Backdoor Municipal Immunity

Abstract

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