Qualified Immunity and Federalism All the Way Down

47 Pages Posted: 13 Apr 2020 Last revised: 6 Jan 2021

See all articles by Joanna C. Schwartz

Joanna C. Schwartz

University of California, Los Angeles (UCLA) - School of Law

Date Written: March 31, 2020


In Qualified Immunity and Federalism, Aaron Nielson and Chris Walker argue that the federalism dimensions of qualified immunity counsel the Supreme Court against reconsidering the doctrine. They argue, in essence, that: the Court’s qualified immunity doctrine is an extremely strong shield against civil rights damages actions; state and local governments have essentially guaranteed officers indemnification in reliance on that shield; eliminating qualified immunity would increase filings and payouts in civil rights cases so substantially that it would cause real upheaval in state and local governments; and, therefore, any adjustment to qualified immunity’s protections should come from the States or Congress—not the Court. I agree with Nielson and Walker that insufficient attention has been given to the federalism dimensions of qualified immunity, and applaud their work mapping states’ indemnification statutes. But truly appreciating the federalism dimensions of qualified immunity—and Section 1983 more generally—requires taking account of a whole range of federal, state, local, and non-governmental people, rules, and practices that do not make an appearance in Nielson and Walker’s article.

In this Essay, I offer an alternative account of the relationship between qualified immunity and federalism that takes federalism “all-the-way-down” to the local and non-governmental people, rules, and practices that shape, administer, and constrain Section 1983 doctrine on the ground. Viewing qualified immunity and indemnification statutes in the context of the civil rights ecosystems in which they operate makes clear that: qualified immunity is not the impenetrable shield to liability that Nielson and Walker suggest; state indemnification statutes were not crafted in reliance on qualified immunity; states’ and localities’ indemnification provisions do not guarantee indemnification but, instead, give officials significant discretion to craft indemnification policies and determine whether individual officers should be indemnified; and eliminating qualified immunity would impact the dynamics of civil rights litigation—more significantly in some parts of the country than others—but would not have ruinous consequences for state and local governments. Moreover, to whatever extent eliminating qualified immunity does impact state and local government operations, officials can use various tools at their disposal (including but not limited to indemnification policies and decisions) to restore balance in qualified immunity’s absence. This more nuanced story about the federalism dimensions of qualified immunity weakens Nielson and Walker’s reliance argument.

The Court has expressed willingness to reconsider qualified immunity in light of evidence that the doctrine does not achieve its intended policy goals. This Essay makes clear that reliance concerns should not prevent the Court from doing so.

Keywords: qualified immunity, stare decisis, federalism

JEL Classification: K13, K41

Suggested Citation

Schwartz, Joanna C., Qualified Immunity and Federalism All the Way Down (March 31, 2020). 109 Georgetown Law Journal 305 (2020), UCLA School of Law, Public Law Research Paper No. 20-07, Available at SSRN: https://ssrn.com/abstract=3565362

Joanna C. Schwartz (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
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