The Volokh Conspiracy
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Assessing the State of the Struggle to Reform Qualified Immunity
The Institute for Justice offers a generally pessimistic appraisal of the situation under state law, but some optimism about prospects in the Supreme Court.
In the aftermath of the killing of George Floyd by Minnesota police officer and resulting nationwide protests in 2020, many hoped that these tragic events would generate political momentum for abolishing or at least severely curtailing qualified immunity, the judicially created legal doctrine that shields law enforcement officers and other government officials from most liability for violating constitutional rights. Sadly, after some initial success, reform efforts seem to have largely stalled at the state level, and the Supreme Court has recently signaled it may be unwilling to pursue more than a very modest revamping of the doctrine.
Qualified immunity exempts government officials from most civil liability for violations of constitutional rights unless there is "clearly established" precedent indicating that what they did was illegal. All too often, courts interpret "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 leading legal scholars, such as Joanna Schwartz, and co-blogger Will Baude.
The Institute for Justice (IJ), a public interest law firm that has helped lead the fight to abolish QI, recently put out two notable publications assessing the state of QI reform. Both are must-reads for those who follow this issue. The first, 50 Shades of Government Immunity, by Kendall Morton and Megan Cairns, provides an overview of the state of official liability for rights violations in all 50 states, as well as the District of Columbia and various US territories. The second, an article by IJ attorneys Patrick Jaicomo and Anya Bidwell, is an analysis of recent Supreme Court precedents relevant to QI and what they portend for the future. Jaicomo and Bidwell are much more optimistic about the Supreme Court than Morton and Cairns are about the states.
50 Shades of Government makes for grim reading. Of the 56 jurisdictions rated (50 states, DC, Puerto Rico, and several territories), only three (New Mexico, California, and New Jersey) have grades in the A or B range on the authors' A to F scale. New Mexico's "A-" is the only grade in the A range; California and New Jersey each get a B-. By contrast, there are numerous Ds and Fs.
Even Colorado and Connecticut, states which enacted important reform laws in the wake of George Floyd protests, get mediocre grades (C+ for Colorado, and C for Connecticut). The low scores are in part due to the fact that Morton and Cairns are tough graders. For example, Colorado gets only a C+ in large part because its otherwise strong reform law only applies to law enforcement officers, not other state officials.
Despite being a state employee myself (a state university professor), I agree with the authors that QI and similar state-level doctrines should be abolished for all government officials; yes, including me! But law enforcement officers are particularly important, because few other officials literally wield the power of life and death over citizens, or have the ability to arrest and detain them.
The authors may also dock Colorado and some other states more than they should for allowing lawsuits only under state civil rights statutes, rather than directly under the state constitution. If a victim of official abuse can get the compensation she deserves, I'm not sure it matters greatly whether it is under a statute or through the state constitution directly. That's especially true in the many states where the distinction between constitutional and statutory law is much weaker than at the federal level, because their constitutions are relatively easy to amend. Thus, I think Colorado probably deserves a higher grade. The same can be said for a few other states.
Despite such caveats, Morton and Cairns are right to emphasize the severe flaws in the status quo in most jurisdictions. Much work remains to be done. In a previous post, I offered some reasons why reforms have stalled, and made tentative suggestions on how to regain momentum.
Jaicomo and Bidwell's analysis of the Supreme Court is much more optimistic. They go over several Supreme Court rulings in late 2020 and early 2021 that indicate the Justices are willing to curb QI. My own view is that these rulings are more ambiguous than Jiacomo and Bidwell suggest, and may be compatible with a scenario where a majority of the justices merely want to curb the more extreme abuses of QI, rather than end the doctrine altogether, or even severely restrict it. But Jiacomo and Bidwell make a strong case for their more positive assessment.
If their article has a weakness, it is the seeming dismissal of two recent Supreme Court decisions that appear to put the brakes on QI reform. These rulings have led other commentators, including myself, to become more pessimistic (see also analyses by Billy Binion and Mark Joseph Stern). Jiacomo and Bidwell contend too much has been made of these cases, because they represent "an unexceptional continuation of the Supreme Court's general deference toward government defendants in its application of the clearly established test, especially in cases involving excessive force claims against law enforcement officers."
It could be that the Court still wants to curb QI in other settings. But "general deference toward government defendants in [the] application of the clearly established test" is the single biggest flaw in QI doctrine. If the Court is unwilling to seriously cut back on that, it's a sign the justices aren't willing to do much about QI more generally, other than curb some of the more extreme abuses. Even if judicial deference is going to be limited to excessive force claims against law enforcement officers, that category is itself an important issue, as it includes many of the most egregious cases.
That said, I think the jury is still out on the Court's ultimate intentions here. Even the justices themselves may not be certain about what they intend to do (or at least not the swing voters on this issue). As I have noted before, the unusual alliance of Clarence Thomas on the right and Sonia Sotomayor on the left does want to severely constrain QI. perhaps they will yet win over enough of their colleagues to make it happen. The imminent replacement of Justice Stephen Breyer (a relatively pro-law enforcement liberal) with a new justice who might have other views, could also help.
Overall, I take a slightly more optimistic view of state-level trends than Morton and Cairns, and a considerably more pessimistic view of the Supreme Court than Jiacomo and Bidwell. But there is a lot of uncertainty here, especially with regards to the Court. I could be wrong about the justices, and I hope that I am. In the meantime, both these works are valuable contributions to the public debate over qualified immunity reform.
NOTE: I have worked with IJ on a variety of issues over the years, but have not been involved in its QI reform and litigation efforts.
