Expert Commentary

Qualified immunity: 4 data-driven analyses of the doctrine that sometimes shields police from misconduct lawsuits

Authors of these four law review articles analyze thousands of qualified immunity suits. They find the doctrine powerful, but rarely used.

(Claire Anderson / Unsplash)

Qualified immunity: It’s a term percolating through the news media over recent weeks following the killing of George Floyd in Minneapolis police custody on May 25 and Breonna Taylor, shot and killed at home in Louisville, Kentucky, during a police drug raid on March 13 that netted no drugs.

The legal doctrine of qualified immunity, established in a 1967 U.S. Supreme Court case, says as long as government officials don’t break specific laws or violate constitutional rights while doing their jobs, they can’t be sued for monetary damages.

The doctrine doesn’t grant government officials immunity from paying damages — though they rarely do, research featured below finds. Qualified immunity is meant to protect officials from civil lawsuits being filed against them at all, according to the Legal Information Institute at Cornell Law School.

“The Supreme Court has described the doctrine as incredibly strong — protecting ‘all but the plainly incompetent or those who knowingly violate the law,’” writes University of California, Los Angeles law professor Joanna Schwartz in a Yale Law Journal article from September 2018.

Qualified immunity relies on a legal term of art — the government official needs to have violated a “clearly established” constitutional right. The Supreme Court has explained that whether a defendant violated a “clearly established” right depends on whether a “reasonable person” would have known about the constitutional right in question.

When courts apply qualified immunity, it’s usually early on in a case. A Reuters investigation from May identified more than three dozen civil suits from 2005 to 2018 relating to instances of police violence that were thrown out because there was no “clearly established” court precedent related to the specific police actions — even though the police conduct was deemed unlawful.

The doctrine could give civil cover to police officers involved in Taylor’s case, as some facts remain unsettled. For example, Taylor’s family and Louisville police dispute whether officers, despite having a no-knock warrant, identified themselves before using a battering ram to enter her apartment.

Over the past decade, legal scholars have written dozens of articles on qualified immunity — some in favor of abolishing it, some exploring whether it’s unlawful and some offering ways the Supreme Court could improve the doctrine without scrapping it outright. These articles can provide context on qualified immunity, and they’re a good way to find legal scholars with expertise on the issue.

Aside from legal analyses, Journalist’s Resource wanted to know whether any data-driven analyses were available on qualified immunity — especially considering the Supreme Court will soon review petitions in eight relevant cases. We identified four recent law review articles that between them analyze thousands of qualified immunity cases.

Law reviews are scholarly publications, but they differ from peer-reviewed journals in that their editors are often law students and faculty members of the school that publishes them. Law review articles may offer criticism and commentary on new or controversial legal issues. Law students often write law review articles, but the articles below were written by professors. They offer these takeaways:

  • Qualified immunity thwarts a small fraction of lawsuits brought against state and local law enforcement — but as the Reuters investigation found, it’s an open question as to why courts apply qualified immunity in some cases and not others.
  • The doctrine rarely comes up in jury trials. But when it does, it can be a major hurdle for plaintiffs.
  • Federal courts don’t shy away from difficult constitutional questions in qualified immunity cases.
  • When monetary damages are awarded in cases involving law enforcement overreach, the individual officers involved almost never pay settlements out of pocket.

Keep reading for more data-driven insights on qualified immunity.

How Qualified Immunity Fails

Joanna Schwartz. The Yale Law Journal, January 2017.

Schwartz, the UCLA law professor, undertakes “the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation,” she writes. She reviewed federal court dockets of 1,183 suits filed in 2011 and 2012 against state and local law enforcement personnel. Civil suits go to federal court when federal issues, like Constitutional rights, are at stake.

The cases included 131 from the Southern District of Texas, 225 from the Middle District of Florida, 172 from the Northern District of Ohio, 248 from the Northern District of California and 407 from the Eastern District of Pennsylvania. Qualified immunity could have been raised in 979 of those cases, Schwartz found. And just 3.9% of those cases were dismissed based on qualified immunity. Of all the 1,183 cases Schwartz studied, 0.6% were dismissed at the motion-to-dismiss stage — usually an early stage in civil litigation — and 2.6% were dismissed at summary judgment.

In other words, much more often than not, qualified immunity wasn’t enough to get a lawsuit thrown out. The doctrine, Schwartz finds, is not doing its job.

“Qualified immunity doctrine is unnecessary to shield law enforcement officers from financial liability, and the doctrine infrequently protects government officials from burdens associated with discovery and trial in filed cases,” she writes.

Qualified Immunity at Trial

Alex Reinert. Notre Dame Law Review, July 2018.

Alex Reinert, a professor at the Cardozo School of Law at Yeshiva University, picks up where Schwartz left off, assessing how qualified immunity affects federal civil rights cases that make it to jury trial.

“Qualified immunity doctrine is complex and important, and for many years it was assumed to have an outsize impact on civil rights cases by imposing significant barriers to success for plaintiffs,” he writes. “Recent empirical work has cast that assumption into doubt, at least as to the impact qualified immunity has at pretrial stages of litigation.”

Reinert identified 211 cases from 2013 to 2015 that proceeded to jury trial and in which lawyers raised qualified immunity. Most of those cases hinged on the Fourth Amendment, with plaintiffs arguing law enforcement officers engaged in unreasonable search and seizure.

Plaintiffs won in just over 25% of cases Reinert studied. Defendants won in nearly 70% of the cases, with the rest settled or otherwise disposed.

“The results reported here suggest that juries are rarely asked to answer questions that bear on the qualified immunity defense,” he writes. “At the same time, the data illustrate that qualified immunity can be a powerful barrier to plaintiffs’ success in the rare instances in which it is presented to a jury.”

The New Qualified Immunity

Aaron Nielson and Christopher Walker. Southern California Law Review, March 2016.

The authors analyze more than 800 federal courts of appeal decisions involving qualified immunity, from 2009 to 2012, to assess the influence of a key qualified immunity case — Pearson v. Callahan — the Supreme Court decided in January 2009.

Damages sought in Pearson centered on a man’s vacated conviction in Utah for drug possession and distribution after he voluntarily let an undercover officer into his house. Pearson changed the judicial procedure for qualified immunity cases, reversing a previous Supreme Court case, Saucier v. Katz, decided in 2001. Saucier was based on an incident in which an animal rights activist started to unfurl a banner during a 1994 event at a military base in San Francisco, where then-Vice President Al Gore was scheduled to speak. The activist alleged military police officers used excessive force to arrest him.

Saucier required a two-part legal test. Courts first needed to establish whether the Constitution was violated. If it was, then the court had to decide if there had been a violation of a “clearly established” constitutional right. In deciding Pearson, the Supreme Court unanimously made the first part of the test optional.

“Pearson poses thorny theoretical questions,” write law professors Aaron Nielson of Brigham Young University and Christopher Walker of The Ohio State University.

Though the Pearson court was unanimous, legal scholars have since leveled criticism against the decision. One common complaint, according to Nielson and Walker, is that it allows judges to sidestep difficult constitutional questions.

The authors come away with mixed results from their analysis. But, overall, federal court judges don’t appear to shy away from taking on new or unclear constitutional questions post-Pearson.

“Looking at how Pearson is applied, it appears that circuit courts are deciding constitutional questions more often than not, thus mitigating some of the fear that Pearson would lead to constitutional stagnation,” Nielson and Walker write. “That said, courts appear to be finding constitutional violations at a lower rate after Pearson, which lends some credence to stagnation concerns.”

Police Indemnification

Joanna Schwartz. New York University Law Review, June 2014.

Schwartz conducted public records requests and interviews for this national study of police indemnification. She gathered information on indemnification practices for 44 of the biggest state and municipal law enforcement agencies in the U.S., along with 37 small and mid-sized agencies, covering 2006 through 2011.

The question: Do police officers pay settlements against them out of pocket?

“The Supreme Court has long assumed that law enforcement officers must personally satisfy settlements and judgments, and has limited individual and government liability in civil rights damages actions — through qualified immunity doctrine, municipal liability standards and limitations on punitive damages — based in part on this assumption,” she writes.

The bottom line: Individual officers almost never pay their own settlements. During the study period, governments paid 99.98% of the $730 million in damages plaintiffs recovered in lawsuits stemming from alleged police misconduct.

“Officers did not contribute to settlements and judgments even when they were disciplined, terminated or criminally prosecuted for their misconduct,” Schwartz writes. “And officers were not required to contribute to settlements and judgments even when applicable law prohibited indemnification.”

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