Backdoor Municipal Immunity
Yale Law Journal Forum (forthcoming)
20 Pages Posted: 10 May 2022 Last revised: 29 Jul 2022
Date Written: April 22, 2022
More than forty years ago, in Owen v. City of Independence, the Supreme Court held that local governments are not entitled to the protections of qualified immunity. Yet four federal circuits have concluded that granting an officer qualified immunity dooms a failure to train claim against their employer because local governments cannot train officers about law that is not “clearly established.” In this Essay, I argue that these circuits’ elision of qualified immunity and municipal liability—what I call backdoor municipal immunity—misunderstands the role court decisions actually play in police policies and training and undermines the deterrence and compensation rationales underpinning the Court’s decision in Owen.
Keywords: qualified immunity, municipal liability, civil rights litigation
JEL Classification: K40, K41, K42
Suggested Citation: Suggested Citation