Mimesis Law
24 September 2020

Keep Qualified Immunity…For Now

July 1, 2016 (Mimesis Law) – The discussion over the Supreme Court’s decision in Utah v. Strieff is still hot. But some of the discussion has moved away from the merits of Justice Thomas’ opinion. Now, some people are again discussing civil remedies for Fourth Amendment violations. This was compounded by the recent acquittals of officers involved in the death of Freddie Grey.

Senior Circuit Judge Jon Newman led the discussion with his op-ed:

The acquittal Thursday of another Baltimore police officer charged in the death of Freddie Gray, like the acquittal 25 years ago of the Los Angeles officers who beat Rodney King, reveals the inadequacy of the criminal-law remedy. Suing the police for money under a strengthened federal civil rights law would be a better response to police misconduct.

Right now, however, federal law makes it more difficult to sue a police officer for denying a citizen his constitutional rights than for injuring him by ordinary negligence. If an officer negligently drives his car and injures a citizen, the victim can win money just by proving negligence, and the city that employs the officer pays whatever the jury awards. A citizen will go through the courts and abide by the rules of whichever state they reside in. E.g. a resident of Illinois will look for an auto accident lawyer il and put their case forward to them.

That, unfortunately, is true. The big-picture reason for this is sovereign immunity, which basically means that the king can only be sued with his consent. Of course, the 1776 Brexit ended the royal rule in the U.S. Yet, the idea of sovereign immunity persisted. Constitutional law titan and the-man-who-never-saw-a-case-he-couldn’t-memorize, Erwin Chemerinksy, summed it up like this:

Sovereign immunity is anachronistic relic and the entire doctrine should be eliminated from American law.

This idea of immunity is not contained to suits directly against the state. Rather, it spills over onto the agents of the government when discharging their duties. This means either the agent of the government is absolutely immune, such as a judge, or the agent has qualified immunity, like a police officer. Although, due to the American experience in the Reconstruction South, even governmental sovereign immunity is slightly modified when a constitutional deprivation is alleged.

Fundamentally, absolute immunity means that the agent can never be sued for misconduct related to the discharge of the duties of their office. So, a judge can wrongfully approve a petition for sterilization without fear of suit, but this isn’t a double-0 license to kill. The judge can still be charged with bribery or other crimes. Thus, a judge wrongfully sterilizing someone without a court order is completely different. Yes, it’s a rather subtle distinction. So, it is a good thing we lawyers are here, because who else would be able to tell the rest what the difference is between the two.

In the case of qualified immunity, the idea is basically that certain factual circumstances can divest the officer of immunity. Regardless of the nuisances of this doctrine, the Supreme Court expressly noted that the purpose of the doctrine was to be, at least in part, a screening mechanism:

Insubstantial lawsuits can be quickly terminated by federal courts alert to the possibilities of artful pleading. Unless the complaint states a compensable claim for relief under the Federal Constitution, it should not survive a motion to dismiss.

In some ways, the screening mechanism is opposite of the procedural screening done under AEDPA. At the pleading stage, qualified immunity often peeks over to the facts and, in large measure, determines the severity of the alleged misconduct, dismissing the less severe conduct, such as mere negligence. On the other hand, AEDPA leads to disposing of many claims without regard to the merit. Although recently the Supreme Court has begun to throw up procedural hurdles in civil rights actions too. Still, like AEDPA, it’s successful at screening out lawsuits early.

In this light Judge Newman makes three recommendations:

But Congress needs to strengthen Section 1983 in three ways. First, the defense of qualified immunity should be abolished. If an officer violates the Constitution, the victim should win the lawsuit, just as he or she wins when hit by an officer negligently driving his vehicle.

Second, the city (or county or state) that employs the officer should pay a damage award, just as a governmental employer pays for injury caused by an officer’s negligent driving. A jury would be more willing to rule against a city than to make a police officer pay out of his own pocket.

Third, the local U.S. attorney, not just the victim of the unconstitutional conduct, should be authorized to bring the suit. When federal law has been violated, a federal lawyer should act on behalf of the victim. A jury is more likely to take the matter seriously if a U.S. attorney sues than when the victim is the plaintiff, who can sometimes be perceived as a not very respectable member of the community.

Addressing his third suggestion first, it’s not a terrible idea on the face of it, but the reality of DOJ civil rights lawsuits suggest that this is probably wishful thinking. The second suggestion fails to recognize that insurers now are the ones really paying out the judgments, regardless of whether the state agency and/or the agents are found liable. While this has led some to suggest that insurers are the key to reform, insurers care about the pool—not the individual insured. So long as civil rights actions are generally unlikely to succeed or succeed big, the pool is safe. Thus, insurers won’t step in to change behavior until their money is at stake.

Finally, that brings us back to qualified immunity. If you get rid of qualified immunity, then you’ll simply have to create another screening mechanism. Governments are usually well-insured, often well-funded, typically risk adverse, and can perpetually refill the treasury through taxes—so long as taxpayers stay put, anyhow. This makes them tempting defendants, as impecunious defendants usually are not sued. On top of that, a defendant who prevails in a civil rights action usually gets attorney’s fees awarded. Mostly, but for qualified immunity, it’s a bonanza for plaintiff’s lawyers.

Plus, we’re told, making lawsuits easier would bring about a policing apocalypse:

If you want to see active policing plummet, tell law enforcement officers they will be civilly liable for conduct which no reasonable person could have foreseen was a violation of any rights!

Here’s an idea. Let’s make Federal Appellate Court judges civilly liable for every decision they have reversed by the Supreme Court. Unlike cops, who have to make real time decisions affecting legal rights, often under life-threatening circumstances, judges have the luxury of time, law clerks and quiet, safe, well-appointed chambers to make sure their legal decisions are correct. Why shouldn’t they be accountable for rendering legal opinions the Supreme Court determines are wrong?

The answer is, unlike cops, judges (like Newman) have, “…absolute immunity from Section 1983 damage actions for their ‘judicial’ acts.” It’s disingenuous of Newman to advocate taking away “qualified” immunity from the police when the U.S. Supreme Court has already given “absolute” immunity to him.

Law enforcement unions and associations such as ALADS must speak out to protect cops from malicious, politically motivated prosecutions and inflammatory anti-cop rhetoric which is slanted, inaccurate or just lies. Our strength comes from our numbers and our collective ability to band together to support each other and the rightness of the job all of us do to protect the public.

Bill Otis agrees. Relatedly, Ken Scheidegger has some interesting thoughts on Judge Newman’s proposal, including suggesting that getting rid of qualified immunity in excessive force actions would be a bad idea because the defendant probably deserved it. I remember the “bitch-deserved-it defense” in my torts class. Doesn’t everyone? The majesty of the law. But of particular interest was Ken’s assertion that constitutional violations should be difficult to prove because they’re more serious.

Ken is judging “seriousness” from the point of view of the officer, the person doing the depriving, rather than the defendant, the person who was deprived. If either the zoning inspector or the police officer negligently deprive you of your constitutional rights, haven’t you still been harmed? Yes is the answer. It’s simply a policy decision to ignore low-intensity deprivations under section 1983.

What makes this issue particularly intractable is everybody’s at least partially right. Ignoring a raft of constitutional deprivations is unfair and, perhaps, even un-American. And wrongdoers should be held to account for their misdeeds. Yet, even in regular negligence cases, we give professionals, like doctors and lawyers, a different standard of care. So, it’s not ridiculous to give certain governmental agents like police officers a different, more forgiving standard of care.

Plus, qualified immunity, along with other mechanisms, prevents and screens out a lot of frivolous litigation. And that cost of frivolous litigation otherwise would be socialized by taxpayers. Plus, in highly variable and discretionary jobs like policing, there is nearly daily opportunity for negligence to occur. So, under such a lower standard of culpability, departments might be essentially uninsurable or unable to effectively patrol.

Contrary to how it may appear to some, a madman didn’t appear one day and set-up the doctrine of qualified immunity. It’s there for reasons that plenty of courts deemed to be important reasons. Judge Newman’s suggestion to tear the fence down because he fails to see the value was made without due consideration. Qualified immunity and its related doctrines might not be the best solution of all best possible worlds, but it is a solution. Let’s figure out a better one before tearing down the old one.

12 Comments on this post.

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  • Brad
    1 July 2016 at 11:16 am - Reply

    Respectfully disagree. Three main reasons:

    1. I do want to see “pro-active policing” plummet. Even worse than the expanded scale of the brutality that modern pro-active policing entails is the dishonesty that it causes. “Pro-active policing” is a pretty name that hides a lot of ugly.

    2. Lawsuits won’t go up because police will start settling out of court. Right now if a policeman tosses your car and finds no drugs, he won’t compensate you for your lost time, mild shame and discomfort. With no qi, he is likely to be instructed to offer you $500 in exchange for a consent not to sue. By offering small payments up front the police can spare themselves big lawsuits later. However, right now qi effectively prevents this from happening.

    3. There will be incentives to hire smarter police officers with better judgement than under the incentive structure that exists right now.

  • Raccoon Strait
    1 July 2016 at 11:17 am - Reply

    From my non-lawyer point of view, police officers should NOT have a more forgiving standard of care. Unlike the Supreme Court, I believe that police officers should KNOW the laws they enforce and be held liable for not knowing. Too many laws, take it up with the legislature’s inane impetus to ‘do something’. This is not the beginning of the slippery slope, but it is a significant addition to the degree of that slope.

    With regard to immunity, any kind of immunity, there should be a very high burden of proof, like beyond a reasonable doubt that immunity should be considered, let alone deserved. Police officers should have to prove any allegation they make, and their word should be as suspect as any other persons, defendant, witness, anyone. Too high, you say? Well, getting shot for moving your hands near your waist is too high a price for incompetence. Claiming fear for their life from a cell phone wielding suspect is too ridiculous to maintain credulity. Testimony that contradicts video evidence should be considered actionable perjury, when it goes beyond mere point of view. There’s more…but for now.

    As for the never empty bucket of the public trough, I say hold the police unions accountable for the liabilities created by their members (rather than the government), at least until we can remove the travesty of public employee unions altogether, and then hold the individuals accountable for their actions. If we are going to call it a profession, lets set some professional standards, and failing in your profession should not be easily excusable.

    Rant over.

  • Richard G. Kopf
    1 July 2016 at 1:13 pm - Reply


    Thanks for a very thoughtful post. You have convincingly demonstrated that Judge Newman’s op-ed is both poorly written and poorly reasoned.

    All the best.


    • shg
      1 July 2016 at 2:04 pm - Reply

      There goes that invite for lunch at the Second.

      • Richard G. Kopf
        2 July 2016 at 9:11 am - Reply


        Damn! You’re right.

        And I was so hoping to bask in the reflected glory of a lunch in the Second Circuit Courthouse. Being a New Yorker, you know, of course, that it is adorned with a pyramidal tower, pitched steeply, and made of terra cotta, with a gold leaf, and a small open lantern, also gold-glazed terra cotta, at the top.

        I am sure it is a wonderful place to think great thoughts while partaking of lunch with a fine imported wine and a Baked Dijon Salmon. Exactly the kinda place where you learn all about cops and the streets of Baltimore.

        All the best.

        Rich Kopf

        • shg
          2 July 2016 at 9:46 am - Reply

          I wouldn’t pass up dinner at Le Bernardin or, better yet, Le Cirque’s (Jacque Pepin’s) potato encrusted sea bass. You won’t find it in Omaha.

          • Richard G. Kopf
            2 July 2016 at 10:51 am -


            They wouldn’t let me in with my faux Jerry Spence buckskin fringed jacket. All the best.


          • shg
            2 July 2016 at 12:01 pm -

            You got one too? I gave mine away, but I kept his hat.

  • Peter Orlowicz
    1 July 2016 at 2:25 pm - Reply

    What about returning courts to the strict two-step sequential process required in Saucier v. Katz, rather than allowing courts to bypass the question of whether a violation actually occurred by deciding even if there was a violation, the law was not clearly established? The problem with the approach post-Pearson v. Callahan, it seems to me, is that courts can deliberately avoid clarifying the law in such a way as to allow police officers to repeatedly commit the same actions over lengthy periods of time, under the guise of qualified immunity, without any establishment of what the law requires or prohibits. The Court in Pearson even “continue[d] to recognize that it is often beneficial” to follow Saucier’s procedure and that answering the questions in order “promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.” Maybe it’s time to put more emphasis on holding officers accountable and a little less emphasis on matters of judicial economy.

  • jdgalt
    1 July 2016 at 7:13 pm - Reply

    It’s there for reasons that plenty of self-serving judges deemed to be important reasons.

    Fixed that for you.

  • ken
    1 July 2016 at 8:01 pm - Reply

    King’s rant is little more than politics to keep the cop vote for next election. Additionally a very important cog in the incarceration pipeline, namely the accountability of prosecutors as well as the worm standard for ineffective defense.
    But the judiciary could change much of the evils of the injustice system, but refuse to do so even when covered by absolute immunity. Keep judicial, and prosecutor absolute immunity only when the attack for abuse comes from the government, but remove it when originating from the weaker party in litigation.

  • Dave Thompson
    12 July 2016 at 8:15 pm - Reply

    Qualified immunity does nothing to screen out “frivolous” litigation.

    Qualified immunity only makes a difference in the outcome of a case when the officer actually violated the plaintiff’s rights. In Qualified Immunity cases, the officer is freed from liability — despite having violated the plaintiff’s rights — because there was some ambiguity (either in the law or in the facts known to the officer) that made it reasonable for the officer to believe that he was not violating the plaintiff’s rights. A case in which qualified immunity is determinative of the outcome is therefore NOT a frivolous case. It’s a case where the defendant wins even though the plaintiff was RIGHT.

    [Yes, I know that courts are no longer required to determine whether the plaintiff’s rights were violated before determining whether ambiguity existed sufficient to bestow qualified immunity, but QI is only *determinative* of the final result if: 1) the case would not be dismissed on the merits without QI, and 2) the case can be dismissed on QI. A case that is truly frivolous could and should be dismissed as such without any reference to QI (i.e., there should be no rulings that say “The defendant is entitled to Qualified Immunity because he did not use force on the plaintiff.”) Using QI to dismiss a frivolous case distorts both the law of QI and the underlying substantive law.]

    There are already numerous hurdles in between a plaintiff and a successful lawsuit. First, police routinely lie in performing their duties and are almost never called out on it unless there is video. If you tell police that a Terry stop will be upheld if they allege that the person engaged in “furtive movements” (whatever that means), guess what the police will start writing down in their memo books? (“I did observe the individual engage in furtive movements while looking in all directions….”).

    Second, people believe police more than they believe civilians (wrongly, but it happens). A he-said-she-said lawsuit where one side is a police officer is already at a disadvantage, before the first paper is filed.

    Third, many jurisdictions have notice of claim requirements with short timelines (in NYC it is 90 days). If you don’t file a properly-worded claim within the short window, you lose your state-law claims.

    Fourth, the Supreme Court in its infinite wisdom has ruled that you can’t directly sue a municipality under section 1983 unless you prove a city-wide pattern of wrongdoing. The information required to plead such a pattern of wrongdoing is in the city’s possession, and is kept secret under the shield of “law enforcement privilege” among other privileges. What is not privileged is still difficult to obtain via FOIA-type laws.

    Fifth, Twombly/Iqbal pleading standards require detail that may be (partially or entirely) in the hands of the defendants. The same standard invites the judge to use “plausibility” as a tool to dismiss cases the judge *personally* finds distasteful or contrary to his worldview. (“Police discriminate against black people? Not plausible!”).

    Sixth, Courts are extremely reluctant to sanction municipal non-compliance with discovery. A municipal defendant can withhold evidence almost at will, and get away with it.

    Seventh, Courts are extremely reluctant to enter summary judgment against a municipality. If the plaintiff is entitled to judgment as a matter of law, what they usually get is trial by jury.

    Eighth, juries like cops and don’t like “criminals.” Police fluency in perjury looks like truthfulness to a jury.

    All told, there are plenty of disincentives to a plaintiff who wants to sue the police, and to the attorneys who would represent them. Show me a rich civil rights attorney — one who is rich because of civil right litigation, not one who does tort litigation and also does civil rights. Such people are very, very few. Most senior NYPD make more yearly than most members of the civil rights bar who sue them. Every year there are a few cases which are able to leap these hurdles, and which also have damages sufficient to result in a real payout (to plaintiff, to attorney). But the Eric Garner litigation (man murdered by police on video) still hasn’t settled. And harm inflicted by police is compensated at a steep discount. A strip search by police is compensated at about 1/3 the rate of a strip search by a Macy’s guard — remembering that if it is being compensated at all, it was found to be unlawful. A (typical) dead arrestee probably has less future earnings to compensate than a (typical) dead accident victim.

    So we don’t need a screening function. We need a streamlining function to get the good cases decided quicker, and the bad cases tossed quicker. We need to treat municipal defendants and police like every other litigant. The courts are required to do this, but don’t. They courts need to start doing their job in this respect.

    In reality, police never pay judgments against them out of their own pocket. Their municipality or their union indemnifies them. So police need to stop whining about being sued for their misconduct. And stop committing misconduct.