Ongoing protests against racism and police brutality have already sparked changes, including more serious charges against the officer who killed George Floyd and new charges against his fellow officers who watched without intervening, a pledge by the Minneapolis City Council to disband and replace the existing police force, and the beginning of reform throughout the country. Many of the moves are long overdue. Whether they will lead to lasting improvement, however, remains to be seen. In the wake of civil unrest in the 1960s, the Kerner Commission recommended bold action to redress racism and to reform policing, but inadequate implementation followed, leading to our current moment. One hopes but cannot be sure that we are not witnessing a case of plus ça change, plus c’est la même chose.
A truly bold package of reforms would address institutional racism in all its forms, but even focusing narrowly on criminal justice, we can readily identify an emerging consensus for such measures as community policing, civilian review boards, demilitarization of police tactics, bail reform, an end to mass incarceration, and more. Without diminishing the utility of those measures, the balance of this column focuses on one further, relatively narrow proposal that has lately garnered some bipartisan support: eliminating or at least substantially cutting back on the qualified immunity that police officers enjoy when sued for violating federal civil rights. As I explain below, that change could be beneficial, but it might not be; indeed, it might even backfire.
What is Qualified Immunity and Where Does it Come From?
In 1871, President Ulysses S. Grant signed the Ku Klux Klan Act. One of its key provisions, currently codified at 42 U.S.C. § 1983, authorizes victims of civil rights violations by state and local officials to sue for damages. To win such lawsuits, however, plaintiffs must do more than prove that the defendants violated their civil rights. They must show that it should have been obvious to the defendants that they were violating the plaintiffs’ civil rights. In legal jargon, the plaintiffs must overcome defendant officers’ “qualified immunity” from suit by showing that, as Justice Alito wrote for the Supreme Court in 2014, the “contours” of the rights allegedly violated “were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating” them.
Neither that language nor any hint of the doctrine of qualified immunity appears in Section 1983. Why, then, has the Court believed itself justified in granting defendant officers qualified immunity? The cases point to two main reasons.
First, one sees policy grounds. Civil liability provides government officials with an incentive to avoid violating civil rights, but it risks over-deterrence of, and thus dereliction of duty by, state and local officials. The body of constitutional law is complex and, at least at the margins, frequently indeterminate. Judges and justices often disagree with one another over whether some particular action by the police was unconstitutional. Liability after the fact for what was not clearly rights-violating conduct when it occurred could be unfair to the officers held liable and could, over the long run, lead them to err too far in under-enforcing the law for fear of liability.
Second, courts and commentators justify qualified immunity as consistent with, even if not commanded by, the text of Section 1983. Lawmakers do not legislate in a vacuum. The Reconstruction Congress that adopted the Ku Klux Klan Act did so against a common-law background that included various defenses, supposedly including qualified immunity. On this view, when Congress created what we now call 1983 actions, it expected defendants to be able to raise qualified immunity as a defense.
Critics of Qualified Immunity
In recent years, scholars and others have criticized qualified immunity on various grounds. Liberals and progressives typically argue that in the name of avoiding over-deterring police enforcement of the criminal law, qualified immunity ends up under-deterring violations of civil rights. Some versions of this critique aim at qualified immunity itself, while other versions assert simply that the Court has defined qualified immunity too broadly. If an officer can point to even relatively minor differences between his conduct and the conduct found to violate civil rights in prior cases, he may be able to escape liability under the Court’s requirement that the contours of civil rights be recognizable to any reasonable officer. (For a dramatic and darkly humorous illustration of how minor the distinctions with prior cases can be to provide qualified immunity, readers can view the most recent episode of Last Week Tonight, in which John Oliver discusses qualified immunity, beginning at roughly the 22-minute mark.)
Meanwhile, conservatives have leveled a different critique of qualified immunity. Concurring in a 2017 case, Justice Clarence Thomas complained that the doctrine had lost touch with its common-law roots. To similar effect, University of Chicago Law Professor William Baude argued in a 2018 article in the California Law Review, the modern doctrine of qualified immunity does not closely resemble the common-law background against which the Reconstruction Congress legislated—so even assuming judicial authority to read defenses as preserved by statutes that are silent with respect to defenses, the modern doctrine would not be justified.
Given the convergence of criticism from the left and the right, there is a real possibility that either Congress will repeal or the Supreme Court will reconsider the doctrine of qualified immunity and either abandon it entirely or substantially curtail it. Should qualified immunity be tossed in the ashbin of history?
Benefits of Curtailing Qualified Immunity
The answer to that question is not entirely clear—even to me, and I am among the liberal/progressive scholars who think the Court has gone too far in shielding state and local officers from liability for violating civil rights. Why wouldn’t the elimination or diminution of qualified immunity be unambiguously beneficial? The short answer is that it interacts with other elements of the legal system in ways that are sufficiently complex to make any prediction uncertain.
At the most basic level, eliminating qualified immunity would not result in police officers paying damages to victims of civil rights violations, because even today officers found to lack qualified immunity do not pay damages from their own pockets. Under the near-universal practice, municipal employers reimburse them for any damages liability pursuant to indemnification provisions in the contracts that police unions negotiate in favor of their officers.
That does not mean, however, that eliminating or curtailing qualified immunity would have no impact. A pair of Supreme Court cases currently frames municipal liability. Under the 1980 ruling in Owen v. City of Independence, municipalities can be held directly liable for violating constitutional rights even if their officers enjoy qualified immunity, but under the 1978 ruling in Monell v. Dep’t of Soc. Serv., local governments will nonetheless typically escape liability unless the plaintiffs can establish that the officers who violated their rights did so pursuant to a “policy or practice.” Monell specifically rejected the tort principle of respondeat superior, under which a principal bears liability for the wrongs committed by its agents.
Given the practice of indemnification, eliminating or dramatically curtailing qualified immunity would effectively undercut Monell. And that, in turn, could be beneficial in much the way that tort liability generally leads to safer conduct. Putting municipalities on the hook for their officers’ rights violations even when the underlying conduct fell into an arguable gray area at the time it took place would give municipalities a strong financial incentive to train, supervise, and discipline their officers.
Potential Unexpected Consequences
Accordingly, the move to eliminate or diminish qualified immunity could be part of the solution to police violence. But there remain at least two reasons for skepticism.
First, even under current law, the officers who engage in the most egregious violations—such as the use of clearly excessive force that results in an arrestee’s death—do not have qualified immunity. Municipalities routinely pay millions of dollars in damages to settle lawsuits for such conduct, and individual officers face the risk of termination and imprisonment. Yet despite those incentives, Americans—and especially African Americans—experience an unacceptable level of unjustified police violence. Adding an additional measure of liability by curtailing qualified immunity would likely have only a marginal benefit.
Second, in at least one way, eliminating or scaling back qualified immunity could license further rights violations. To see how, imagine that you are a principled conservative Supreme Court justice or other federal judge. You want to recognize constitutional violations, but you do not want to saddle individual officers or the municipalities that indemnify them with excessive liability. Under current law, you can balance these concerns by finding that conduct that once fell into a gray zone in fact violated constitutional rights but that the officers should not be held liable for failing to anticipate your interpretation of prior law. You can, in effect, issue prospective-only rulings.
However, if there is no qualified immunity, your impulse to protect the police against what you regard as unfair retroactive liability will have only one outlet. You will construe substantive constitutional rights less generously, finding that the underlying conduct was permissible after all. As I explained in an April column, requiring all rights-recognizing decisions to be fully retroactive increases the costs of those decisions and thus makes them less likely in the first place. For all of its flaws, qualified immunity may actually facilitate the progressive development of constitutional rights.