Backdoor Municipal Immunity

Yale Law Journal Forum (forthcoming)

20 Pages Posted: 10 May 2022 Last revised: 29 Jul 2022

See all articles by Joanna C. Schwartz

Joanna C. Schwartz

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

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

Schwartz, Joanna C., Backdoor Municipal Immunity (April 22, 2022). Yale Law Journal Forum (forthcoming), Available at SSRN: or

Joanna C. Schwartz (Contact Author)

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

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
(310) 206-4032 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics