Policing in America

A Political Compromise on Qualified Immunity

By Paul Stern
Friday, May 21, 2021, 11:10 AM

Next week marks the one-year anniversary of the death of George Floyd, whose murder at the hands of a police officer led to national protests over policing in the United States. In his first speech to a joint session to Congress, President Biden called on Democrats and Republicans to work together to enact legislation aimed at police reform by the first anniversary of Floyd’s death. Despite broad public support for legislation, and continued negotiations between the parties, it does not appear that a compromise will be reached in time to commemorate the tragic occasion.

Last year, the Democratic-controlled House passed the George Floyd Justice in Policing Act of 2020. The legislation seeks to reform policing by enacting various federal standards, including national training requirements and banning the use of chokeholds and no-knock warrants. The proposed law would also require law enforcement to collect data on all investigatory activities and reinvest in community-based programs to empower communities to reimagine public safety.

Senate Republicans unveiled their own Justice Act in June 2020. The bill has some similarities to the House bill, such as making lynching a federal hate crime, increasing data collection and providing funding for body cameras. However, the parties continue to negotiate over several key issues, including the banning of certain police practices and the ability to transfer surplus military equipment to police departments. But no issue has proved to be a greater roadblock than qualified immunity.

The judicially created doctrine was conceived as a means of striking the proper balance between permitting monetary compensation for police wrongdoing while protecting individual officers who, in good faith, did not realize that their conduct was violating victims’ constitutional rights. The doctrine requires courts to assess two questions. First, courts must determine whether the facts as alleged support a claim of a violation of a constitutional right. The doctrine “applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Second, courts must decide whether that right was “clearly established” at the time the defendant acted. Previously, the Supreme Court required courts to address whether a constitutional violation was alleged before tackling the second question, but courts are now permitted to decide which of these questions to decide first. Because each encounter with law enforcement is to some degree factually unique, and courts do not need to resolve the issue of whether the conduct was constitutional before concluding that the immunity applies, the doctrine has been chastised as protecting “all but the plainly incompetent or those who knowingly violate the law.”

Eliminating qualified immunity has been explained as a necessary means to achieving accountability. The challenges with aiming the remedy at the individual officer, however, are both practical and analytical. From a practical standpoint, defendant officers are often either judgment proof or indemnified by their employers. Congress has long understood that such remedies would often serve as a “hollow remedy” given the officers’ likely inability to pay the substantial judgment. Even if officers were able to pay, most states have statutes that permit employers to indemnify their officers from liability when acting within the scope of their employment.

From an analytical standpoint, remedies aimed at the department or agency level may better incentivize governments to implement best practices, evaluate substandard employees and modify past missteps. As I’ve written in previous posts, if the purpose of these civil actions is to prevent future misconduct, targeting damages at the agency level, rather than the individual, promotes greater structural reform aimed to ensure best practices and training techniques. Systemic problems require institutional reform. A police officer’s contact with an individual is often a manifestation of several prior decisions along a criminal justice continuum. Deterrence, in that sense, is concerned not only with point-of-contact interactions between law enforcement officers and citizens but also with leveraging governmental mechanisms to achieve structural reform.

So where does this leave accountability for the individual officer? To completely abolish qualified immunity would be to remove any analysis of culpability of the individual and instead make officers strictly liable for constitutional infractions. At the same time, officers currently tend to enjoy too great of a shield, regardless of whether their actions were negligent, intentional or even malicious.

Rather than an all-or-nothing approach, Congress should focus on when the officer’s conduct approaches criminal behavior. When an officer acts with the requisite intent or in callous disregard of the plaintiff’s federal protected rights, immunity should no longer shield the individual from personal responsibility. In civil actions, that conduct is addressed through punitive damages. Punitive damages further the aims of the criminal law: to punish reprehensible conduct and to deter its future occurrence.

But how can punitive damages be leveraged to promote greater accountability at the individual officer level while still granting general immunity? One method would be to allow for actions to be brought against states and municipalities for constitutional violations while still permitting claims against individual officers when the plaintiff can plead facts sufficient to warrant punitive damages. This allows for compensatory damages for a broader array of constitutional infractions while narrowing the focus on individual officers to those whose conduct rises to a degree akin to criminal conduct. Such a regime is already aligned with Supreme Court precedent that permits punitive damages against the individual officer but prohibits them against state and municipal entities.

Eliminating indemnification for punitive damages, even when officers act within the scope of their employment under state law, may prove to be a more palatable approach to individualized accountability. Most states traditionally apply respondeat superior liability—that is, when an employer is held vicariously liable for their employees’ acts performed within the course of their employment—only to compensatory damages, not punitive damages. A policy that allows for vicarious liability except for punitive damages strikes the proper balance among maximizing compensation, targeting deterrent impact and preserving individual accountability.

Here’s how it would work in practice. Congress would pass legislation making states and local municipalities civilly liable for federal constitutional violations, not merely based on official policy or customs, but as the result of conduct by their employees acting within the scope of their employment under the theory of respondeat superior. While some constitutional questions may surround the imposition of liability on “states” as well as local government entities, scholars generally have concluded that the 11th Amendment would not prohibit such inclusion. And, with the new legislation effectively amending 42 U.S.C. § 1983, courts would no longer be hamstrung by Supreme Court precedent that “has generated a body of interpretive law that is so complex that the law has become difficult to apply.” Instead, vicarious liability standards would apply against law enforcement entities for constitutional infractions.

In addition to being able to hold the government entity vicariously liable for the constitutional infraction, a plaintiff would also be able to bring suit against the officer in his or her individual capacity if sufficient facts can be pleaded to allege that the violation occurred as a result of the officer’s malicious or evil intent or in callous disregard of the plaintiff’s federally protected rights. In the civil rights arena, it is commonplace to file suit against both the government entity and the individual officer under different theories of liability. As I’ve written in earlier posts, common-law tort law can often address a broader array of conduct than constitutional tort law, and therefore suits are often brought under both theories.

The notion of having to plead an improper motive or intent to open the courtroom doors is not a foreign concept. Many constitutional infractions already include an official’s improper motive as a necessary element, such as certain claims of race and gender discrimination in violation of the Equal Protection Clause or termination of employment based on political affiliation in violation of the First Amendment.

Of course, civil rights attorneys may object to that same standard applying to all police conduct, including Fourth Amendment searches and seizures. But as political compromises go, making the threshold for suing individuals premised on when they act purposefully, as opposed to mistakenly, makes a great deal of sense. (To be clear, I use the phrases “purposefully” and “mistakenly” in the colloquial sense. All constitutional violations are “intentional” in so far as an officer cannot violate a person’s constitutional rights “negligently.” Despite what some courts have suggested, there is no such thing as “negligent use of excessive force.” While these standards are often difficult to parse, I use “mistakenly,” not merely to suggest the officer acted below a standard of due care, but with a degree of intent that does not rise to the requisite level for punitive damages.)

Reformers may also worry that the swap of an objective standard with the heightened subjective standard will result in only marginal progress. After all, not even qualified immunity protects “those who knowingly violate the law.” But the Supreme Court has noted that “a defense of qualified immunity may not be rebutted by evidence that the defendant’s conduct was malicious or otherwise improperly motivated.” Courts have used the objective standard to grant immunity to officers even after juries have awarded punitive damages. Under the subjective standard, while deviations from standard operating procedures and other objective benchmarks may be factors when assessing an officer’s motivation, officers would not be shielded from scrutiny by a standard predicated on whether precedent makes the constitutional question “beyond debate.”

It will not only be reformers who question the new standard. In the past, some courts, including an en banc decision from the U.S. Court of Appeals for the D.C. Circuit, established an elevated evidentiary standard for improper motives due to the concern that “an official’s state of mind is easy to allege and hard to disprove.” Officials may view the improper motive standard as an easily navigable standard, particularly at the motion to dismiss stage. And, absent qualified immunity, not only would the officer be unable to dismiss the action early, but the individual would also be unable to seek interlocutory appeal to avoid the burdens and stresses of discovery.

In Crawford-El v. Britton, the Supreme Court declined to heighten the evidentiary standard for constitutional violations based on improper motives. The court identified mechanisms at a court’s disposal to assess claims prior to permitting discovery. For example, courts may order a reply to a defendant’s or third party’s answer under Federal Rule of Civil Procedure 7(a) or grant the defendant’s motion for a more definite statement under Rule 12(e). While it is questionable how often those procedural tools are effectively invoked to dispose of cases, another mechanism has arisen since Crawford-El that has proved to have an effective gatekeeping function: the Iqbal/Twombly/Iqbal pleading standard. In Bell Atlantic Corp. v. Twombly, the Supreme Court held that pleading standard requires a complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” In Ashcroft v. Iqbal, the Supreme Court not only clarified that its articulation of the pleading standard in Twombly extends to “all civil actions[.]” The court also echoed its previous skepticism that the current application of discovery rules can adequately prevent abuse by rejecting the so-called “careful case management” approach: “[T]he question presented by a motion to dismiss a complaint for insufficient pleading does not turn on the controls placed upon the discovery process.” Under this pleading standard, courts are able to draw on their “judicial experience and common sense” to assess whether plaintiffs have established a reasonable inference of wrongdoing. The standard may be used to quell the concern that the subjective intent standard to bring a constitutional tort claim against an individual officer is too easily circumvented.

This proposed legislation will surely be criticized from both sides of the debate, which is the hallmark of true political compromise. Congress should recognize that there are times when civil actions seek to encourage agency reform and times when they seek to hold officers personally accountable. The law should be reformed to better achieve those twin goals.