The Case Against Qualified Immunity

Joanna C. Schwartz*

In many ways, qualified immunity’s shield against government damages liability is stronger than ever. The United States Supreme Court has made clear that qualified immunity should protect “all but the plainly incompetent or those who knowingly violate the law.”¹ The Court dedicates an outsized portion of its docket to reviewing—and virtually always reversing—denials of qualified immunity in the lower courts.² In these decisions, the Court regularly chides courts for denying qualified immunity motions given the importance of the doctrine “to society as a whole.”³ And the Court’s recent qualified immunity decisions make it seem nearly impossible to find clearly established law that would defeat the defense.⁴

But there are also cracks in qualified immunity’s armor. Most recently, in his concurrence in Ziglar v. Abbasi, Justice Thomas criticized the doctrine for bearing little resemblance to the common law at the time the Civil Rights Act of 1871 became law, and for being defined by “precisely the sort of ‘freewheeling policy choice[s]’ that we have previously disclaimed the power to make.”⁵ Indeed, Justice Thomas recommended that “[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence.”⁶ Much attention has been paid to Justice Thomas’s call to reconsider qualified immunity doctrine in Ziglar.⁷ But Justices have been raising questions about qualified immunity for decades. In 1997, Justice Breyer suggested that defendants should not be protected by qualified immunity if they are certain to be shielded from financial liability by their employer.⁸ In 1992, Justice Kennedy indicated that qualified immunity doctrine might be unnecessary to shield government defendants from trial given the Court’s summary judgment jurisprudence.⁹ In 2015, and again in 2018, Justice Sotomayor expressed concern that the Court’s qualified immunity decisions contribute to a culture of police violence.¹⁰

If the Court did find an appropriate case to reconsider qualified immunity, and took seriously available evidence about qualified immunity’s historical precedents and current operation, the Court could not justify the continued existence of the doctrine in its current form. Ample evidence undermines the purported common-law foundations for qualified immunity.¹¹ Research examining contemporary civil rights litigation against state and local law enforcement shows that qualified immunity also fails to achieve its intended policy aims. Qualified immunity does not shield individual officers from financial liability.¹² It almost never shields government officials from costs and burdens associated with discovery and trial in filed cases.¹³ And it appears unnecessary to encourage vigorous enforcement of the law.¹⁴

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© 2018 Joanna C. Schwartz. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, UCLA School of Law. Thanks to participants in the Courts and Legal Process Workshop at Columbia Law School, and to William Baude, Karen Blum, Sam Bray, Alan Chen, Sharon Dolovich, Richard Fallon, John Jeffries, Richard Re, Alexander Reinert, Dan Schwartz, Matthew Shapiro, and Stephen Yeazell for thoughtful comments on earlier drafts. Thanks also to Aaron Nielson and Christopher Walker for sharing their data on circuit court qualified immunity decisions. For research assistance, many thanks to David Koller and David Schmutzer, and to the expert research staff at UCLA’s Hugh & Hazel Darling Law Library. Finally, thanks to Notre Dame Law Review for inviting me to contribute to their annual Federal Courts, Practice & Procedure issue.

1 Malley v. Briggs, 475 U.S. 335, 341 (1986).

2 See William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45, 82 (2018) (observing that the Supreme Court has decided thirty qualified immunity cases since 1982, and has found that defendants violated clearly established law in just two of those cases). The Court’s recent decisions in District of Columbia v. Wesby, 138 S. Ct. 577 (2018), and Kisela v. Hughes, 138 S. Ct. 1148 (2018), puts the count at thirty-two. Twenty of those decisions have been issued within the past ten years. If one includes cases in which qualified immunity is invoked less directly, the count would be higher. See, e.g., Tolan v. Cotton, 134 S. Ct. 1861 (2014); Scott v. Harris, 550 U.S. 372 (2007).

3 See, e.g., White v. Pauly, 137 S. Ct. 548, 551–52 (2017) (“In the last five years, this Court has issued a number of opinions reversing federal courts in qualified immunity cases. The Court has found this necessary both because qualified immunity is important to ‘society as a whole,’ and because as ‘an immunity from suit,’ qualified immunity ‘is effectively lost if a case is erroneously permitted to go to trial.’ Today it is again necessary to reiterate the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’” (first quoting City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 n.3 (2015); then quoting Pearson v. Callahan, 555 U.S. 233, 231 (2009))); Sheehan, 135 S. Ct. at 1774 n.3 (“Because of the importance of qualified immunity ‘to society as a whole,’ the Court often corrects lower courts when they wrongly subject individual officers to liability.” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982))).

4 See infra notes 109–12 and accompanying text (describing the Court’s recent qualified immunity decisions).

5 Ziglar v. Abbasi, 137 S. Ct. 1843, 1871 (2017) (Thomas, J., concurring) (alteration in original) (quoting Rehberg v. Paulk, 566 U.S. 356, 363 (2012)).

6 Id. at 1872.

7 See, e.g., Will Baude, “In an Appropriate Case, We Should Reconsider Our Qualified Immunity Jurisprudence,” Wash. Post: The Volokh Conspiracy (June 19, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/19/in-an-appropriate-case-we-should-reconsider-our-qualified-immunity-jurisprudence/?utm_term=.18443bf27fbd (describing Justice Thomas’s concurrence as offering “some promising skepticism . . . about the doctrine of qualified immunity”); Matt Ford, American Policing Goes to the Supreme Court, Atlantic (Oct. 1, 2017), https://www.theatlantic.com/politics/archive/2017/10/ supreme-court-carpenter-cases/541524/ (describing Justice Thomas’s concurrence as “a glimmer of light . . . for qualified-immunity critics”); Perry Grossman, Clarence Thomas to the Rescue?, Slate (June 21, 2017), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/06/in_ziglar_v_abbasi_clarence_thomas_signals_his_support_for_civil_rights .html (describing Justice Thomas’s concurrence as “the most direct call for change [of qualified immunity doctrine] to date”).

8 See Richardson v. McKnight, 521 U.S. 399, 411 (1997) (concluding that private prison guards are not entitled to qualified immunity in part because “insurance increases the likelihood of employee indemnification and to that extent reduces the employment-discouraging fear of unwarranted liability potential applicants face”).

9 See Wyatt v. Cole, 504 U.S. 158, 171 (1992) (Kennedy, J., concurring) (“Harlow was decided at a time when the standards applicable to summary judgment made it difficult for a defendant to secure summary judgment regarding a factual question such as subjective intent, even when the plaintiff bore the burden of proof on the question; and in Harlow we relied on that fact in adopting an objective standard for qualified immunity. However, subsequent clarifications to summary-judgment law have alleviated that problem . . . .” (citations omitted)).

10 See Mullenix v. Luna, 136 S. Ct. 305, 316 (2015) (Sotomayor, J., dissenting) (“When Mullenix confronted his superior officer after the shooting, his first words were, ‘How’s that for proactive?’ . . . [T]he comment seems to me revealing of the culture this Court’s decision supports when it calls it reasonable—or even reasonably reasonable—to use deadly force for no discernible gain and over a supervisor’s express order to ‘stand by.’ By sanctioning a ‘shoot first, think later’ approach to policing, the Court renders the protections of the Fourth Amendment hollow.”); see also Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting) (arguing that the Supreme Court’s decision reversing the Ninth Circuit’s denial of qualified immunity for an officer who shot a woman holding a knife “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished”).

11 See infra Part I for further discussion of this argument.

12 See infra Section II.A for further discussion of this argument.

13 See infra Section II.B for further discussion of this argument.

14 See infra Section II.C for further discussion of this argument.