With so many legal-related issues swirling around on my (admittedly limited) social media feeds, I’ve had a plethora of things that I could write about. Unfortunately, many of them I am completely unqualified to discuss (race, sexual orientation, police brutality, etc.), while others I cannot discuss for ethical/professional reasons. That said, I figured I’d focus some attention on one that I am both somewhat qualified to and not otherwise prohibited from opining on. Namely, I want to darken your feeds with a more in-depth discussion of the doctrine of qualified immunity and why I remain unconvinced that it should be “eliminated” as many people are currently clamoring for.
Qualified immunity is a complicated subject, which I fear has been oversimplified to mean that police and other government officials are “unaccountable,” simply because they cannot be sued for money damages. The reality is that there are a lot of difficult legal and policy questions involved with the wholesale elimination of qualified immunity. As such, it is far from clear to me that even if that movement were to succeed that it would produce the promised results. Allow me to explain myself in more detail.
First, as I frequently do, I feel a need to explain what the law actually is. So, let’s start with where a citizen’s right to bring lawsuits against state and local officials for money damages comes from. Basically, when people talk about suing the government there are generally two kinds of things that a court can be asked to do. One is grant what lawyers call “injunctive relief,” basically an order prohibiting the government official from taking or continuing to take a specific action (i.e., stop holding a person in custody; or stop enforcement of an unconstitutional law). The other kind of ask is the one most people think of when they hear the word “lawsuit;” namely, a suit for “money damages,” where the person suing claims they have suffered damages and want the government to compensate them for their loss with money.
Most suits for money damages are brought in state and local courts. However, since its enactment in 1867, federal law, specifically, 42 USC § 1983 (section 1983 or § 1983), states that
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Thus, the general rule is that, under § 1983, any state actor who violates an individuals’ constitutional rights or otherwise breaks the law “shall be liable” to the party injured. In other words, if you are the victim of state action in violation of your rights (statutory, constitutional, or otherwise), you have a claim for money damages under federal law, which can be brought in federal court.
Like many statutes, however, even though they do not specifically contain exceptions, they are interpreted by courts in light of other generally accepted legal doctrines. These include things like “cannons of statutory construction” and common law (i.e., judicially created) immunities. Qualified immunity is one such common law doctrine, which, where applicable, shields state actors (state and local police, social workers, firefighters, EMTs etc.) from liability for misconduct, even when they violate individual constitutional rights or otherwise break the law.
Contrary to some commentators that I have seen, this doctrine is not new. In fact, the Supreme Court first applied the modern doctrine of qualified immunity to a section 1983 claim in 1967. The case, Pierson v. Ray, held that “the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983.” 386 U.S. 547, 557 (1967). The Court thus described qualified immunity as grounded in common-law defenses of good faith and probable cause that were available for state-law false arrest and imprisonment claims. While Pierson focused on common-law defenses available at the state level at the time the case was filed, subsequently, the Court has repeatedly explained that qualified immunity is drawn from common-law defenses that were in effect in 1871, when § 1983 became law. See, e.g., Filarsky v. Delia, 566 U.S. 377, 383 (2012) (“Our decisions have recognized similar immunities under § 1983, reasoning that common law protections ‘well-grounded in history and reason’ had not been abrogated ‘by covert inclusion in the general language’ of § 1983.” (quoting Imbler v. Pachtman, 424 U.S. 409, 418 (1976))); Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (asking whether immunities “were so well established in 1871, when § 1983 was enacted, that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them” (quoting Pierson, 386 U.S. at 555))
After Pierson, the Court has consistently expanded the scope and application of qualified immunity. In 1974, the Court decided Scheuer v. Rhodes, 416 U.S. 232 (1974), where it effectively abandoned the analogy to common-law torts with a good-faith defense. The Court in Rhodes held that the doctrine of qualified immunity would apply to all suits under Section 1983 not just those where a good faith defense had previously existed. Then, in 1982, the Court decided Harlow v. Fitzgerald, 457 U.S. 800 (1982). In Harlow, the Supreme Court said that what mattered was not the defendant’s actual good-faith belief in the legality of their action, but “the objective reasonableness of an official’s conduct, as measured by reference to clearly established law.” (Emphasis added.) In other words, after Harlow qualified immunity is available in all cases, to all defendants, unless the rights violated were “clearly established.” The Supreme Court has continued to tighten this standard over the years, clarifying that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
There is a growing concensus amongst many legal commentators that it’s exceedingly difficult to determine exactly what it means for rights to be “clearly established.” There is little doubt that “clearly established” is an exacting standard that is nearly impossible, in most cases, for plaintiffs to satisfy. To deny qualified immunity, courts generally require not just a clear legal rule, but a previous case with nearly identical facts. Although the Supreme Court has indicated that an exact case on point is not strictly necessary, it has also stated that “existing precedent must have placed the statutory or constitutional question beyond debate.” Reichle v. Howards , 566 U.S. 658, 664 (2012). As lawyers are quite skilled at disputing even seemingly obvious points, and courts regularly rely on minor factual distinctions to reach the conclusion that the law was not “clearly established,” there are a large number of cases with clear and indisputable rights violations—some of which involve downright egregious, embarrassing, and beyond indefensible behavior by law enforcement officials—for which damages are denied on qualified immunity grounds.
All of this leaves us with a statute interpreted to include a judicially created, common law immunity that is nearly impossible to satisfy. But is it objectively wrong? And, if so, what can be done to correct it? These are much more difficult questions to answer. Let me start with the first question, is qualified immunity objectively wrong? The answer, as it frequently does, depends on what exactly one means. Was the Supreme Court wrong to find that the doctrine applies to cases brought under § 1983? No, I don’t think so, at least not entirely. There are some very good legal and policy reasons to have qualified immunity, at least in the original “good faith” sense of the doctrine. For example, let’s assume that a state or local government passes a law of questionable or debatable constitutionality. It can sometimes take years to obtain a definitive ruling about the law one way or the other. In the meantime, the law will (unless enjoined by a lower court) need to be enforced. Local officers, acting in good faith, do just that, but their actions (all reasonable) causes a citizen damage. Shorty after the enforcement that causes the damage the courts conclude that said law is unconstitutional. Should the officer be held responsible for doing their job in good faith? At the time the officer acted the law was on the books and enforceable. It was later determined to be a bad (unconstitutional) law. That’s not the officer’s fault or even within his or her control. Yes, the action of the officer caused damage, but it was reasonable and lawful at the time. It seems, at least to me, that this is precisely the kind of scenario for which qualified immunity was intended to apply. The fact that one can posit such scenarios (and there are others), means, again at least to me, that qualified immunity is not “wrong.” Now the doctrine may have been overdeveloped and applied too broadly or in too many circumstances, but it’s not obvious that it is entirely, or even objectively wrong. If that’s correct, then it seems the solution that must follow is to narrow its application, not eliminate it entirely.
And here is where things get really complicated. If we can agree that qualified immunity needs to be narrowed, who is to do and how? Two options for the first question. One is that the Supreme Court can do this on its own. They created the doctrine as a matter of common law; thus, they can modify it. The Supreme Court, however, has declined to do so and—as evidenced by this most recent term where it declined to grant certiorari in several cases that would give them an opportunity to narrow the doctrine—seems unlikely to do so anytime soon. The Court isn’t the only option. Qualified immunity is a doctrine of common law origins. It is not constitutionally based. Therefore, Congress can amend § 1983 anytime it wants and place limits on the immunities available to the Court.
That answers the who, but now for the how. This is really, really hard. Any change in qualified immunity policy is going to have consequences, intended and unintended. Let’s start with a simple problem, should we narrow qualified immunity just for law enforcement agencies? Keep in mind that qualified immunity applies to all state and local officials, not just law enforcement. On one level, narrowing for only law enforcement makes sense as law enforcement is arguably the biggest beneficiary of the doctrine. On the other hand, narrowing the doctrine may have the biggest effects on how law enforcement behaves and how cities, counties, and states respond. Consider two other issues.
First, a narrowed qualified immunity means there are a greater number of actions for which law enforcement can be held liable. A reasonable question to ask is whether we want law enforcement to consider potential liability before acting? In other words, do we want cops to engage in a risk v. reward analysis before deciding whether to act? Now, to be sure, on some level this already happens. But if we narrow qualified immunity it likely will happen more often and perhaps at times when it otherwise shouldn’t. It seems to me there is a risk of making cops “gun shy” not in the literal sense of being afraid to use their weapons (though that might not always be a bad thing), but in the broader sense of being afraid to run towards the danger, or make the questionable call that could save lives but might damage property. There are thousands of decisions made by officers each and every day that might subject them to liability, the more of those there are the potentially more paralyzing the job can become. We certainly do not want officers to be free to do whatever they want whenever they want, but nor do we want them so paralyzed that they can’t or won’t act when we most need them to. This is a delicate balance that any reduction in qualified immunity must seek to obtain. It’s also an incredibly difficult line to draw, especially in legislative language.
Second, if you narrow qualified immunity you increase the likelihood that damages will be paid to citizens. That’s fine, but where is that money going to come from? The answer as it turns out is almost always from us the taxpayers. The reason for this is that almost all public officials (especially members of law enforcement) are indemnified. This means that even when a public official, like a law enforcement officer, is sued in their individual capacity, their local or state employers will almost always pay for their legal defense and cover the cost of any judgment against them. According to one study, state and local governments paid approximately 99.98% of all dollars that plaintiffs recovered in § 1983 suits against law enforcement. See Joanna Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014). In other words, increasing liability increases the cost of providing services. Put another way, the cost of paying damages will become “factored into” the budgets of law enforcement agencies, likely resulting in them requiring a greater amount simply to keep operations at their current levels.
One counter to this is that state and local governments could stop indemnifying law enforcement and require officers to obtain private insurance policies that will cover the potential liability. Certainly, this is a possibility, however, it is far from clear that it will work they way some may hope. Insurance is costly and suits, even long shot suits, cost money to defend. As more suits are filed the cost of the insurance will go up to cover the costs of the increase in payouts. Just look at medical malpractice rates, which are so high in some places that they actually prevent doctors and other health care providers from opening offices and providing services. I don’t know that the same would happen to law enforcement, but it seems possible that a personal liability policy would make being an officer so expensive that many people would opt not to do it. Similarly, if salaries were to increase to cover the cost of the policies, the burden on state and local budgets would still be quite high as to potentially be cost prohibitive.
The point is that there are costs associated with changing the doctrine. Costs that need to be borne by someone or something, whether the officers personally, the state and local governments that employ them, or some other entities like an insurance company. Someone is going to need to come up with the money and this is not a minor sum we are talking about. What is the monetary value of a constitutional rights violation? Presumably it’s not hundreds of dollars, but more likely hundreds of thousands and even millions. Would this increase officer accountability? Maybe, it is true that there are few incentives greater than the almighty dollar. But it is far from a certain result and may take years and millions in settlement and judgment payments for the system to sufficiently adjust and an equilibrium to be established.
Just to be clear, none of these are reasons not to reform qualified immunity. Nor am I suggesting that I wouldn’t be in favor of reform. I do not think I favor wholesale elimination for the reasons noted above. Honestly, with respect to narrowing the application or other reform, I don’t yet know how I ultimately come out on the question. My purpose was merely to explain the law and to point out that it is very, very complicated, much more so than I think is being debated at least in some corners of the interwebs. Reforming qualified immunity is arguably seen as “low hanging fruit” in the minds of some advocating for more general police reform. Of that I’m not so sure. I think there may be other, easier, less complicated reforms to tackle first, while we carefully study this one and figure out what the best approach is going to be. Maybe this is done piecemeal as part of some state and local reforms first, to see what the actual effects are before Congress adopts a nationwide rule of law for § 1983.
Again, I don’t know what the “best” answer here is, I only know that all decisions have consequences and we should be sure we know what they might be here before rushing to make a change we don’t fully appreciate and understand.