Katie Eyer

Almost everyone, it seems, is against qualified immunity. Progressive scholars, organizations, and judges have decried the doctrine for shielding unconstitutional conduct from liability, and have argued that its legal foundations are weak and misguided. Conservative and libertarian scholars and judges have also begun to attack it, for both its legal illegitimacy and its perverse effects. Even large swaths of the public have become familiar with the arcane doctrine of qualified immunity, and oppose its continued application.

There are many reasons to criticize qualified immunity doctrine, but it is clear that for many, a primary motivation is its connection to police violence. With the rise of the Black Lives Matter movement, and increased attention to the problem of police violence against the Black and brown communities, the doctrines that shield such violence from civil legal liability have come under increased scrutiny. Central among these is qualified immunity, which can require an almost absurd level of legal “notice” that even unnecessarily deadly uses of force are unconstitutional. It thus seems intuitively obvious that those who care about ending police violence should care about abolishing qualified immunity. But will ending qualified immunity get us any closer to the goal of ending police violence?

This is the question raised by Adam Davidson’s provocative piece, Procedural Losses and the Pyrrhic Victory of Abolishing Qualified Immunity. Davidson concludes that it will not; indeed, he contends that if anything it is likely to lead to a stickier and more damaging body of case law, one that finds police violence to be constitutional on its own terms. As Davidson puts it, “Quite simply, there is little reason to think that federal courts will be more open to civil rights plaintiffs without qualified immunity standing in their way.” Thus, the abolition of qualified immunity is likely to lead a larger number of adverse constitutional decisions on the merits—decisions that, as Davidson points out, would be considerably more damaging and harder to disrupt than a ruling on qualified immunity.

Davidson’s argument is a complicated one, but its core premises can be stated simply. The federal courts have never been especially sympathetic to police misconduct plaintiffs, and there are genuine reasons to be concerned that the recent influx of Trump appointees will exacerbate this tendency. Moreover, there is a substantial body of literature suggesting that courts tend to “equilibrate” to the level of rights enforcement they deem appropriate. To reach that balance, they will draw on whatever tools are available to them—whether preliminary (as with standing doctrine), procedural, or merits-based. Eliminating the procedural tool of qualified immunity is likely to push judges into the terrain of adverse merits and standing holdings. Because those adverse holdings would be largely constitutional in nature, they could not be reversed through the democratic process. These adverse holdings thus could be locked in for decades to come, especially because of the current progressive recommitment to stare decisis in the face of conservative attacks on precedents such as Roe and Grutter.

In light of these potentially perverse effects, Davidson urges advocates to reconsider efforts to abolish qualified immunity, and to devote their limited political capital to “raising the rights floor” for police misconduct through legislation. With respect to the former recommendation, he suggests that losses on qualified immunity are preferable to those on the merits, since they are less durable and easier to change. Thus, it may counter-intuitively make more sense to leave qualified immunity in place, so that advocates can “lose best” (i.e., in the least damaging way). On the latter front, Davidson points out that there are far more direct ways for those who care about police misconduct and violence to address those issues than by abolishing qualified immunity.

The latter point bears elaboration, since so much of our focus as constitutional law scholars is often on constitutional enforcement. In the area of police misconduct and excessive force, it is, as Davidson points out, far from clear that constitutional solutions are likely to be the most effective ones. This is partly because it is unrealistic to expect a federal judiciary that has been increasingly unreceptive to the claims of civil rights plaintiffs to dramatically shift course after the abolition of qualified immunity, especially given the recent influx of ideologically conservative Trump-appointed judges. But even shorn of qualified immunity, there are numerous other obstacles to the use of Fourth Amendment excessive force jurisprudence in reshaping policing practices. Indeed, if our experience with excessive force litigation teaches us anything, it is that constitutional litigation alone is insufficient to dismantle the serious, widespread, and systematic problem of police violence.

What, then, might better address problems of police use of force? This question is obviously a complicated one, and Davidson does not purport to afford it full treatment in this piece. But he suggests that direct efforts to “raise the rights floor,” and to redirect control of policing to the communities affected, are worthwhile places to start. As Davidson and others have pointed out, such efforts have already seen some successes. Many cities, for examples, have banned chokeholds or knee-on-neck maneuvers in the wake of the George Floyd killing. The work of other scholars, focusing on how political movements could shift resources and control away from police departments, provides numerous other ideas on where legislative reforms could be productive. And important work on police unions, training, and culture suggests yet other areas of important reforms.

Ultimately, I came away largely persuaded by Davidson’s argument that abolishing qualified immunity is unlikely to be the best use of the limited legislative reform capital of those who care about ending police violence. Simply put, its likely impacts are too remote when compared to more direct measures to justify making it a legislative priority, in a world in which the legislative will for change is finite. But I was less persuaded by his contention that we should affirmatively avoid abolishing qualified immunity (including, e.g., through judicial advocacy). After all, any use of force case necessarily involves getting past qualified immunity to reach the substantive constitutional issue. We cannot avoid rulings on the merits unless we want police misconduct plaintiffs to always lose. Just as important, if we let this moment of collective disapproval of qualified immunity pass, it seems unlikely that we will have an opportunity to revisit it soon. Qualified immunity has been with us for more than 50 years—though, as recent scholarship has pointed out, for less time in the excessive force context. It erects an insurmountable barrier for many excessive force plaintiffs (and other constitutional plaintiffs). If we have the ability to eliminate it through judicial advocacy, we should seize that opportunity now.

In the end, although I may quibble with some of Davidson’s takeaways, his core insights are no doubt important. Abolishing qualified immunity is unlikely to radically change excessive force practices on the ground. Indeed, as Davidson predicts, it may lead to even more merits losses for constitutional excessive force claims in the courts. If we wish to change police practices, we must, as Davidson puts it, change “who decides”—shifting that power from the federal courts to state and local legislatures or, even more radically, to those local communities most affected by policing themselves.