Geopolitics

A New Report Casts Doubt on Both Fears and Hopes About the Consequences of Abolishing Qualified Immunity

George Floyd’s horrific death at the hands of Minneapolis police last year focused national attention on qualified immunity, the court-invented doctrine that can shield cops from federal civil rights lawsuits even for outrageous misconduct. Although the officers involved in Floyd’s death face criminal charges, qualified immunity is so expansive that it could prevent his family from suing them.

As that reality sunk in, calls to restrict or abolish the doctrine intensified. While Republican opposition blocked reform at the federal level, Colorado and Connecticut passed legislation that made it easier to sue abusive police officers under state law. Since those reforms provide a preview of what might happen if Congress (or the Supreme Court) did something similar, a recent analysis mandated by Connecticut’s law has important implications for the debate about qualified immunity.

The report concludes that Connecticut’s reforms, which authorized lawsuits against officers who violate rights protected by the state constitution, are unlikely to have a noticeable impact on municipal insurance costs. While that might seem like an obscure detail, it goes to the heart of an argument deployed by defenders of qualified immunity. It also suggests that critics of the doctrine should temper their expectations about what can be accomplished by eliminating it.

Opponents of qualified immunity are citing the Connecticut report as evidence that fears about the consequences of eliminating it are overblown. “This disproves one of the main arguments against ending qualified immunity, which is that officers would then be personally responsible for damages, causing municipal insurance [premiums] to skyrocket,” the Campaign to End Qualified Immunity says in a press release. But the report also casts doubt on the idea that reducing barriers to lawsuits by victims of police abuse will give officers and local governments a financial incentive to treat people better.

Section 41 of Connecticut’s police accountability law says “no police officer, acting alone or in conspiracy with another, shall deprive any person or class of persons of the equal protection of the laws of this state, or of the equal privileges and immunities under the laws of this state, including, without limitation, the protections, privileges and immunities guaranteed under article first of the Constitution of the state.” It adds that “any person” whose rights are violated by police “may bring a civil action for equitable relief or damages in the Superior Court.”

Under Section 41, “governmental immunity shall only be a defense to a claim for damages when, at the time of the conduct complained of, the police officer had an objectively good faith belief that such officer’s conduct did not violate the law.” The law prohibits officers from appealing cases before they are resolved by the trial court, and it requires defendants to pay plaintiffs’ legal costs when police misconduct was “deliberate, willful or committed with reckless indifference.” Except in those narrow circumstances, Section 41 requires municipalities to cover all defendant expenses related to such lawsuits, meaning that officers generally do not have to worry about personal financial liability.

As Institute for Justice legislative analyst Nick Sibilla noted at the time, Connecticut’s law was nearly defeated by police objections, and it “contains multiple loopholes that undermine its effectiveness.”

One loophole is the law’s immunity provision. Under federal law, qualified immunity bars civil rights claims when the alleged misconduct did not violate “clearly established” law, a restriction that in practice means even victims of shocking abuse cannot get their day in court unless they can locate precedents with nearly identical facts. Connecticut’s law bars state lawsuits when officers had “an objectively good faith belief” that their actions were legal. “Without clearly defining either ‘objectively’ or ‘good faith belief,'” Sibilla writes, “this carve-out threatens to block far too many victims from obtaining justice they deserve.”

Sibilla also notes that Section 41 requires even successful plaintiffs to cover their own legal costs unless the abuse they allege was “deliberate, willful or committed with reckless indifference.” That provision, he notes, “is much more limited than Colorado’s police immunity reform, which guarantees attorney’s fees to any ‘prevailing plaintiff.'”

Finally, Section 41 “only applies to police officers, and not the thousands of other government officials throughout the state.” By contrast, 42 USC 1983, a federal statute that allows people to sue police officers who violate their constitutional rights (as long as they can overcome qualified immunity), covers any government official acting under color of law.

“The ‘good faith’ exception is particularly problematic,” George Mason University law professor Ilya Somin notes, “because it could incentivize ‘hear no evil, see no evil’ behavior by police departments. If police are not told that certain types of dubious practices are illegal—or, perhaps even told they are appropriate—they could well plausibly have a ‘good faith belief’ that illegal tactics are perfectly fine, and thus get immunity.”

Still, Connecticut unquestionably made it easier to sue abusive police officers, raising the prospect of more lawsuits and more damage awards. Those litigation costs, you might think, should encourage police to behave better, encourage their departments to train them better and weed out bad cops, and encourage local government officials to make sure that happens.

Probably not, for reasons outlined in a January 5 report from the University of Connecticut’s Insurance Law Center to the Police Accountability Task Force created by the new state law.

Among other things, the task force was charged with investigating Section 41’s impact on municipal insurance costs and the merits of requiring officers to maintain personal liability insurance as a condition of employment. Here is how the report, written by University of Connecticut law professor Peter Kochenburger and economist Peter Siegelman, assesses those issues:

Municipal liability insurance already includes individual police officers as insureds under the policy, and defends them along with the municipality so long as the police officer is acting within the scope of their duties. We have not seen evidence that individual officers have actually incurred personal liability not otherwise covered by the municipality’s insurance policy. While it is possible that police officers may be able to obtain their own insurance covering their actions, the market is very limited and the policies available would almost certainly come with similar exclusions and conditions to those in the municipal liability policy, providing little additional coverage as a result….To date no evidence has been provided demonstrating that Section 41 would significantly alter existing liability laws and defenses or substantially increase the cost of municipal liability insurance.

In other words, Section 41 won’t hit abusive cops in their wallets even when they are sued successfully, because they are covered by municipal insurance policies except in extraordinary circumstances. Section 41 itself requires indemnification. Nor is the law expected to have much of an impact on the cost of maintaining insurance.

Kochenburger and Siegelman caution that they were unable to obtain important information that would have been relevant to their analysis. But the lack of that information actually reinforces their general conclusions.

In particular, Kochenburger and Siegelman could not “obtain information about how—if at all—insurers plan to change underwriting or pricing practices in light of the new statute.” That detail is telling, because it suggests that insurers, whose bread and butter is setting premiums that properly reflect the risk of payouts, are not concerned about Section 41’s effect on their business.

Kochenburger and Siegelman also note that the Connecticut Interlocal Risk Management Agency (CIRMA), a nonprofit association that provides coverage to hundreds of government agencies, said “it had not conducted an analysis or forecast of Section 41 to evaluate whether it would generate significant new liability or increase the number and cost of claims against municipalities and police officers.” Nor did it plan to do so. “That CIRMA has not evaluated Section 41 to determine its potential effects on municipal liability,” the report says, “suggests to us that CIRMA believes Section 41 will not appreciably [affect] the liability of municipalities for law enforcement activities.”

These conclusions are similar to what UCLA law professor Joanna Schwartz, a leading critic of qualified immunity, found when she considered the likely impact of abolishing it. In a 2020 Columbia Law Review article, Schwartz cited survey data indicating that police officers do not worry much about being sued. That is unlikely to change even without qualified immunity, she said, for three reasons:

First, law enforcement officials infrequently pay for their defense counsel and virtually never contribute to settlements and judgments entered against them…Second, available evidence suggests that most law enforcement agencies do not gather and analyze information from lawsuits brought against their officers…Third, available evidence suggests that government officials have a number of other concerns on their minds beyond the threat of litigation. Recent reports attribute the challenges of recruiting and retaining law enforcement officers to “high-profile shootings, negative publicity about the police, strained relationships with communities of color, tight budgets, low unemployment rates, and the reduction of retirement benefits.” Officers unquestionably dislike being sued. But these three factors—widespread indemnification, government inattention to information in lawsuits, and myriad other concerns about accepting government employment—likely explain officers’ current disregard for the threat of being sued while on the job. And these three factors would presumably continue to exist in a world without qualified immunity.

In short, the financial costs of lawsuits are unlikely to deter police abuse. But that hardly means there would be no benefit from abolishing qualified immunity.

First and foremost, more victims of police abuse could obtain compensation for their injuries. And even if the cost of those payouts does not figure prominently in the decisions of police departments and local governments, the negative publicity generated by such cases would provide an incentive for better training and management. Schwartz also argues that more cases and more trials could “influence officer behavior” by disclosing information about policies and practices that is “sometimes unknown to the government entities whose employees are implicated in the suit.”

Scrapping qualified immunity also would help clarify important constitutional questions that currently go unresolved as courts block lawsuits without deciding whether the actions they allege were illegal. The Supreme Court has allowed that shortcut since 2009, when it said judges need not assess a plaintiff’s constitutional claims if they conclude that the rights police allegedly violated were not clearly established at the time.

Did Idaho police violate the Fourth Amendment when they wrecked a woman’s home by bombarding it with tear gas grenades after she agreed to let them inside to arrest her former boyfriend? What about the Georgia sheriff’s deputy who shot a 10-year-old boy while trying to kill his dog, simply because police had chased a suspect into their yard? Or the Nebraska sheriff’s deputy who, while responding to an erroneous “domestic assault” report, lifted the purported victim in a bear hug and threw her to the ground, knocking her unconscious and breaking her collarbone? Or the Tennessee officer who allegedly sicced a police dog on a burglary suspect who had already surrendered and was sitting on the ground with his hands up? Or the California cops who allegedly stole cash and property worth more than $225,000 while executing a search warrant?

In these and other cases, we do not know the answers, because appeals courts dismissed them without addressing the constitutional questions they posed. Cases like these send the message that Americans have no remedy when police violate their rights in appalling ways, unless they can locate precedents with closely similar facts. As 5th Circuit Judge Don Willett notes, “qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”

Worse, Willett adds, it has become increasingly difficult to find the precedents required to proceed with a suit, because courts are producing fewer and fewer of them. That means not only that cops who “behave badly” cannot be sued the first time around but also that other cops who do exactly the same thing are off the hook as well, now and forever. This situation is plainly intolerable in a legal system that purports to limit what police can do in the name of enforcing the law.

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