Qualified Immunity and Federalism
ARTICLES
Qualified Immunity and Federalism
AARON L. NIELSON* & CHRISTOPHER J. WALKER**
Qualified immunity is increasingly controversial. But the debate about
it is also surprisingly incomplete. For too long, both qualified immunity’s
critics and defenders have overlooked the doctrine’s federalism dimen-
sions. Yet federalism is at the core of qualified immunity in at least three
respects. First, many of the reasons the U.S. Supreme Court has prof-
fered for qualified immunity best sound in protecting the states’ sovereign
interests in recruiting competent officers and providing incentives for
those officers to faithfully enforce state law. Second, the states have
embraced indemnification policies premised on the existence of federal
qualified immunity. Third, working against the backdrop of federal quali-
fied immunity, state and local governments are engaged in robust policy
experimentation about the optimal balance between deterrence and over-
deterrence in their state law liability schemes, thus exhibiting the “labo-
ratories of democracy” benefits of federalism.
Drawing on findings from the most comprehensive review of state im-
munity and indemnification laws to date, this Article argues that these
overlooked federalism dimensions have important implications for the
future of qualified immunity. The observation, for instance, that the
Supreme Court’s qualified immunity cases are grounded in protecting
state sovereignty and have generated substantial reliance should matter
for statutory interpretation and stare decisis. Similarly, state and local
governments’ experimentation with how to best use state law to achieve
optimal deterrence—effectively eliminating or narrowing federal quali-
fied immunity through state liability and narrower state immunities—
further supports the notion that reform should be done legislatively, not
judicially. Qualified immunity’s federalism dimensions further counsel
that calls for the Supreme Court to revisit qualified immunity should be
redirected to Congress and state legislatures.
* Professor of Law, J. Reuben Clark Law School, Brigham Young University. © 2020, Aaron L.
Nielson & Christopher J. Walker.
** John W. Bricker Professor of Law, The Ohio State University Moritz College of Law. For helpful
comments on prior drafts, thanks to Will Baude, Randy Kozel, Jason Mazzone, Richard Re, Joanna
Schwartz, and Fred Smith, as well as participants at the National Association of Attorneys General 2019
State Solicitors General and Appellate Chiefs Conference and the University of Illinois Constitutional
Law Colloquium. For able research assistance, thanks to Nathan Coyne, Ruben Garza, Josh Jones, Sam
Lioi, Kevin Moscon, Megan Porter, and Brittney Welch. For expert assistance with the historical state
legislative materials, thanks to Moritz librarian Chris Galanos.
229
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
I. THE BASICS OF QUALIFIED IMMUNITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
A. THE EMERGENCE OF QUALIFIED IMMUNITY . . . . . . . . . . . . . . . . . . . . 238
B. RECENT CRITICISMS OF QUALIFIED IMMUNITY . . . . . . . . . . . . . . . . . . 246
C. PRIOR RESPONSES TO QUALIFIED IMMUNITY’S CRITICS . . . . . . . . . . . 248
II. FEDERALISM AND THE MEANING OF § 1983. . . . . . . . . . . . . . . . . . . . . 251
A. THE SIMPLE VIEW OF § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
B. WHAT THE SIMPLE VIEW OF § 1983 OVERLOOKS . . . . . . . . . . . . . . . . . 254
C. IMPLICATIONS: SUBSTANTIVE-FEDERALISM CANON . . . . . . . . . . . . . . 259
III. FEDERALISM AND STATE RELIANCE INTERESTS . . . . . . . . . . . . . . . . . . . . . . 263
A. INDIVIDUAL CAPACITY IN THEORY, OFFICIAL CAPACITY IN REALITY. 264
B. INDEMNIFICATION AS A MATTER OF STATE LAW . . . . . . . . . . . . . . . . 268
1. How State Laws Provide for Indemnification . . . . . . . . . 269
2. Statutory Exceptions to Indemnification . . . . . . . . . . . . . 272
3. Statutory Caps on Liability. . . . . . . . . . . . . . . . . . . . . . . 278
4. Qualified Immunity’s Influence on States’ Statutory
Indemnification Schemes . . . . . . . . . . . . . . . . . . . . . . . . 279
C. IMPLICATIONS: RELIANCE AND STATUTORY STARE DECISIS . . . . . . . . 282
D. A BRIEF REPLY TO SCHWARTZ ON RELIANCE INTERESTS . . . . . . . . . . 285
IV. STATE LAW LIABILITY AND LABORATORIES OF DEMOCRACY . . . . . . . . . . . 294
A. FEDERAL QUALIFIED IMMUNITY AS A FLOOR, NOT A CEILING . . . . . . 295
B. STATE LAW EXPERIMENTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
C. IMPLICATIONS: LABORATORIES OF DEMOCRACY . . . . . . . . . . . . . . . . 300
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302
230 THE GEORGETOWN LAW JOURNAL [Vol. 109:229
INTRODUCTION
Qualified immunity regularly shields government officials from monetary
liability when they violate others’ constitutional rights. Even if an innocent per-
son has suffered serious damages, the officer will not have to pay any money
unless the right was “clearly established” at the time of the violation.
1
And for a
right to be clearly established, “existing precedent must have placed the statutory
or constitutional question beyond debate” such that “every ‘reasonable official
would [have understood] that what he is doing violates that right.’”
2
In this way,
when it comes to officials who violate federal rights, qualified immunity shelters
“all but the plainly incompetent or those who knowingly violate the law.”
3
Accordingly, in light of qualified immunity, violations of federal civil rights regu-
larly go without a federal remedy.
4
As one might imagine from this Article’s opening paragraph, qualified im-
munity has long been controversial.
5
Yet the intensity of the criticism has
markedly increased in recent years. Indeed, Justices Clarence Thomas and
Sonia Sotomayor—an unlikely duo—have urged the Court to revisit qualified
immunity.
6
And in the lower courts, Judge Don Willett (appointed by
President Trump) and the late Judge Stephen Reinhardt (appointed by
President Carter)—perhaps an even more unlikely duo—have bemoaned that
qualified immunity lets “untold constitutional violations slip” through the
cracks
7
and imposes “drastic new restrictions on finding civil liability.”
8
1. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
2. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (alteration in original) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).
3. Id. at 743 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
4. See, e.g., Camreta v. Greene, 563 U.S. 692, 697–98 (2011) (explaining that the lower court found a
constitutional violation but nonetheless denied relief because of qualified immunity); Safford Unified
Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 368 (2009) (holding that strip-searching students can be
unconstitutional but awarding immunity to the government official); Aaron L. Nielson & Christopher J.
Walker, The New Qualified Immunity, 89 S. CAL. L. REV. 1, 33–38 (2015) (providing data).
5. See, e.g., David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial
Activism and the Restriction of Constitutional Rights, 138 U. PA. L. REV. 23, 77 (1989) (“Requiring a
plaintiff to demonstrate that the law was clearly established . . . immunizes serious governmental
misconduct.”); Erwin Chemerinsky, How the Supreme Court Protects Bad Cops, N.Y. TIMES (Aug. 26,
2014), https://www.nytimes.com/2014/08/27/opinion/how-the-supreme-court-protects-bad-cops.html (arguing
that qualified immunity is unfair and dangerous).
6. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting) (arguing that
the Supreme Court’s approach to qualified immunity “tells officers that they can shoot first and think
later”); Ziglar v. Abbasi, 137 S. Ct. 1843, 1871 (2017) (Thomas, J., concurring in part and concurring in
the judgment) (“In an appropriate case, we should reconsider our qualified immunity jurisprudence.”);
see also JOHN PAUL STEVENS, SIX AMENDMENTS: HOW AND WHY WE SHOULD CHANGE THE
CONSTITUTION 106 (2014) (urging a constitutional amendment barring a “state officer [from receiving]
an immunity from liability for violating any act of Congress, or any provision of th[e] Constitution”).
7. Cole v. Carson, 935 F.3d 444, 471 (5th Cir. 2019) (Willett, J., dissenting); see also Zadeh v.
Robinson, 928 F.3d 457, 479 (5th Cir. 2019) (Willett, J., dissenting in part) (arguing that “qualified
immunity smacks of unqualified impunity”).
8. Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The
Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and
Some Particularly Unfortunate Consequences, 113 MICH. L. REV. 1219, 1222 (2015).
2020] QUALIFIED IMMUNITY AND FEDERALISM 231
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