In District of Columbia v. Wesby, the Supreme Court has once again been asked to address the scope of qualified immunity, which bars constitutional claims against public officials unless they were found to have violated clearly established law. The court has explained that the doctrine is essential to protect officers from the burdens of discovery and trial, as well as from damages awards. But after analyzing thousands of Section 1983 cases against law-enforcement officers, professor Joanna Schwartz questions whether either rationale supports qualified immunity in its current form. To the contrary, she fears that qualified immunity “increase[s] the costs and delays associated with constitutional litigation” without any corresponding benefits for officers.
In her 2014 article, Policing Indemnification, Schwartz found that almost all police officers are indemnified for their conduct in the course of employment. More surprising, in her forthcoming article in the Yale Law Journal, How Qualified Immunity Fails, Schwartz found that fewer than four percent of Section 1983 cases are dismissed on qualified-immunity grounds, and that the defense of qualified immunity is rarely raised before discovery. In short, her empirical research shows not only that police officers are almost never personally at risk from money damages, but also that qualified immunity rarely protects them from discovery and trial.
After reporting her empirical findings, Schwartz then explores why qualified immunity is not raised early and often by the public officials it is intended to protect, and why courts frequently deny those claims when officials do raise them. Schwartz suggests that district courts may find it difficult to dismiss cases on qualified-immunity grounds because plaintiffs can plausibly plead violations of clearly established rights in their complaints. Likewise, plaintiffs can often raise factual disputes that will prevent dismissal on qualified-immunity grounds at the summary judgment stage. In other words, the doctrine is not well-suited to eliminating cases early in the proceedings.
Schwartz does not deny that qualified immunity has an effect on Section 1983 litigation, however. The doctrine likely discourages some potential plaintiffs from filing lawsuits, and persuades others to withdraw or settle claims before discovery or trial. Schwartz also suggests that plaintiffs’ attorneys may plead around qualified immunity by including in their complaints claims that are not subject to the qualified-immunity defense – such as claims against municipalities, claims seeking injunctive relief, and state-law claims – thereby avoiding early termination of the litigation.
As Schwartz acknowledges, her data could support the conclusion that the Supreme Court should further strengthen qualified immunity to protect public officials from suit. But Schwartz argues that qualified immunity is fundamentally ill-suited to weed out cases early in proceedings, and in any case she believes it would be difficult to make the qualified-immunity doctrine any stronger than it currently is. She suggests instead that the court rethink the structure of the doctrine. For example, she proposes that the court reconsider its decision in Harlow v. Fitzgerald barring consideration of the officer’s subjective intent, because the court’s rationale had been to shield officers from discovery – and she has shown that the doctrine rarely serves that purpose. She also questions whether defendants should have the right to interlocutory appeal of denials of qualified immunity, noting that the time and money spent briefing such appeals may be greater than the time and money saved in the few cases in which qualified-immunity denials are reversed by an appellate court.
In previous decisions, the Supreme Court has explained that qualified immunity is intended to “balance … the need to hold government officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties responsibly.” But the court has also stated that new evidence might “justify reconsideration of the balance struck” in its qualified-immunity jurisprudence. Schwartz’s recent articles provide important new evidence about the costs and benefits of qualified immunity that could influence the court’s jurisprudence on qualified immunity in Wesby and future cases.