Qualified Immunity and Federalism All the Way Down

• Published date: 01 December 2020
• Date: 01 December 2020

Qualif‌ied Immunity and Federalism All the Way

Down

JOANNA C. SCHWARTZ*

In Qualif‌ied Immunity and Federalism, Aaron Nielson and Chris

Walker argue that the federalism dimensions of qualif‌ied immunity coun-

sel the Supreme Court against reconsidering the doctrine. They argue, in

essence, that (1) the Court’s qualif‌ied immunity doctrine is a powerful

shield against civil rights actions seeking damages; (2) state and local

governments have essentially guaranteed indemnif‌ication to off‌icers in

reliance on that shield; (3) eliminating qualif‌ied immunity would

increase f‌ilings and payouts in civil rights cases so signif‌icantly that it

would cause real upheaval in state and local governments; and (4) any

adjustment to qualif‌ied immunity’s protections, therefore, should come

from the states or Congress—not the Court. I agree with Nielson and

Walker that insuff‌icient attention has been given to the federalism dimen-

sions of qualif‌ied immunity, and I applaud their work mapping states’ in-

demnif‌ication statutes. But truly appreciating the federalism dimensions

of qualif‌ied immunity—and § 1983 more generally—requires taking

account of a whole range of federal, state, local, and nongovernmental

people, rules, and practices that do not make an appearance in Nielson

and Walker’s article.

In this Article, I offer an alternative account of the relationship

between qualif‌ied immunity and federalism that takes federalism all the

way down to the local and nongovernmental people, rules, and practices

that shape, administer, and constrain § 1983 doctrine on the ground.

Viewing qualif‌ied immunity and indemnif‌ication statutes in the context

of the civil rights ecosystems in which they operate makes clear that

(1) qualif‌ied immunity is not the impenetrable shield to liability that

Nielson and Walker suggest; (2) state indemnif‌ication statutes were not

crafted in reliance on qualif‌ied immunity; (3) states’ and localities’ in-

demnif‌ication provisions do not guarantee indemnif‌ication but, instead,

give off‌icials signif‌icant discretion to craft indemnif‌ication policies and

determine whether individual off‌icers should be indemnif‌ied; and (4) elimi-

nating qualif‌ied immunity would impact the dynamics of civil rights litiga-

tion—more signif‌icantly in some parts of the country than in others—but

would not have ruinous consequences for state and local governments.

* Professor of Law, UCLA School of Law. © 2020, Joanna C. Schwartz. Many thanks to Aaron

Nielson and Chris Walker for their generous and thought-provoking engagement regarding their article

and this response. This Article also benef‌itted greatly from comments by Ann Carlson, Beth Colgan,

James Pfander, Richard Re, Dan Schwartz, and Stephen Yeazell. Finally, many thanks are due to

Hannah Pollack and Bryanna Walker for excellent research assistance, and to the editors of The

Georgetown Law Journal for excellent editorial assistance.

305

Moreover, to whatever extent eliminating qualif‌ied immunity impacts state

and local government operations, off‌icials can use various tools at their

disposal (including but not limited to indemnif‌ication policies and deci-

sions in individual cases) to restore balance in qualif‌ied immunity’s ab-

sence. This more nuanced story about the federalism dimensions of

qualif‌ied immunity weakens Nielson and Walker’s reliance argument.

The Court has expressed willingness to reconsider qualif‌ied immunity

in light of evidence that the doctrine does not achieve its intended policy

goals. This Article shows that reliance concerns should not prevent the

Court from doing so.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307

I. QUALIFIED IMMUNITY’S POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

A. QUALIFIED IMMUNITY IN CIVIL RIGHTS ECOSYSTEMS. . . . . . . . . . . . . 312

B. QUALIFIED IMMUNITY AND REGIONAL VARIATION. . . . . . . . . . . . . . . 315

C. QUALIFIED IMMUNITY AND ATTORNEYS’ CASE-SELECTION DECISIONS 316

D. QUALIFIED IMMUNITY’S “REAL-WORLD EFFECTS” . . . . . . . . . . . . . . . . 317

II. STATES’ RELIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321

A. STATES’ CONCERNS ABOUT OFFICER LIABILITY . . . . . . . . . . . . . . . . . 321

B. THE PARALLEL PURPOSES OF INDEMNIFICATION AND QUALIFIED

IMMUNITY.............................................. 324

C. STATES’ APPARENT INATTENTION TO QUALIFIED IMMUNITY . . . . . . . 325

D. CHANGES TO STATES’ FINANCIAL OBLIGATIONS OVER TIME . . . . . . . 326

III. INDEMNIFICATION STATUTES’ PROTECTIONS . . . . . . . . . . . . . . . . . . . . . . . . 330

A. THE CONTINGENCIES OF INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 331

B. FORCES SHIELDING UNINDEMNIFIED OFFICERS FROM PERSONAL

LIABILITY.............................................. 333

IV. CIVIL RIGHTS LITIGATION WITHOUT QUALIFIED IMMUNITY. . . . . . . . . . . . 336

A. THE SCOPE OF GOVERNMENT LIABILITY. . . . . . . . . . . . . . . . . . . . . . . 336

B. THE FINANCIAL IMPACT OF SUITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 337

C. OFFICER HIRING, RETENTION, AND DECISIONMAKING. . . . . . . . . . . . . 338

306 THE GEORGETOWN LAW JOURNAL [Vol. 109:305

D. STATE AND LOCAL GOVERNMENTS’ POWER TO CALIBRATE

LAWSUITS’ EFFECTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342

V. THE INSTITUTIONS BEST SUITED TO CALIBRATE OFFICER , LOCAL

GOVERNMENT, AND ACCOUNTABILITY INTERESTS . . . . . . . . . . . . . . . . . . . . 344

A. QUALIFIED IMMUNITY SHOULD NOT BE THE CONSTITUTIONAL FLOOR 345

B. THE BENEFITS OF LETTING STATES WORK FROM A CLEAN SLATE . . . 346

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349

INTRODUCTION

Qualif‌ied immunity is on the chopping block. Courts, congresspeople, advo-

cacy groups, and commentators across the ideological spectrum—myself

included—have called on the Supreme Court to do away with qualif‌ied immunity

or greatly limit the defense.

1

Lower court opinions, law review articles, and ami-

cus briefs submitted to the Court have argued that qualif‌ied immunity bears little

resemblance to its common law roots, fails to achieve its policy goals of shielding

government off‌icials from the costs and burdens of liability, and undermines gov-

ernment accountability.

2

Even members of the Court have suggested that it is

time to reconsider the doctrine.

3

1. For a description of criticisms of qualif‌ied immunity by courts, commentators, and advocacy

groups, see Joanna C. Schwartz, After Qualif‌ied Immunity, 120 COLUM. L. REV. 309, 311–12

(2020). Calls to end qualif‌ied immunity multiplied following the killing of George Floyd by

Minneapolis Police Off‌icer Derek Chauvin, with congresspeople, protestors, commentators,

newspaper editorial boards, and athletes calling for the elimination of the defense. For a sample of

these recent calls to end qualif‌ied immunity, see Editorial, Congress Must Reopen the Courts to

People Whose Rights Are Violated by Police, WASH. POST (June 21, 2020, 8:30 AM), https://

www.washingtonpost.com/opinions/congress-must-reopen-the-courts-to-people-whose-rights-are-violated-

by-police/2020/06/19/b449a6a2-b0b2-11ea-856d-5054296735e5_story.html; Jamie Ehrlich, More

than 1,000 Professional Athletes Ask Congress to End Police Immunity, CNN POLITICS (June 10,

2020, 3:33 PM), https://www.cnn.com/2020/06/10/politics/qualif‌ied-immunity-congress-athletes-

brady-wentz-brees/index.html [https://perma.cc/RH9S-9JCS]; Editorial, How the Supreme Court Lets Cops

Get Away with Murder, N.Y. TIMES (May 29, 2020), https://www.nytimes.com/2020/05/29/opinion/

Minneapolis-police-George-Floyd.html; Press Release, Ayanna Pressley, Member, House of Representatives,

Reps. Pressley, Amash Introduce Bipartisan Legislation to End Qualif‌ied Immunity (June 4, 2020), https://

pressley.house.gov/media/press-releases/reps-pressley-amash-introduce-bipartisan-legislation-end-

qualif‌ied-immunity [https://perma.cc/2QMM-T82R]; Eric Schnurer, Congress Is Going to Have to

Repeal Qualif‌ied Immunity, ATLANTIC (June 17, 2020, 10:35 AM), https://www.theatlantic.com/

ideas/archive/2020/06/congress-going-have-repeal-qualif‌ied-immunity/613123/; and Jay Schweikert,

Police Immunity Highlighted by George Floyd Protestors Must End, and Off‌icers Must Pay, NBC NEWS

(June 15, 2020, 2:27 PM), https://www.nbcnews.com/think/opinion/police-immunity-highlighted-george-

f‌loyd-protesters-must-end-off‌icers-must-ncna1225281 [https://perma.cc/E2XS-2QZ6].

2. See Schwartz, supra note 1 (describing these arguments).

3. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017) (Thomas, J., concurring in part and

concurring in the judgment) (recommending that, “[i]n an appropriate case, we should reconsider our

qualif‌ied immunity jurisprudence”); Mullenix v. Luna, 577 U.S. 7, 26 (2015) (Sotomayor, J., dissenting)

(criticizing qualif‌ied immunity for “sanctioning a ‘shoot f‌irst, think later’ approach to policing”).

2020] QUALIFIED IMMUNITY AND FEDERALISM ALL THE WAY DOWN 307