AFTER QUALIFIED IMMUNITY - Columbia Law Review

Courts, scholars, and advocacy organizations across the political spectrum are calling on the Supreme Court to limit qualified immunity or do away with the defense altogether. They argue—and offer compelling evidence to show—the 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. Some Supreme Court Justices appear to share critics’ concerns. Indeed, in 2017, Justice Thomas wrote that “[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence.” If the Court does reconsider qualified immunity, it will find compelling reasons to abolish or greatly limit the defense. Yet the Court may be reluctant to take this type of dramatic action for fear that doing so would harm government and society as a whole.

This Article offers five predictions about how constitutional litigation would function in a world without qualified immunity that should assuage these concerns. First, there would be clarification of the law but modest, if any, adjustment to the scope of constitutional rights. Second, plaintiffs’ and defendants’ litigation success rates would remain relatively constant. Third, the average cost, time, and complexity associated with litigating constitutional claims would decrease. Fourth, more civil rights lawsuits would likely be filed, but other doctrines and financial considerations would mean that attorneys would continue to have strong incentives to decline insubstantial cases. Fifth, indemnification and budgeting practices would continue to shield most government agencies and officials from the financial consequences of damages awards.

If these predictions are correct, abolishing qualified immunity would clarify the law, reduce the costs of litigation, and shift the focus of Section 1983 litigation to what should be the critical question at issue in these cases—whether government officials have exceeded their constitutional authority. But eliminating qualified immunity would not significantly alter the scope of constitutional protections, dramatically increase plaintiffs’ success rates, or transform government practices that currently dampen the effects of lawsuits on officers’ and officials’ decisionmaking. Doomsday scenarios imagined by some commentators—of courthouses flooded with frivolous claims—would not come to pass. And constitutional litigation would often still fail to hold government officials accountable when they exercise power irresponsibly.

The Supreme Court should not avoid reconsidering qualified immunity for fear that doing so would dramatically magnify the effects of lawsuits against government officials. And government accountability advocates should recognize that eliminating qualified immunity would not fundamentally shift dynamics that make it difficult for plaintiffs to redress constitutional violations and deter government wrongdoing.

The full text of this note may be found by clicking the PDF link to the left.

* Professor of Law, UCLA School of Law. Thanks to Karen Blum, Alan Chen, Richard Fallon, Barry Friedman, Aziz Huq, Jim Pfander, Jack Preis, Richard Re, Alex Reinert, Fred Smith, and Chris Walker for comments on earlier drafts. Thanks also to Blake Berich and Hannah Pollack for excellent research assistance, and thanks to Oluwatumise Asebiomo, Grace Assaye, Rebecca Arno, Tyler Becker, Benjamin Covington, Michael Fetterman, Stephen Piotrkowski, and the editors of the Columbia Law Review for excellent editorial assistance.

introduction

In this Article, I imagine a world without qualified immunity. 1 Qualified immunity shields law enforcement officers and other executive officials from damages liability so long as they have not violated “clearly established law.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For an overview of qualified immunity, what constitutes clearly established law, and the ways in which the doctrine has developed, see generally Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018) [hereinafter Schwartz, Case Against]. This may seem like a purely academic exercise. After all, the Supreme Court has been downright bullish about qualified immunity doctrine in recent years. 2 See Schwartz, Case Against, supra note 1, at 1798 (describing the Supreme Court’s recent qualified immunity decisions). For other descriptions and assessments of the Court’s recent qualified immunity jurisprudence, see generally Karen Blum, Erwin Chemerinsky & Martin A. Schwartz, Qualified Immunity Developments: Not Much Hope Left for Plaintiffs, 29 Touro L. Rev. 633 (2013) [hereinafter Blum et al., Qualified Immunity Developments]; Karen M. Blum, Qualified Immunity: Time to Change the Message, 93 Notre Dame L. Rev. 1887 (2018) [hereinafter Blum, Time to Change]. Since 2005, when John Roberts became Chief Justice, the Court has granted certiorari to consider twenty qualified immunity denials, and ruled in the government’s favor every time. 3 See William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45, 88–90 (2018) (listing the Supreme Court’s qualified immunity decisions since 1982). Note that Baude “omits some additional cases concerning qualified immunity that were decided only on procedural grounds and without application of the clearly established standard.” Id. at 82 n.219. By Karen Blum’s count, the Court has “confronted the issue of qualified immunity in over thirty cases” since Harlow. Blum, Time to Change, supra note 2, at 1887 & n.2. For the three most recent Supreme Court decisions postdating Baude’s analysis that reversed local court denials of qualified immunity, see City of Escondido v. Emmons, 139 S. Ct. 500, 503–04 (2019); Kisela v. Hughes, 138 S. Ct. 1148, 1152–55 (2018); District of Columbia v. Wesby, 138 S. Ct. 577, 589–93 (2018). The Court has repeatedly chastised lower courts for failing to use qualified immunity to shield government officials from damages liability. 4 See, e.g., Emmons, 139 S. Ct. at 503 (“The Court of Appeals should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances. Instead, . . . [it] defined the clearly established right at a high level of generality . . . saying . . . the ‘right to be free of excessive force’ was clearly established.”); White v. Pauly, 137 S. Ct. 548, 551–52 (2017) (noting the Supreme Court has “revers[ed] federal courts in qualified immunity cases . . . both because qualified immunity is important to ‘society as a whole,’ and because as ‘an immunity from suit,’ qualified immunity ‘is effectively lost if a case is erroneously permitted to go to trial’” (citations omitted) (internal quotation marks omitted) (quoting City & County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 n.3 (2015); Pearson v. Callahan, 555 U.S. 223, 231 (2009))); Sheehan, 135 S. Ct. at 1774 n.3 (“Because of the importance of qualified immunity ‘to society as a whole,’ . . . the Court often corrects lower courts when they wrongly subject individual officers to liability.” (quoting Harlow, 457 U.S. at 814)). And the Court’s recent decisions have further expanded qualified immunity’s reach. 5 See, e.g., Baude, supra note 3, at 48 (explaining that the Supreme Court has recently given qualified immunity “pride of place on the Court’s docket”); Kit Kinports, The Supreme Court’s Quiet Expansion of Qualified Immunity, 100 Minn. L. Rev. Headnotes 62, 64 (2016) (observing that in recent qualified immunity decisions, the Court “has engaged in a pattern of covertly broadening the defense, describing it in increasingly generous terms and inexplicably adding qualifiers to precedent that then take on a life of their own”).

But there have been growing calls by courts, 6 See, e.g., Zadeh v. Robinson, 928 F.3d 457, 480–81 (5th Cir. 2019) (Willett, J., concurring in part and dissenting in part) (observing that “a growing, cross-ideological chorus of jurists and scholars” are calling for reconsideration of qualified immunity). For other decisions critical of qualified immunity see, e.g., Horvath v. City of Leander, No. 18-51011, 2020 WL 104345, at *10–13 (5th Cir. Jan. 9, 2020) (Ho., J., concurring in the judgment in part and dissenting in part) (explaining that he would “welcome a principled re-evaluation of our precedents” related to qualified immunity); Ventura v. Rutledge, 398 F. Supp. 3d 682, 697 n.6 (E.D. Cal. 2019) (“[T]his judge joins with those who have endorsed a complete re-examination of the doctrine which, as it is currently applied, mandates illogical, unjust, and puzzling results in many cases.”); Manzanares v. Roosevelt Cty. Adult Det. Ctr., 331 F. Supp. 3d 1260, 1293 n.10 (D.N.M. 2018) (“The Court disagrees with the Supreme Court’s approach. The most conservative, principled decision is to minimize the expansion of the judicially created clearly established prong, so that it does not eclipse the congressionally enacted § 1983 remedy.”); Estate of Smart v. City of Wichita, No. 14-2111-JPO, 2018 WL 3744063, *18 n.174 (D. Kan. Aug. 7, 2018) (“[T]he court is troubled by the continued march toward fully insulating police officers from trial—and thereby denying any relief to victims of excessive force—in contradiction to the plain language of the Fourth Amendment.”); Thompson v. Clark, No. 14-CV-7349, 2018 WL 3128975, at *6–7 (E.D.N.Y. June 26, 2018) (“The legal precedent and policy justifications of qualified immunity, it has been charged, fail to validate its expansive scope. The law, it is suggested, must return to a state where some effective remedy is available for serious infringement of constitutional rights.”); Wheatt v. City of East Cleveland, No. 1:17-CV-377, 2017 WL 6031816, at *4–5 (N.D. Ohio Dec. 6, 2017) (criticizing the Supreme Court for allowing interlocutory appeals of qualified immunity denials). as well as by a number of commentators 7 See, e.g., Matt Ford, Should Cops Be Immune from Lawsuits?, New Republic (Sept. 12, 2018), https://newrepublic.com/article/151168/legal-revolt-qualified-immunity [https://perma.cc/TSJ9-B9HX] (highlighting examples of the “broad, cross-ideological push against qualified immunity” and the need for the Supreme Court to reform the doctrine); David French, End Qualified Immunity, Nat’l Rev. (Sept. 13, 2018), https://www.nationalreview.com/2018/09/end-qualified-immunity-supreme-court/ [https://perma.cc/5ZWC-93HD] (“Judges created qualified immunity, and they can end it. It’s past time to impose true accountability on public servants who violate citizens’ constitutional rights.”); George Leef, Qualified Immunity—A Rootless Doctrine the Court Should Jettison, Forbes (Mar. 21, 2018), https://www.forbes.com/sites/georgeleef/2018/03/21/qualified-immunity-a-rootless-doctrine-the-court-should-jettison [https://perma.cc/NC7K-8WT9] (arguing that “[t]he [Supreme] Court should go back to its original understanding of Section 1983—that it imposes strict liability on government officials for violations of citizens’ constitutional rights”); see also Blum, Time to Change, supra note 2, at 1892 (concluding that “the doctrine of qualified immunity is beyond repair” and urging “the [Supreme] Court to make the reformation of its qualified immunity doctrine unnecessary by revisiting and revamping another of its confusing creations, the doctrine of municipal liability under Section 1983”); Schwartz, Case Against, supra note 1, at 1800 (arguing that “[t]he Justices can end qualified immunity in a single decision, and they should end it now”). and advocacy organizations across the political spectrum, 8 See, e.g., Emma Andersson, The Supreme Court Gives Police a Green Light to ‘Shoot First and Think Later,’ ACLU (Apr. 9, 2018), https://www.aclu.org/blog/criminal-law-reform/reforming-police/supreme-court-gives-police-green-light-shoot-first-and [https://perma.cc/TJ9B-VV3M] (explaining that a recent Supreme Court qualified immunity decision “contributes to the deep deficit in police accountability throughout our country”); Jay Schweikert, Openings in the Front in the Campaign Against Qualified Immunity, Cato Inst. (June 12, 2018), https://www.cato.org/blog/openings-front-campaign-against-qualified-immunity [https://perma.cc/GQ66-XA75] (describing “Cato’s ongoing campaign to challenge the doctrine of qualified immunity”); see also infra note 16 and accompanying text. to reconsider qualified immunity or do away with the defense altogether. The Supreme Court originally described qualified immunity as an extension of common law defenses in existence when Section 1983 became law and later justified the doctrine on policy grounds—as a means of balancing an interest in government accountability against an interest in shielding government officials from the burdens of suit in insubstantial cases. 9 See Wyatt v. Cole, 504 U.S. 158, 170–71 (1992) (Kennedy, J., concurring) (“Our immunity doctrine is . . . based on the existence of common-law rules in 1871, rather than in ‘freewheeling policy choice[s].’ . . . [H]owever, we have diverged to a substantial degree from the historical standards. . . . The transformation was justified by the special policy concerns arising from public officials’ exposure to repeated suits.” (first alteration in original) (quoting Malley v. Briggs, 475 U.S. 335, 342 (1986))); Anderson v. Creighton, 483 U.S. 635, 644–45 (1987) (explaining that the Court’s immunity decisions were “made in light of the ‘common-law tradition,’” but that the doctrine was “completely reformulated” in Harlow “along principles not at all embodied in the common law” (quoting Malley, 475 U.S. at 342)); see also Schwartz, Case Against, supra note 1, at 1801–03 (describing these various justifications for the doctrine). Yet critics contend that the doctrine bears little resemblance to the common law immunities in existence when Congress enacted Section 1983, undermines government accountability, and is both unnecessary and ill-suited to shield government officials from the burdens and distractions of being sued. 10 See supra notes 6–8.

Some Supreme Court Justices appear sympathetic to these critiques. 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.” 11 Mullenix v. Luna, 136 S. Ct. 305, 316 (2015) (Sotomayor, J., dissenting); see also Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting) (expressing concern that the Court’s decision “sends an alarming signal to law enforcement officers . . . that they can shoot first and think later”). Justice Breyer concluded that qualified immunity was unnecessary for private defendants because they were likely to be indemnified by their employers 12 Richardson v. McKnight, 521 U.S. 399, 411 (1997) (explaining that private employment “increases the likelihood of employee indemnification and to that extent reduces the employment-discouraging fear of unwarranted liability potential applicants face”). —a rationale that would apply to government defendants who almost never satisfy settlements and judgments entered against them. 13 See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, apps. A–B at 962–66 (2014) [hereinafter Schwartz, Police Indemnification] (finding that law enforcement officers almost never contribute to settlements and judgments entered against them). And Justice Thomas has 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.” 14 Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017) (Thomas, J., concurring in part and in the judgment).

The Court has yet to accept Justice Thomas’s invitation to reconsider qualified immunity, but 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 v. Abbasi. 15 See, e.g., Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Eleventh Circuit at 27, Echols v. Lawton, No. 18-1358 (Apr. 24, 2019), 2019 WL 1916157; Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Sixth Circuit at 34, Baxter v. Bracey, No. 18-1287 (Apr. 8, 2019), 2019 WL 1569711; Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Tenth Circuit at 25, I.B. v. Woodard, No. 18-1173 (Mar. 8, 2019), 2019 WL 1126159; Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Sixth Circuit at 2, Brennan v. Dawson, No. 18-913 (Jan. 11, 2019), 2019 WL 193913; Reply Supporting Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Tenth Circuit at 6–7, Spencer v. Abbott, No. 17-1397 (Aug. 8, 2018), 2018 WL 3778553; Reply Brief on Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Tenth Circuit at 1, Pauly v. White, No. 17-1078 (May 31, 2018), 2018 WL 2684548; Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Ninth Circuit at 17–18, Shafer v. Padilla, No. 17-1396 (Apr. 3, 2018), 2018 WL 1705603; Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Tenth Circuit at 23, Apodaca v. Raemisch, No. 17-1284 (Mar. 9, 2018), 2018 WL 1315085; Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Fifth Circuit at 34, Melton v. Phillips, No. 17-1095 (Feb. 2, 2018), 2018 WL 722531; Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Sixth Circuit at 17–18, Noonan v. County of Oakland, No. 17-473 (Sept. 27, 2017), 2017 WL 4386875; Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Eighth Circuit at 19, Doe v. Olson, No. 17-296 (Aug. 23, 2017), 2017 WL 3701814; Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Third Circuit at 33–34, Walker v. Farnan, No. 17-53 (July 10, 2017), 2017 WL 2954392; see also Brief in Opposition to Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Fourth Circuit at 34, S.C. Dep’t of Corr. v. Booker, No. 17-307 (Nov. 21, 2017), 2017 WL 5714616 (arguing in opposition to a grant of certiorari, but stating that “if the Court decides to grant certiorari it should add a question presented permitting it to revisit the doctrine of qualified immunity as a potential alternate ground for affirmance”). An ideologically diverse collection of organizations—including the ACLU, the Cato Institute, and the Law Enforcement Action Partnership—have submitted multiple amicus briefs to the Supreme Court, describing a “cross-ideological consensus that this Court’s qualified immunity doctrine under 42 U.S.C. 1983 misunderstands that statute and its common-law backdrop, denies justice to victims of egregious constitutional violations, and fails to provide accountability for official wrongdoing.” 16 Brief of Cross-Ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner at 6, Almighty Supreme Born Allah v. Milling, No. 17-8654 (U.S. July 11, 2018), 2018 WL 3388317 [hereinafter Allah Cross-Ideological Amicus Brief]; see also Brief of Cross-Ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner at 4–5, Baxter v. Bracey, No. 18-1287 (U.S. May 31, 2019), 2019 WL 2370285; Brief of Cross-Ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner at 6, I.B. v. Woodard, No. 18-1173 (U.S. Apr. 10, 2019), 2019 WL 1596323. The Cato Institute has been filing separate amicus briefs arguing in favor of reconsidering qualified immunity. See, e.g., Brief of the Cato Institute as Amicus Curiae Supporting Petitioner at 2–3, Baxter v. Bracey, No. 18-1287 (U.S. May 30, 2019), 2019 WL 2354727; Brief of the Cato Institute as Amicus Curiae Supporting Petitioners at 2–3, I.B. v. Woodard, No. 18-1173, (U.S. Apr. 10, 2019), 2019 WL 1596319. Scholars, myself included, have also submitted amicus briefs to the Court, urging reconsideration of qualified immunity doctrine. See, e.g., Brief for Scholars of the Law of Qualified Immunity as Amici Curiae Supporting Petitioner at 4–5, Almighty Supreme Born Allah v. Milling, No. 17-8564 (U.S. July 11, 2018), 2018 WL 3388318; Brief of Legal Scholars as Amici Curiae in Support of Petitioner at 3–5, Baxter v. Bracey, No. 18-1287 (U.S. May 31, 2019), 2019 WL 2354728; Brief of Scholars for the Law of Qualified Immunity as Amici Curiae Supporting Petitioners at 2–4, I.B. v. Woodard, No. 18-1173 (U.S. Apr. 10, 2019), 2019 WL 1596321. The Court has yet to grant certiorari in any of these cases, but there is every reason to believe this coalition of critics will continue to find opportunities to bring their arguments to the Court.

If the Court decides to take a closer look at qualified immunity, it will find compelling reasons to greatly restrict or abolish the defense. Yet the Court may be reluctant to take the type of dramatic action compelled by the record. As others have observed, one cause for hesitation may be stare decisis. 17 For arguments that stare decisis should not impede reconsideration of qualified immunity, see Baude, supra note 3, at 80–82; Scott Michelman, The Branch Best Qualified to Abolish Qualified Immunity, 93 Notre Dame L. Rev. 1999, 2006–18 (2018). For arguments that the Supreme Court’s decisions reflect a deep commitment to the doctrine that cannot easily be disturbed, see generally Aaron L. Nielson & Christopher J. Walker, A Qualified Defense of Qualified Immunity, 93 Notre Dame L. Rev. 1853 (2018) [hereinafter Nielson & Walker, Qualified Defense]. This Article focuses on another possible concern that has received far less attention but may be giving the Court even more pause: how constitutional litigation would function in a world without qualified immunity.

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. 18 White v. Pauly, 137 S. Ct. 548, 551 (2017); City & County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 n.3 (2015); Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). 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 imperil individual defendants’ pocketbooks and the government fisc, chill officer behavior on the street, and discourage people from accepting government jobs. 19 See, e.g., Richard H. Fallon, Jr., Bidding Farewell to Constitutional Torts, 107 Calif. L. Rev. 933, 975 (2019) [hereinafter Fallon, Bidding Farewell] (predicting that eliminating qualified immunity could result in “frivolous and distracting litigation” and impose “unanticipated financial drains on the public fisc [that] could upset budgetary planning and withdraw resources from other needful programs”); Hillel Y. Levin & Michael L. Wells, Qualified Immunity and Statutory Interpretation: A Response to William Baude, 9 Calif. L. Rev. Online 41, 41 (2018) (eliminating qualified immunity would subject “police officers and other officials who deprive citizens of their constitutional rights . . . to much more liability than the current law permits”); Nielson & Walker, Qualified Defense, supra note 17, at 1881 (“[Q]ualified immunity’s core effectiveness might well not be in district courts formally utilizing the defense to dispose of Section 1983 lawsuits. Instead, its main influence could be in discouraging plaintiffs to file section 1983 lawsuits at all . . . .”); Michael L. Wells, Qualified Immunity After Ziglar v. Abbasi: The Case for a Categorical Approach, 68 Am. U. L. Rev. 379, 391 (2018) (“If officers were liable for every constitutional violation, they might hesitate before taking a step that produces a public benefit because an error would lead to personal liability.”); Andrew King, Keep Qualified Immunity . . . For Now, Mimesis (July 1, 2016), http://mimesislaw.com/fault-lines/keep-qualified-immunity-for-now/11010 [https://perma.cc/8LCT-GZCX] (“Mostly, but for qualified immunity, it’s a bonanza for plaintiff’s lawyers.”). Faced with these bleak prognoses, the Court may be reluctant to reconsider qualified immunity doctrine, despite its many flaws.

I do not share these predictions. Of course, it is impossible to know for certain what impact eliminating or restricting qualified immunity might have. We cannot know for certain whether or how eliminating qualified immunity tomorrow would change the litigation and disposition of cases filed today. We also cannot know for certain whether or how eliminating qualified immunity tomorrow might change plaintiffs’ decisions about whether to file cases next week. Eliminating qualified immunity might also cause judges and legislators to tinker in unforeseen ways with rights and remedial design. But uncertainty should not be a barrier to prediction. Courts and commentators have made strong claims about the anticipated effects of eliminating qualified immunity fleetingly and without empirical support. 20 See supra notes 18–19 and accompanying text. In contrast, 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—combining the results of a study examining the dockets in almost 1,200 federal civil rights cases filed in five federal districts over a two-year period 21 See generally Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2 (2017) [hereinafter Schwartz, How Qualified Immunity Fails] (examining “the frequency with which qualified immunity was raised, the stage of the litigation at which qualified immunity was raised, the courts’ assessments of defendants’ qualified immunity motions, the frequency and outcome of interlocutory and final appeals of qualified immunity decisions, and the cases’ dispositions”). with surveys of almost 100 attorneys who entered appearances in these cases and in-depth interviews of thirty-five of these attorneys 22 See generally Joanna C. Schwartz, Qualified Immunity’s Selection Effects, 114 Nw. U. L. Rev. (forthcoming 2020) (on file with the Columbia Law Review) [hereinafter Schwartz, Selection Effects] (describing an anonymous twenty-question survey asking about various aspects of respondents’ civil rights practice, as well as follow-up interviews with participating attorneys probing their views about qualified immunity and its effect on their case-selection decisions). —in conjunction with my studies of police indemnification practices and government budgeting for settlement and judgment costs, 23 See generally Joanna C. Schwartz, How Governments Pay: Lawsuits, Budgets, and Police Reform, 63 UCLA L. Rev. 1144 (2016) [hereinafter Schwartz, How Governments Pay] (examining the impact of lawsuit payouts on law enforcement agencies’ budgets); Schwartz, Police Indemnification, supra note 13 (examining the frequency with which law enforcement officers personally satisfy settlements and judgments entered against them). and other studies of district and circuit court qualified immunity decisions. 24 See Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L. Rev. 1, 27–51 (2015); Aaron L. Nielson & Christopher J. Walker, Strategic Immunity, 66 Emory L.J. 55, 95–117 (2016) [hereinafter, Nielson & Walker, Strategic Immunity]. These data offer valuable insights about the role qualified immunity currently plays, and also can be used credibly to imagine constitutional litigation in a world without qualified immunity.

Based upon this evidence, this Article offers five predictions about constitutional litigation after qualified immunity that differ markedly from conventional wisdom. First, there would be additional clarification of constitutional rights, but the scope of those rights would not dramatically change. Second, plaintiffs’ and defendants’ litigation success rates would remain relatively constant. Third, the overall cost and time associated with litigating constitutional claims would decrease. Fourth, more civil rights lawsuits would be filed, but other considerations would continue to discourage attorneys from filing insubstantial cases. Fifth, settlements and judgments would continue to have a limited impact on officers’ and municipalities’ dollars and decisionmaking.

If these predictions are correct, abolishing qualified immunity would clarify the law, 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 significantly change the scope of constitutional protections, dramatically increase the rate at which plaintiffs prevail, or alter government indemnification, budgeting, and risk-management practices that dampen the effects of lawsuits on officers’ and officials’ behavior. Doomsday scenarios imagined by some commentators—of courthouses flooded with meritless claims—would not come to pass. And constitutional litigation would still be subject to the criticism that it fails to hold government officials accountable when they exercise power irresponsibly.

These predictions should offer some comfort to the Justices on the Court who fear that doing away with qualified immunity could somehow jeopardize policing or “society as a whole.” 25 White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting City & County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 n.3 (2015)). But these predictions should also temper the optimism of the doctrine’s critics. Those who argue that qualified immunity allows government officials to act with impunity may believe that doing away with the doctrine will usher in a new age of government accountability. 26 See, e.g., supra notes 7–8. Although eliminating qualified immunity would increase access to the courts, clarity about the law, and transparency about the conduct of government officials, it would not fundamentally shift dynamics that make it difficult for plaintiffs to redress constitutional violations and deter official misconduct.

The remainder of this Article proceeds as follows. The first three Parts explore how the universe of civil rights cases that are currently being filed might proceed differently in the absence of qualified immunity: Part I predicts how courts’ interpretations of the scope of constitutional rights might change; Part II predicts how the dispositions of cases might change; and Part III predicts how the litigation of constitutional claims might change. Part IV considers how eliminating qualified immunity might impact the types and number of cases that are filed. Part V explores how eliminating qualified immunity might alter the deterrent effect of civil rights suits. Finally, the Conclusion summarizes these predictions and offers preliminary thoughts about how they might influence Supreme Court doctrine, scholarly commentary, and efforts to strengthen government accountability.