After Qualified Immunity
80 Pages Posted: 6 Feb 2019 Last revised: 1 Apr 2020
Date Written: February 6, 2019
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, Justice Thomas recently wrote that, “[i]n an appropriate case we should reconsider 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.
In this Article, I offer 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 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 my 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 alter government practices that 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.
Keywords: qualified immunity, Supreme Court, civil rights, police
JEL Classification: K42
Suggested Citation: Suggested Citation