Criminal Justice & the Rule of Law

Qualified Immunity and the Plea for Accountability

Paul Stern
Monday, December 21, 2020, 8:01 AM

Lawmakers focused on revamping civil rights litigation must be as focused on remedies law as they are on privileges and immunities if they hope to accomplish transformational change.

Law enforcement officers respond to protests in Columbus, Ohio following the death of George Floyd (Paul Becker,; CC BY 2.0,

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Following the tragic death of Breonna Taylor, the City of Louisville, Kentucky, settled a wrongful-death lawsuit brought by her family. The city not only agreed to pay $12 million but also took the remarkable step of agreeing to implement numerous police reforms, including creating an early-action warning system to identify officers with red flags, implementing mandatory commanding officer reviews of all search warrants, and hiring a team of social workers to assist with dispatched runs. The terms were remarkable because such structural reforms are typically achieved, if at all, through consent decrees entered into with the U.S. Department of Justice rather than suits brought by individual plaintiffs. As civil rights litigation goes, the Taylor settlement represents the gold standard.

Yet, despite the seemingly unprecedented terms of the settlement, pleas for accountability persist. Such pleas echo the sentiment of Eric Garner’s family following their $5.9 million settlement with the City of New York, when they stated, “Justice is when somebody is held accountable for what they do.”

Accountability, in this context, is shorthand for criminal prosecutions and disciplinary proceedings. If indictments and firings are considered the only acceptable form of accountability, civil actions simply do not bring about those ends, and the legal community should be candid about whether any reforms to constitutional tort law, including the elimination of the qualified immunity doctrine, can achieve meaningful accountability. In other words, lawmakers focused on revamping civil rights litigation must be as focused on remedies law as they are on privileges and immunities if they hope to accomplish transformational change.

The Labyrinth of Constitutional Tort Law

Personal-injury actions based on officials’ violations of individual rights guaranteed by the Constitution are commonly referred to as constitutional tort law. While tort principles have long been bedrock tenets of American jurisprudence, constitutional tort law is a relatively recent phenomenon. It was not until 1961, in Monroe v. Pape, that the Supreme Court held that the federal statute codified as 42 U.S.C. § 1983 “should be read against the background of tort liability that makes a [person] responsible for the natural consequences of his actions,” so as to impose liability on municipal officials for constitutional rights violations. Ten years later, the court recognized an implied cause of action for certain constitutional infractions committed by federal actors in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

As many jurists and scholars have lamented, what constitutional tort law lacks in longevity it makes up for in complexity. As the Supreme Court sought to harmonize the nascent jurisprudence with traditional constitutional principles, the legislative history surrounding § 1983, and competing policy considerations, constitutional tort law quickly descended into a labyrinth of varying immunities and countervailing doctrines. These complexities have compelled several justices to advocate for a reexamination of earlier rulings.

No complexity has frustrated the judiciary and academia as much as qualified immunity. This judicially created doctrine was conceived as a means of striking the proper balance between permitting compensation for victims of mistreatment by officials, while not punishing those officers who, in good faith, did not realize that their conduct was violating victims’ constitutional rights. Initially, the courts applied this doctrine so that courts were required to undertake a subjective assessment of whether the official in question acted with the requisite intent or understanding. The Supreme Court later found the subjective element of the good-faith defense incompatible with its concern that well-intentioned officers often had to endure the stresses and burdens of a fact-intensive investigation, extensive discovery and a trial. Casting aside the subjective standard, the court devised an objective test, which asked whether the officer’s conduct violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”

The basic premise that a constitutional right be “clearly established” may appear innocuous enough—lest the official be financially responsible for conduct for which there was no reasonable basis to know it would subsequently be deemed unconstitutional. However, the Supreme Court later substantially narrowed the test for what counts as a clearly established right, thus broadening the scope of qualified immunity. Specifically, it ruled that prior court rulings about the sort of conduct that violates rights must be sufficiently specific to provide officers with clear notice that conduct they are about to engage in is prohibited. As a result, courts are tasked with determining whether “every reasonable official would have understood that what he is doing violates that right.” In other words, the fact that the conduct was unconstitutional must be “beyond debate.” Given that each encounter with law enforcement is to some degree factually unique, and that courts do not need to resolve the issue of whether the conduct was indeed 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.”

The Rationale for Constitutional Tort Law

The Supreme Court has said that “the basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights.” In Bivens, the court similarly found an implied cause of action within the federal constitution based on the belief that constitutional infractions mandate federal equitable relief. While the famous pronouncement in Marbury v. Madison that “every right, when withheld, must have a remedy” has historically not resulted in monetary damages for every constitutional infraction, the Bivens court recognized that when other remedies, such as habeas and the exclusionary rule, are unavailable, a compensatory regime may be the only available alternative.

If compensating injured parties was the sole purpose of constitutional tort law, the rationale would best be effectuated through a remedial regime akin to what Justice Lewis Powell referred to as strict liability in Owens v. City of Independence, Missouri (1980)—that is, liability for constitutional violations without the ability of the defendant to raise immunities, privileges or good-faith defenses. Under such a regime, immunities (absolute or qualified) would be antithetical to the pursuit of perfect synergy between violations and remedies. In the same vein, punitive damages would not be warranted for constitutional wrongs, as only compensatory damages are necessary to make plaintiffs “whole.”

The elimination of qualified immunity can be couched in this purely compensatory model: Injured parties whose constitutional rights have been violated should be entitled to a corrective remedy. And, while monetary damages is not a perfect method for making an injured party “whole,” it is the best system we’ve conceptualized to date. Numerous policy considerations would remain, including which constitutional rights violations necessitate monetary awards, but the culpability of the officer would be removed from the equation. Whether the officer performed her duties in a reasonable manner is simply immaterial to the compensatory analysis. Some commentators have cautioned reformers to be careful of what they wish for. While judges may be willing to pronounce constitutional infractions if it means excluding certain evidence from criminal proceedings, when constitutional pronouncements result in judgments of multimillion-dollar recoveries for every potential plaintiff with similar injuries, often stretching budgets and bank accounts to their breaking point, courts may become more circumspect before pronouncing sweeping constitutional rights. Nonetheless, it is a risk that elimination advocates appear willing to take.

Under a purely compensatory regime, however, the debate regarding which level of government actor should be subjected to suit becomes largely immaterial. Provided some government entity pays the settlement or judgment, it does not matter who precisely writes the check. As a result, the individual tortfeasor need not be named as the defendant in her individual capacity in order to satisfy the compensatory theory of liability.

Additionally, constitutional tort law could also be tempered by available alternative remedies. Even in cases where monetary compensation was the appropriate remedy, as injured parties are not entitled to double recovery, courts could avoid making difficult constitutional pronouncements when alternative theories under common-law tort law exist. Not only would this be in keeping with the constitutional avoidance doctrine, but, as I’ve argued in a previous Lawfare article, common-law tort law can also often address a broader array of conduct than constitutional law when examining the proximate cause of particular injuries. This is particularly true in the case of excessive force under the Fourth Amendment. In other words, examining wrongful death cases through the lens of common-law, rather than constitutional, tort law often has the hidden benefit of a more holistic assessment of systemic failures. For this reason, I have advocated for folding federal constitutional tort actions into the Federal Tort Claims Act, thereby allowing both avenues of recovery through a single statute. Based on a previous recommendation by the U.S. Department of Justice in 1978, the reform would permit courts to compensate broadly, based on constitutional or common-law tort theories, while eliminating the justification for curtailing the Bivens remedy and the doctrine of qualified immunity. While the United States would still be permitted to invoke privileges afforded to government employees, and maintain immunities that are necessitated by the separation of powers doctrine, many of the rationales for individualized immunity shields would be removed, allowing for a more robust compensatory framework.

Compensation, however, is not the only rationale for constitutional tort law. The Supreme Court has also identified the benefit of “prevention of abuses of power by those acting under color of state law.” Unlike in a purely compensatory regime, when the purpose of tort law is deterrence, targeting the proper defendant becomes a more pressing concern. In previously holding that the Bivens remedy could not be folded into the Federal Tort Claims Act, the court relied on the fact that constitutional tort damages are “recoverable against individuals …. It is almost axiomatic that the threat of damages has a deterrent effect, particularly so when the individual official faces personal financial liability.”

Eliminating qualified immunity has been explained as a necessary means to achieving this notion of deterrence. The problem with aiming the remedy at the individual officer, however, is both practical and analytical. From a practical standpoint, defendant officers are often either judgment proof or indemnified by their employer for constitutional tort liability. Congress has long understood that constitutional tort 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. Yet, the Supreme Court recently dismissed the issue of whether governments can represent their employees in civil actions and indemnify their judgments as “not our concern.” If the court believes that requiring officers to pay judgments out of pocket was a critical deterrent mechanism, it should be concerned that they rarely do so in reality.

From an analytical standpoint, as many scholars have noted, remedies aimed at the department or agency level may better incentivize governments to implement best practices, evaluate substandard employees and modify past missteps. That rationale supports vicarious liability through the doctrine of respondeat superior. As the Restatement (Third) of Agency underscores, “[r]espondeat superior creates an incentive for principals to choose employees and structure work within the organization so as to reduce the incidence of tortious conduct.” If the purpose of constitutional tort law 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.

Institutional problems require institutional reform. Police officers are the pointy edge of the spear. Their contact with an individual is often a manifestation of several prior decisions along a criminal justice continuum. By allowing vicarious liability, a more uniform legal framework can be devised with a single, overarching principle governing privileges and immunities law. 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. And, again, if compensation is the rationale for the elimination of qualified immunity, obtaining judgments through vicarious liability would serve the same purpose.

In this sense, the absence of vicarious liability under § 1983 frustrates the deterrent rationale of constitutional tort law more than qualified immunity. In Monell v. New York City Department of Social Services (1978), the Supreme Court held that a municipality may not be held liable under § 1983 based solely on the tortious acts of its employee. That decision was based on the court’s questionable interpretation of the statute’s legislative history. Rather, plaintiffs seeking to impose liability on a municipality must identify a “policy” or “custom” that caused the injuries. In Board of the County Commissioners of Bryan County, Oklahoma v. Brown (1997), the court determined that locating a policy or custom ensures that municipal liability is “only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality.” That municipalities may not be held vicariously liable for the tortious conduct of their employees but may be held liable based on municipal policies or customs that cause the plaintiff’s injury, in Justice Stephen Breyer’s estimation, “has produced a body of law that is neither readily understandable nor easy to apply.”

Of course, all of this presupposes that monetary damages aimed at any level of government can have a deterrent effect. The empirical evidence is both scant and pessimistic. Research cannot capture the extent to which officers have declined to employ harsher practices for fear of lawsuits. However, it is difficult to conceive that officers would be thinking about their bank accounts when making split-second decisions in tense environments. Moreover, it is highly questionable whether officers who have such little regard for the constitutional rights of others so as to knowingly violate the law would be deterred by the prospect of civil lawsuits. Balancing that reality with the potential chilling effect on good-natured officers, many commentators have questioned the “axiomatic” deterrent impact on individual officers based on the threat of monetary damages.

Nor does the research suggest that monetary damages aimed at the bureaucratic level move the dial significantly. As many commentators have argued, the best chance to incentivize is when the damages are paid, not through a general appropriation but, rather, through the budget of the department or agency that employs the tortfeasor. For example, in a Senate hearing concerning the then-proposed 2002 No FEAR Act, Sen. John Warner stated, “I firmly believe that because there is no financial consequence to their actions, Federal agencies are essentially able to escape responsibility when they fail to comply with the law and are unresponsive to their employees’ concerns.” But judgments are often paid through the central government’s corpus, rather than the agency’s budget. And, even when the agency indemnifies directly (which can be viewed as a means of de facto vicarious liability), the fact that the legal community continues to debate the effectiveness of such judgments or settlements intimates their ineffectiveness.

As the Breonna Taylor settlement underscores, the best way civil litigation can bring about police reform is to directly condition any settlement or judgment on the implementation of new policies. But the elimination of qualified immunity is not going to bring about more structural reform settlements. To do that, lawmakers would be better served addressing the barriers plaintiffs face when seeking injunctive relief under § 1983. In City of Los Angeles v. Lyons (1976), the Supreme Court established an onerous standing requirement for plaintiffs seeking prospective relief, holding that a plaintiff must demonstrate a realistic probability that he would again be subjected to the same mistreatment that he was complaining about in his lawsuit. The fact that police officers had engaged in similar practices in the past was insufficient, as was Lyons’s speculative fear that he would suffer a similar fate in the future. If Breonna Taylor’s estate representatives faced the same requirement when negotiating with the City of Louisville, they would not have had standing to seek structural reforms. The Lyons decision came on the heels of Rizzo v. Goode (1976), wherein the court cautioned that the principles of equity, comity and federalism must restrain district courts from interfering with state criminal proceedings. If future civil rights litigants seek the gold standard of civil settlements, their advocacy should focus on tackling the issues surrounding injunctive remedies rather than simply addressing qualified immunity.

The Accountability of Constitutional Tort Law

So where does this leave accountability for the individual officer? As a threshold matter, one must initially ask when an officer should be held accountable. Under traditional tort law, employers may be held liable under the theory of respondeat superior when their employees act within the scope of their employment. It is rational to believe that government employers likewise should bear the liability when their employees make well-intentioned mistakes or, worse yet, were directed to take action that was subsequently deemed unconstitutional. Yet, as noted above, this notion has been jettisoned in the constitutional realm under the guise of serving as a necessary check against the hefty authority bestowed on police officers.

As a result, some observers argue that the current system of suing the individual while having the agency pay the judgment (through indemnification clauses) is preferred. The individual is held accountable through the lawsuit while the benefits of vicarious liability are realized on the back end. All that is needed is the elimination of qualified immunity to allow for remedies for a broader array of constitutional infractions under the current remedial regime.

Accountability, in that regard, is shorthand for merely being subjected to suit. The theory that “it’s the ride, not the result” suggests that the spotlight resulting from the litigation is itself a suitable disinfectant. In practical terms, it is questionable how much more the individual would have to participate in the defense of the civil action when she is the direct defendant as opposed to a key fact witness in a claim against her employer for vicarious liability. In either scenario, the officer would likely be subjected to a deposition, and the document discovery would be focused on departmental policies and training undergirding the officer’s conduct.

Additionally, it is the very concern of subjecting well-intentioned officers to the burdens and stresses of litigation that has become one of the primary basis for qualified immunity. Courts have been directed to resolve the issue of qualified immunity at the earliest possible stage in litigation. Once the immunity is claimed, courts are instructed to resolve the issue before discovery commences in order to unburden defendants from the slog of litigation. Judgments denying qualified immunity are reviewable through interlocutory appeal, as the pervasiveness of discovery cannot be remedied on appeal after final judgment. Only a perverse legal framework would condemn faultless officers to face the crucible of litigation in order to achieve the benefits of vicarious liability.

This is by no means to argue that all police officers are faultless. But to completely abolish qualified immunity, without replacing it with a more limited immunity or establishing federal privilege law, is to remove any analysis of culpability or intent of the individual. Instead, it would place officers in the same position as municipalities, which are subject to strict liability. And, as it currently stands, vicarious liability is generally available for common-law torts (Federal Torts Claims Act and state tort actions) but unavailable for constitutional infractions. In my estimation, the distinction between constitutional torts and common-law torts is a poor barometer for determining whether the employer versus employee should be held accountable. Characterizing certain conduct as intentional versus negligent, assaultive versus excessive, ignorant versus faulty all miss the mark on whether the individual should be held personally accountable. Rather, the demarcation should stand not along the fault line, but at the point when the conduct approaches criminal. When an officer acts with malicious or evil intent or in callous disregard of the plaintiff’s federal protected rights, it should then rise to the level of precluding vicarious liability and demanding individual officer accountability. In civil actions, that conduct is addressed through punitive damages. Punitive damages are awarded “to 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? One method would be to allow for constitutional tort claims to be brought against municipalities through vicarious liability (with a single, uniform level of immunities or privileges), while still permitting claims for punitive damages to be brought against the individual officer. 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 behavior. Such a regime is already aligned with Supreme Court precedent that permits punitive damages against the individual officer but prohibits it against state and municipal entities. This would also prevent the subjective assessment of maliciousness to be subsumed in a broader, objective qualified-immunity analysis. One safeguard against the exception possibly swallowing the rule (that is, every plaintiff alleging facts that raise the specter of punitive damages) is the Iqbal pleading standard that requires significant plausible factual allegations. And, if necessary, limited jurisdictional discovery may be warranted to determine the officer’s potential culpability.

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. Indemnification is not covered under § 1983 and is governed by state or local law. However, most states traditionally apply respondeat superior liability only to compensatory damages, not punitive damages. For an employer to be liable for punitive damages based on an employee’s on-the-job misconduct, there typically must be ex ante authorization or ex post ratification of that conduct by the employer. A policy that allows for vicarious liability except for punitive damages strikes the proper balance between maximizing compensation, targeting deterrent impact and preserving individual accountability. Congress should therefore incentivize states to modify their indemnification statutes to no longer cover the award of punitive damages, regardless of their scope-of-employment analysis.

Disciplinary proceedings may also be triggered by the court awarding punitive damages. At the federal level, there is precedent for Congress using civil actions to mandate disciplinary proceedings against willful governmental wrongdoing. Under the Stored Communications Act and the Foreign Intelligence Surveillance Act:

If a court or appropriate department or agency finds that the circumstances surrounding the violation raise serious questions about whether or not an officer or employee of the United States acted willfully or intentionally with respect to the violation, the department or agency shall … promptly initiate a proceeding to determine whether disciplinary action against the officer or employee is warranted. If the head of the department or agency involved determines that disciplinary action is not warranted, he or she shall notify the Inspector General with jurisdiction over the department or agency concerned and shall provide the Inspector General with the reasons for such determination.

This provision attempts to give teeth to the often-maligned intra-agency disciplinary process. By requiring departments and agencies to initiate proceedings when they receive a court’s decision, the provision attempts to limit entities’ discretion in disciplining their own employees. The disciplinary review is launched automatically upon a finding by the outside arbiter that the employee acted willfully. Similarly, courts could play a larger role in initiating disciplinary proceedings stemming from civil rights litigation upon finding that “circumstances surrounding the violation raise serious concerns” that the officer engaged in conduct with malicious or evil intent.

Of course, any attempt to curtail state indemnification clauses or mandate disciplinary proceedings would not be without significant constitutional challenges. The extent to which Congress can incentivize states to prevent the indemnification of municipal officers, even when the officer acts with malice or evil intent, is likely a matter of degrees. Additionally, police labor and employment practices, including collective bargaining, civil service protections, and law enforcement officers’ bills of rights often serve as significant barriers to expedient and effective disciplinary proceedings. However, if the purpose of civil rights litigation is not merely to compensate and deter future offenses, but also to hold those who commit reprehensible offenses personally accountable, then more than merely eliminating the doctrine of qualified immunity is necessary. The legal community must think strategically and creatively about remedies law if there is any hope to achieve accountability through constitutional tort law. Otherwise, we are throwing good taxpayer money after bad.

Paul Stern is an attorney in Washington, D.C. His comprehensive reform proposals can be found in Tort Justice Reform, 52 U. Mich. J. L. Reform 649 (2019).

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