noteworthy that even the two justices most hostile to qualified immunity in the past - Clarence Thomas and Sonia Sotomayor - did not dissent in either of yesterday's decisions. In my view, the facts of these two cases are somewhat less egregious than those of the two anti-QI rulings from late 2020 and early 2021. But, as Binion and Stern describe, they are still pretty bad.
If this is where the justices want to draw the line, it is compatible with a scenario where the majority of the Court seeks to curb some of the worst abuses of qualified immunity, but still largely leave the doctrine in place. I highlighted this possibility in earlier writings (e.g. here and here). Until yesterday, it was hard (at least for me) to tell whether this was really where the Court was headed. But I now believe it is by far the most likely scenario, at least for the near future.
It is still possible that the justices want to curb QI further, but simply decided now is not the right time, or that these two cases weren't the best vehicles for doing so. But, if so, it is hard to explain why they chose to hear these two cases in the first place. Usually, the Court takes cases because of their broader significance, not merely to correct individual errors. In combination with the anti-QI rulings from last year and earlier this year, the Court seems to be sending lower-court judges the message that QI may need to be pared back, but probably only modestly.
It is likely that Sotomayor and Thomas would still prefer to go much further than this. But, for the moment at least, they don't seem to have the five votes they need to do so.
Meanwhile, after a promising start in the summer of 2020, QI reform has also stalled in the states. The Washington Post recently published a detailed overview of these developments. The whole thing is worth reading. But the key takeaway is that reform has stalled in large part thanks to lobbying by police unions and other law enforcement interest groups. While large majorities of the general public oppose QI, most do not follow the details of reform legislation, and only a few voters see QI reform as one of their highest priorities. By contrast, police and other law enforcement interests are well aware of the issue, do follow relevant legislation closely, and are more than willing to punish state legislators who cross them.
As a result, the Post recounts, many politicians in both major parties have either abandoned reform efforts or greatly watered them down (as happened with a law enacted in the state of New Mexico). Reform efforts in Congress have stalled for similar reasons.
The dynamic here is far from surprising. Indeed, I warned against it last year, in my analysis of the Connecticut reform law, which was already much weaker than the earlier one adopted by Colorado:
[T]he Connecticut law is still a step in the right direction. But its limitations are a warning sign of how state-level qualified immunity reform can be watered down to avoid antagonizing police unions and other law enforcement interest groups. [Nick] Sibilla describes how police-union lobbying had an impact on HB 6004, which only barely passed, even in this weakened form.
There is a parallel here to the history post-Kelo eminent domain reform, under which 45 states enacted new reforms limiting state and local governments' power to take private property to promote "economic development." In the wake of the Supreme Court's enormously unpopular 2005 ruling upholding such takings, there was broad support for curbing them, and state legislatures worked to satisfy it. But much of the resulting legislation was largely toothless, because legislators were able to satisfy public opinion without offending powerful interest groups that benefited from the status quo.
Thanks to widespread political ignorance, most of the public doesn't follow the details of legislation, and therefore can't readily tell the difference between effective reforms and largely cosmetic ones. By contrast, organized interest groups can. Legislatures have incentives to satisfy the former without antagonizing the latter, and that helps explain why many state legislatures passed weak or totally ineffective eminent domain reforms after Kelo….
Like eminent domain reform after Kelo, abolishing qualified immunity enjoys widespread public support in the wake of the death of George Floyd and the resulting public focus on police abuses. But, as in the case of eminent domain reform, the devil of qualified immunity is often in the details, and most voters probably know little about them….
It is too early to say whether qualified immunity reform will follow the same pattern as eminent domain reform….Nonetheless, reform advocates should be aware of the dangerous dynamic that can arise when interest groups and legislators can take advantage of public ignorance to water down reform efforts.
There is no easy fix for this problem. But QI opponents should still continue to press both litigation and political reform efforts. Despite its limitations, post-Kelo eminent domain reform led to real achievements, with some 20 states enacting reform laws with real teeth, and many state courts constraining "economic development" takings under their state constitutions. As I explain in detail in my book on Kelo and other writings, successful constitutional reform efforts usually rely on a combination of litigation and political mobilization for legislative reform. The two are mutually reinforcing. As the Kelo case shows, even a high-profile defeat in Court can sometimes lead to effective reform, by attracting new public attention to the issue in question.
Future law enforcement abuses might well create opportunities to refocus public attention on QI reform. Nonetheless, the struggle against QI now seems likely to become a prolonged slog. In both the Supreme Court and the political arena, hopes for a quick victory have been largely dashed.