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