Conservatives who are leery of government power in other contexts often have a blind spot when it comes to police officers. Tough-on-crime instincts, coupled with anger at left-wing critics of police practices, frequently translate into a reflexive "back the blue" stance that is inconsistent with limited government, civil liberties, and the rule of law. Donald Trump's promise to "restore law and order" by indemnifying police officers "against any and all liability" appeals to that sentiment, even as it underestimates the difficulty of successfully suing police officers and overlooks the fact that cops already are routinely indemnified against damages when plaintiffs manage to overcome the barrier created by qualified immunity.
Qualified immunity bars federal civil rights claims unless they allege misconduct that violated "clearly established" law. A new Institute for Justice (I.J.) report on the consequences of that doctrine further complicates the conventional conservative narrative by debunking the assumption that qualified immunity mainly applies to allegations of police brutality.
In an analysis of 5,526 appeals involving qualified immunity that federal circuit courts heard from 2010 through 2020, I.J. researchers found that half involved lawsuits against other kinds of government officials, including "mayors and city managers, university and school officials, prosecutors and judges, and child protective services workers." The report reinforces the complaint that qualified immunity frustrates meritorious claims of constitutional violations and casts doubt on the belief that it mitigates the burden of litigation for defendants.
"While police were the most common defendants, fully half of appeals featured other types of government officials, either alongside or instead of police," data scientist Jason Tiezzi, I.J. deputy litigation director Robert McNamara, and I.J. attorney Elyse Smith Pohl report. "Prison officials made up the next largest share, but in more than one in five of all appeals, or 21%, defendants were neither police nor prison officials."
Many of the appeals involved claims of excessive force (27 percent) or false arrest (25 percent). But nearly a fifth (18 percent) "encompassed violations of First Amendment rights, including speech, association, and religious liberty." In total, "only 23% of appeals fit the popular conception of police accused of excessive force."
What do the other cases look like? Based on a representative sample of 125 First Amendment cases, Tiezzi et al. found that three-fifths "involved plaintiffs alleging premeditated abuse by government officials in retaliation for protected First Amendment activity." Nearly half involved government workers who "alleged retaliation from their superiors," while nearly a third were filed by private citizens who "claimed they were targeted for retaliation by government officials."
Sylvia Gonzalez's case illustrates the point that claims under 42 USC 1983, which authorizes lawsuits against state and local officials for constitutional violations, frequently deviate from "the popular conception of police accused of excessive force." Five years ago, Gonzalez, a newly elected member of the Castle Hills, Texas, city council, was charged with concealing a government record, a misdemeanor that would have resulted in her removal from office if she had been convicted. The charge was based on a document—a petition that Gonzalez herself spearheaded—that she says she accidentally collected with other papers during a city council meeting.
Although Bexar County District Attorney Joe Gonzales declined to pursue the charge, Gonzalez, who is represented by I.J., plausibly argued that her arrest was politically motivated. The lead defendant in her lawsuit was Castle Hills Mayor Edward Trevino, a political opponent who she said had instigated the arrest. Last fall, the U.S. Supreme Court agreed to consider Gonzalez's appeal, which poses the question of what counts as "objective evidence" that someone was arrested in retaliation for constitutionally protected activity.
Another case that contrasts with popular impressions of qualified immunity involves Priscilla Villarreal, a Laredo, Texas, gadfly and citizen journalist who was arrested for violating an obscure state law that supposedly criminalized a standard reporting practice: obtaining information that "has not been made public" from a "backchannel source" at the local police department. Villarreal argued that police punished her for her vocal criticism of local law enforcement agencies. But an appeals court ruled that the officers who were involved in her arrest were protected by qualified immunity because busting someone for practicing journalism was not "obviously unconstitutional."
Other Section 1983 lawsuits have involved people who were arrested for jokes posted on social media. In a Louisiana case, Waylon Bailey, who made a questionable but constitutionally protected joke about COVID-19 on Facebook, ultimately recovered damages. But he was initially frustrated by a ruling based on qualified immunity before he persuaded an appeals court to reverse that decision. In an Ohio case, an appeals court concluded that qualified immunity barred a First Amendment claim by Anthony Novak, who was arrested because of a Facebook parody mocking the Parma Police Department.
Even though these incidents involved police officers, they should give pause to conservatives who see qualified immunity as a shield that protects cops from frivolous claims of excessive force. It is not hard to imagine how a conservative's controversial opinions or attempts at humor might provoke the sort of retaliation that Gonzalez, Villarreal, Bailey, and Novak suffered.
Or consider Allan Minnerath, an I.J. client who "saw his company's trucks and drivers detained for hours by an overzealous county road engineer in Mahnomen County, Minnesota." The official, "who opposed a state contract awarded to Allan's firm, decided to do something about it: He changed the weight limits on roads he knew the trucks would travel, then played traffic cop by personally stopping the now-overweight vehicles."
None of these cases involves the sort of good-faith, "split-second" decisions for which qualified immunity is supposedly designed. The defendants all had plenty of time to think better of their actions after considering the relevant constitutional constraints. Those situations had nothing to do with the scenario that Trump imagines, in which fear of litigation prevents police officers from doing their jobs, forcing them to "let a lot of bad people do what they want to do."
That scenario is also quite different from cases in which school officials retaliate against irksome parents, state university officials try to squelch views that offend them, or government-employed social workers separate parents from their children for no good reason. And again, these abuses do not uniquely affect people of any particular ideology.
Keeping in mind that civil rights claims may involve government abuses that would outrage conservatives and plaintiffs they would find sympathetic, how does qualified immunity figure in these cases? In the cases analyzed by I.J., "59% of qualified immunity appeals were resolved solely in favor of government defendants, while 24% were resolved solely in favor of plaintiffs." Tiezzi et al. note that "qualified immunity disadvantages plaintiffs for arbitrary reasons" because a circuit's population and publication rate affect the availability of precedents that could be used to overcome that barrier.
Unlike plaintiffs, the report notes, defendants in these cases have a right to immediately appeal an adverse ruling on qualified immunity, and "they can do this multiple times in the same lawsuit." Nearly all of the cases that I.J. analyzed involved such "interlocutory appeals," which help explain "why the median duration of a qualified immunity lawsuit was three years and two months, 23% longer than the typical federal civil suit up on appeal."
Worse, "qualified immunity rulings often lack precision and clarity," which makes it "hard for plaintiffs to pinpoint the clearly established law required to win." The report's authors "often could not untangle courts' reasons for granting qualified immunity—if reasons were even offered."
This opacity poses a challenge for defendants as well as plaintiffs. "Qualified immunity confuses instead of clarifies the rules government workers must follow to avoid burdensome litigation," Tiezzi et al. write. "If legal experts struggle to make sense of qualified immunity, the average government official—let alone one facing a life-or-death situation—cannot be expected to do so."
UCLA law professor Joanna Schwartz, a leading critic of qualified immunity, has made the same point. Schwartz argues that "qualified immunity's boldest lie" is the premise that police officers can reasonably be expected to keep abreast of relevant case law, such that they would know when their actions closely resemble conduct that was previously deemed unconstitutional. She documented a yawning gap between that implausible assumption and the reality of how cops are actually trained.
"Nowhere in the [Supreme] Court's decisions is consideration given to how, exactly, police officers are expected to learn about the facts and holdings of the hundreds—if not thousands—of Supreme Court, circuit court, and district court opinions that could be used to clearly establish the law for qualified immunity purposes," Schwartz notes. "Nor has much consideration been given to the likelihood that police officers recall the facts and holdings of these hundreds or thousands of cases as they are making split-second decisions about whether to stop and frisk someone, search a car, or shoot their gun."
Even if that information is nearly impossible to collect and remember, you might assume, qualified immunity at least reduces the burden that litigation imposes on defendants. Schwartz's research suggests otherwise. Her conclusions are based on an analysis of nearly 1,200 federal civil rights cases, a survey of about 100 lawyers practicing in this area, and in-depth interviews with 35 of them. While abolishing qualified immunity can be expected to increase the number of claims filed, she says, it is unlikely to result in a flood of frivolous lawsuits, given the financial and professional incentives that lawyers face. At the same time, she concludes, scrapping the doctrine would tend to make any given lawsuit less burdensome for defendants because qualified immunity "increases the cost, complexity, and time associated with civil rights litigation."
Tiezzi et al.'s findings jibe with that assessment. "Qualified immunity fails to protect officials from the burdens of litigation, most notably potentially intrusive discovery," they write. "Nearly 70% of appeals came at the summary judgment stage of litigation, when courts typically have already allowed discovery. Qualified immunity clogs up the courts with extra, often lengthy, appeals—some 2,000 interlocutory appeals that would not have existed without the special appeal rights given to government defendants."
This evidence suggests that qualified immunity blocks meritorious claims while increasing the complexity and cost of litigation for both sides. "Our results add to a growing body of research finding qualified immunity unacceptably burdens plaintiffs and fails at its goals," Tiezzi et al. conclude. "This strengthens the argument for the Supreme Court to overturn [Harlow v. Fitzgerald], the case in which it created the doctrine four decades ago. If it will not, Congress can and should act to end qualified immunity."
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