How Qualified Immunity Fails

By Schwartz, Joanna C. | The Yale Law Journal, October 2017 | Go to article overview

How Qualified Immunity Fails


Schwartz, Joanna C., The Yale Law Journal


INTRODUCTION

The United States Supreme Court appears to be on a mission to curb civil rights lawsuits against law enforcement officers, and appears to believe qualified immunity is the means of achieving its goal. The Supreme Court has long described qualified immunity doctrine as robust--protecting "all but the plainly incompetent or those who knowingly violate the law." (1) And the Court's most recent qualified immunity decisions have broadened the scope of the doctrine even further. (2) The Court has also granted a rash of petitions for certiorari in cases in which lower courts denied qualified immunity to law enforcement officers, reversing or vacating every one. (3) In these decisions, the Supreme Court has scolded lower courts for applying qualified immunity doctrine in a manner that is too favorable to plaintiffs and thus ignores the "importance of qualified immunity 'to society as a whole.'" (4) As Noah Feldman has observed, the Supreme Court's recent qualified immunity decisions have sent a clear message to lower courts: "The Supreme Court wants fewer lawsuits against police to go forward." (5) And the Court believes that qualified immunity doctrine is the way to keep the doors to the courthouse closed.

Among legal scholars and other commentators, there is a widespread belief that the Supreme Court is succeeding in its efforts. Scholars report that qualified immunity motions are raised frequently by defendants, are granted frequently by courts, and often result in the dismissal of cases. (6) As Ninth Circuit Judge Stephen Reinhardt has written, the Supreme Court's recent qualified immunity decisions have "created such powerful shields for law enforcement that people whose rights are violated, even in egregious ways, often lack any means of enforcing those rights." (7) Three of the foremost experts on Section 1983 litigation--Karen Blum, Erwin Chemerinsky, and Martin Schwartz--have concluded that recent developments in qualified immunity doctrine leave "not much Hope left for plaintiffs." (8)

The widespread assumption that qualified immunity provides powerful protection for government officials belies how little we know about the role qualified immunity plays in the litigation of constitutional claims. (9) The scant evidence available on this topic points in opposite directions. Studies of qualitied immunity decisions have found that qualified immunity motions are infrequently denied, suggesting that the doctrine plays a controlling role in the resolution of many Section 1983 cases. (10) But when Alexander Reinert studied the dockets in Bivens actions--constitutional cases brought against federal actors--he found that grants of qualified immunity led to just 2% of case dismissals over a three-year period. (11) If qualified immunity protects all but the "plainly incompetent or those who knowingly violate the law," (12) and qualified immunity motions are infrequently denied, how can qualified immunity be the basis for dismissal of such a small percentage of cases?

More than descriptive accuracy is at stake in answering this question--it goes to a core justification for qualified immunity's existence. Although the concept of qualified immunity was drawn from defenses existing in the common law at the time 42 U.S.C. [section] 1983 was enacted, the Court has made clear that the contours of qualified immunity's protections are shaped not by the common law but instead by policy considerations. (13) In particular, the Court seeks to balance "two important interests--the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." (14) Since the doctrine's inception, the Court has repeatedly stated that financial liability is one of the burdens qualified immunity is intended to protect against. (15) Yet, as I showed in a prior study, law enforcement defendants are almost always indemnified and thus rarely pay anything towards settlements and judgments entered against them. …

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