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Imagining a World Without Qualified Immunity, Part I

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Qualified immunity shields government officials from financial liability, even if they have violated the Constitution, so long as they have not violated “clearly established law.” According to the Supreme Court, the law is only clearly established if a prior decision has held very similar facts to be unconstitutional. Officers are entitled to qualified immunity even if they have engaged in clear misconduct, and even if they knew what they were doing was wrong.

Every year, courts across the country grant government officials qualified immunity in decisions that describe tragic facts and outrageous behavior; in them, defendants who have searched homes without probable cause, stolen property in police custody, fabricated  evidence, and used excessive force are shielded from liability.

Courts, commentators, and organizations across the ideological spectrum are calling on the Supreme Court to abolish or severely limit qualified immunity. Presidential candidates Julián Castro, Bernie Sanders, and Elizabeth Warren have made eliminating qualified immunity part of their platforms. And, despite the Court’s apparent enthusiasm for qualified immunity, several sitting justices have indicated they are open to rethinking the doctrine.

Justice Sotomayor, sometimes joined by Justice Ginsburg, has criticized the Court’s qualified immunity decisions for undermining government accountability by “sanctioning a ‘shoot first, think later’ approach to policing.” And in Ziglar v. Abbasi, Justice Thomas criticized the doctrine for straying from its common law foundations and recommended to his colleagues that, “[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence.”

Although the Court has yet to accept Justice Thomas’s invitation, it seems like only a matter of time until it does. Petitions for certiorari in qualified immunity cases are now regularly invoking Justice Thomas’s language in Ziglar. The ACLU, the Cato Institute, and the Law Enforcement Action Partnership, among others, have submitted multiple amicus briefs to the Supreme Court, urging it to reconsider the defense. On October 1, the Supreme Court will consider a petition for certiorari in one of these cases—Baxter v. Bracey. Whether or not the Court grants cert. in Baxter, there is every reason to believe this coalition of critics will continue to bring their arguments to the Court.

If the Court does decide to take a closer look at qualified immunity, it will find compelling reasons to greatly restrict or abolish the defense. The Court originally justified qualified immunity as drawn from common law defenses available when Section 1983 became law, and now justifies the doctrine as necessary to shield government defendants from the costs and burdens of litigation in insubstantial cases. But, as critics have shown, qualified immunity doctrine bears little resemblance to defenses available when Section 1983 became law, undermines government accountability, and is both unnecessary and ill-suited to shield government defendants from the burdens and distractions of litigation. (I set out these arguments in a series of posts on Reason last year.)

The Supreme Court has written that evidence undermining its assumptions about the realities of constitutional litigation might “justify reconsideration of the balance struck” in its qualified immunity decisions. But the Court may fear how constitutional litigation might change if they take the type of dramatic action compelled by the record. The Court has repeatedly described qualified immunity as critically important to government officials and “society as a whole,” suggesting a fear that restricting or eliminating the doctrine will do significant harm. To date, the strongest defenses of qualified immunity have been various predictions that the world would be worse off without it: Plaintiffs would file many more frivolous suits, plaintiffs would recover much more money against government defendants, and these suits and costs would threaten individual defendants’ pocketbooks, bankrupt local governments, chill officer behavior on the street, and discourage people from accepting government jobs. Faced with these bleak prognoses, the Court may be reluctant to reconsider qualified immunity doctrine, despite its many flaws.

I don’t share these concerns. Of course, it is impossible to know for certain what impact eliminating or restricting qualified immunity might have. But, while these bleak prognoses have been made fleetingly and without empirical support, my views about a post-qualified immunity world are informed by the most comprehensive examination to date of the role qualified immunity plays in Section 1983 litigation—including a study examining the dockets in almost 1200 federal civil rights cases filed in five federal districts over a two-year period, surveys of almost 100 attorneys who represented plaintiffs in these cases, and in-depth interviews of thirty-five of these attorneys—in conjunction with my studies of police indemnification practices and government budgeting for settlement and judgment costs. All empirical studies have limitations, and these studies are no exception. But they present the most comprehensive picture to date of the role qualified immunity plays in constitutional litigation and therefore offer the best starting place to begin imagining constitutional litigation in a world without qualified immunity.

In an article forthcoming in Columbia Law Review, excerpted here this week, I set out several predictions that differ in important ways from conventional wisdom: plaintiffs’ and defendants’ litigation success rates would remain relatively constant; the overall cost and time associated with litigating constitutional claims would decrease; more civil rights lawsuits would be filed, but other considerations would continue to discourage attorneys from filing insubstantial cases; and settlements and judgments would continue to have a limited impact on officers’ and municipalities’ dollars and decisionmaking.

If my predictions are correct, abolishing qualified immunity would make litigation more efficient, increase the number of suits filed, and shift the focus of civil rights litigation to what should be the critical question at issue in these cases—whether government officials exceeded their constitutional authority. But eliminating qualified immunity would not dramatically increase the rate at which plaintiffs prevail; open the floodgates to meritless lawsuits; or alter government indemnification and budgeting practices that dampen the effects of lawsuits on officers’ and officials’ decisionmaking.

These predictions should offer some comfort to justices on the Court who might fear that doing away with qualified immunity could somehow jeopardize policing or “society as a whole.” But these predictions should also temper the optimism of those who believe that doing away with the doctrine will usher in a new age of government accountability. Eliminating qualified immunity would increase access to the courts, clarity about the law, and transparency about the conduct of government officials, but it would not fundamentally shift dynamics that make it difficult for plaintiffs to redress constitutional violations and deter official misconduct.

Over the next four days, I will explain the bases for these predictions, and then offer some thoughts about how they should guide next steps by the Court and qualified immunity’s critics. See you tomorrow.

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