In this Article, I imagine a world without qualified immunity.
This may seem like a purely academic exercise. After all, the Supreme Court has been downright bullish about qualified immunity doctrine in recent years.
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.
The Court has repeatedly chastised lower courts for failing to use qualified immunity to shield government officials from damages liability.
And the Court’s recent decisions have further expanded qualified immunity’s reach.
But there have been growing calls by courts,
as well as by a number of commentators
and advocacy organizations across the political spectrum,
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.
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.
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.”
Justice Breyer concluded that qualified immunity was unnecessary for private defendants because they were likely to be indemnified by their employers
—a rationale that would apply to government defendants who almost never satisfy 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.”
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.
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.”
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.
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.
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.
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.
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
with surveys of almost 100 attorneys who entered appearances 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,
and other studies of district and circuit court qualified immunity decisions.
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.”
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.
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.