But these protesters and bystanders may not be able to recover damages in civil suits against officers who used excessive force, because a legal doctrine known as “qualified immunity” offers an unjustifiably broad shield for government officials. The same doctrine could close the courthouse doors to Floyd’s family, if they sue Minnesota officer Derek Chauvin, who has been charged with third-degree murder. Politicians and advocacy groups alike have called for curtailing this legal protection: Rep. Justin Amash (L-Mich) and Sen. Cory Booker (D-N.J.) have announced that they will introduce bills to eliminate or reform qualified immunity. And the Supreme Court is weighing whether to hear several cases that ask it to reconsider or do away with the doctrine.
In this extraordinary time, ending qualified immunity would be one of the most powerful first steps that the court or Congress could take to improve police accountability.
Qualified immunity shields government officials from liability for damages — even if they have violated the Constitution — so long as they did not violate “clearly established” law. According to the Supreme Court, the law is “clearly established” only when a prior court has held that an officer violated the Constitution under virtually identical circumstances. This turns out to be a tough standard to meet. In one case the Supreme Court is deciding whether to hear, Nashville police officers released their dog on Alexander Baxter, a burglary suspect, who had surrendered and was sitting with his hands raised. A prior decision in the 6th Circuit had held that officers violated the Fourth Amendment when they released a police dog on a suspect who had surrendered by lying down. But the appeals court ruled that this precedent did not “clearly establish” that it was unconstitutional to release a police dog on a surrendering suspect sitting with his arms raised.
The hairsplitting regularly reaches absurd levels. In another case pending before the Supreme Court, the 8th Circuit granted qualified immunity to an officer who wrapped a small woman in a bear hug and then slammed her to the ground, breaking her collarbone and knocking her unconscious. Although earlier cases had made clear that an officer cannot use force against a nonviolent person simply because they are walking away, the appeals court concluded that the law was not clearly established because in none of those cases did a “deputy … use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.”
To avoid having their lawsuits dismissed, this week’s victims of police violence — and Floyd’s family — would have to find cases in which earlier defendants were found to have violated the law in precisely the same way as the more recent cases.
What is the possible justification for a defense that leaves plaintiffs without remedy for egregious constitutional violations? The Supreme Court has said that qualified immunity is necessary to give officers “breathing room to make reasonable but mistaken judgments.” Without qualified immunity, the court fears, the threat of personal liability will make police officers overly timid on the street and will discourage people from entering public service.
Even if one accepts that government officials and law enforcement officers deserve this type of “breathing room,” the “clearly established” standard is poorly designed to achieve that goal. But my research shows that officers have little to fear in the way of financial liability and that the court’s worries are overblown.
When plaintiffs recover money in police misconduct lawsuits, officers rarely pay anything from their own pockets. I studied police misconduct settlements and judgments in 81 jurisdictions across the country, between 2006 and 2011, and found that officers paid just 0.02 percent of the over $730 million that plaintiffs received. Instead, local governments indemnify their officers — meaning that they agree to pay for any damages awarded — and the money is paid from local government coffers. In subsequent research, I found that, even when police departments refuse to indemnify their officers, the officers rarely pay. Plaintiffs know most officers do not have the financial resources to satisfy large awards, and so they find other ways to recover damages — from other defendants or from the municipality. Or they abandon their claims. That pattern would probably continue if qualified immunity were abolished. Police officers simply don’t have deep enough pockets to make it worth most plaintiffs’ while to try to recover against them personally.
The Supreme Court has also described qualified immunity as necessary to protect officers from the burdens and distractions of defending themselves in “insubstantial” cases, suggesting that frivolous cases would flood the courts if qualified immunity were abolished. But there are plenty of other ways to weed weak civil rights cases out of court. When I studied almost 1,200 police misconduct cases filed nationwide, I found that most cases dismissed without payment to the plaintiff failed for reasons other than qualified immunity. Those other barriers to relief — including the court’s existing standards for proving excessive force and unlawful searches, which give great deference to police; and unsympathetic juries that rule against civil rights plaintiffs or award very little — would continue to exist if qualified immunity were abolished. And these barriers would continue to discourage plaintiff’s attorneys from accepting weak civil rights cases, especially because these attorneys are paid only if their clients recover money.
Even if qualified immunity is abolished, it will remain difficult for civil plaintiffs to win in court. But abolishing qualified immunity is still crucial. Ending qualified immunity would mean an end to court opinions that send the message that the government can violate people’s rights with impunity. Doing so would also shift the focus in these cases from an arcane exercise in finding a prior court decision with identical facts and, instead, draw attention to whether government officials have exceeded their constitutional authority.
Justice Sonia Sotomayor has written that the court’s qualified immunity decisions send an alarming signal to police officers across the country — “shoot first and think later.” Events of the past week have driven home that courts need to stop sending that signal.