Do We Need Qualified Immunity?

Caroline Bryant: Well, hello everyone and welcome to this Federalist Society virtual event. My name is Caroline Bryant and I'm Associate Director of Practice Groups for the Federalist Society. Today we're excited to host this webinar on qualified immunity. Our moderator today is Robert McNamara. Robert serves as the Institute for Justice's Deputy Litigation Director. He helps guide IJ's overall litigation strategy while also litigating cutting-edge constitutional cases, protecting free speech, property rights, economic liberty, and other individual liberties in both federal and state courts. If you'd like to learn more about today's speaker, his full bio can be viewed on our website, fedsoc.org. After our moderator gives his opening remarks and our panelists give their remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window. We will do our best to answer as many as we can. Finally, I'll note that as always, all expressions of opinion today are those of our guest speakers, not the Federalist Society. With that Robert and other panelists, thank you guys for joining us today, and the floor is yours.

Robert McNamara: All right, thank you very much, Caroline. Thank you to all of you for attending. As mentioned, my name is Bob McNamara and I appreciate the Federalist Society's invitation To moderate this panel. I am joined by an all-star team of debaters leading off with Michael Perloff, the Interim Legal Director of the ACLU of Washington DC. A graduate of Harvard Law School and Brandeis University, Michael clerked for Judge John Fisher on the DC Court of Appeals and does litigation defending individual rights, protecting people in claims of racial discrimination as well as police misconduct. And on the other side, we have Chris Walker of the University of Michigan.

Chris's work has appeared in the California Law Review, the Duke Law Journal, the Georgetown Law Journal, the Michigan Law Review, and many other publications of similar repute. Chris has the unusual distinction of having worked in all three branches of the federal government and perhaps most importantly for this audience, In 2022, he received the Federalist Society's Joseph Story Award. In our preparation for this panel, I will warn you Michael and Chris have been threatening to agree with each other. So I want to put our panelists on notice that I expect a firestorm. I expect some disagreement, I expect some ad hominem attacks. I expect some cheap debaters tricks and I will hold you to that. But before we get to the panelists, I did want to spend a few minutes setting the stage for what we're here talking about, which is qualified immunity. Qualified immunity is perhaps the most controversial legal doctrine in modern constitutional law, and particularly in the past four years since the Black Lives Matter protests of 2020 qualified immunity seems to have been at the center of a lot of debates in this country about policing and police misconduct. And I wanted to talk a little bit before we started to set maybe a broader context for this debate than just police cases and police misconduct.

So qualified immunity gives individual government defendants who are accused of violating the Constitution two different categories of protection. There's a substantive and a procedural protection. Substantively, government defendants can only be held liable for violating the Constitution if they violate what's called a clearly established right, and a clearly established right in most cases means a plaintiff needs to point to a defendant who did exactly the same thing in exactly the same circumstances and was held to have violated the Constitution. Otherwise, a plaintiff is out of luck. The world is complicated so finding exactly the same thing in exactly the same circumstances is extremely difficult. But layered on top of that substantive protection is a procedural protection, which is that if qualified immunity is denied by a trial court at any stage of the proceedings and a motion to dismiss and a motion for summary judgment, the defendant gets a special interlocutory right of appeal.

And so what we wanted to know at the Institute for Justice in a study that came out earlier this summer is really how broadly does this doctrine sweep? And in a new study we released just a couple of months ago called "Unaccountable", we counted qualified immunity cases. We looked at the largest-ever dataset of appellate qualified immunity cases, every single one from 2010 through 2020 using predictive algorithms to parse the cases and figure out what was going on. I have promised my co-author data scientist, Jason Tiezzi, that I will stop telling people we invented a robot that reads appellate cases, but we kind of invented a robot that reads appellate cases. And it enabled us to read and review over 7,000 opinions over this 10-year period, and we found a few things that I would like to share to sort of set the tenor of the debate.

One is the nature of the claims that are being brought. I think a lot of the public debate over qualified immunity, the quintessential qualified immunity case in the public mind is a police officer who's accused of excessive force and asserts qualified immunity to get out of excessive force liability. And those are a good chunk of qualified immunity cases, but actually, only 23% of the cases in our dataset fit that description where it's a claim against a police officer accused of excessive force, and fully a fifth of the cases we reviewed included no police officer or even prison official defendants at all. So a fifth of them are totally divorced from the law enforcement prison context, and 18% of the cases we reviewed have a First Amendment claim. And actually, I'll confess, when we were putting this together, we were kind of skeptical of that statistic.

We thought 18% were First Amendment claims, but a lot of those First Amendment claims are actually going to be what people sometimes call "contempt of cop" claims where somebody mouthed off to a police officer, got arrested, and then brought a First Amendment claim in response. And so we sampled even within the larger dataset, those First Amendment claims, and over half of the First Amendment claims in our sample actually alleged a long premeditated violation of either free speech or free exercise of religion rights, not sort of a spur-of-the-moment mouthing off to government officials. So the claims are a little different from what you might expect from reading about qualified immunity in the newspaper. Another thing we learned was the volume of qualified immunity claims. There seemed to be more and more of them. There was a 20% increase in the total number of qualified immunity cases that the federal courts of appeals decided during our 10-year study period. If you divide it in half, there's a 20% jump in the second five-year group than in the first five-year group. And a big chunk of that volume does come from these interlocutory appeals. Roughly a third of the qualified immunity cases that courts of appeals are deciding are on interlocutory appeals from motion to dismiss, to motion for summary judgment, that's about 2,000 cases over 10 years. 

The third thing that is potentially related is we found that qualified immunity cases tend to last a long time, about 70% of qualified immunity appeals are summary judgment appeals, and you often hear qualified immunity, the defendant is saying "We need qualified immunity to protect government defendants from intrusive discovery. " Well, discovery has generally already happened by the time you get to summary judgment and 70% of QI appeals are at the summary judgment stage. And the other thing we found, which really is what struck home most for me as a litigator, is that qualified immunity cases are systematically older than ordinary civil cases. The median qualified immunity case we found had been pending for three years and two months by the time its appeal was decided. That's 23% longer than just the median civil case upon appeal. Now we can't prove that's because of interlocutory appeals slowing things down, but they are systematically older cases. And so there are a lot of things predictive algorithms can't do in reading cases. There are nuanced legal analyses that can't come out of this, but what they do really well is count - they tell us what these cases are, who's bringing them, who's defending against them, and what kind of claims are being brought. I was struck by that data that it's a little different from the typical discussion we hear, and I'd be particularly interested in hearing from the panelists how they think qualified immunity works in the real world and whether it can actually be defended as practically achieving the goals that its defenders often claim it achieves. And so with that admittedly somewhat self-promotional hook, I would love to turn things over to Michael and can you tell us a little bit maybe from the qualified immunity critic's perspective?

Michael Perloff: Well, thank you Robert for that introduction and for the information about that really important report and research. Hopefully, the algorithm you created will not put Chris and me out of work. Let me start by talking about how I think that - and we at the ACLU - think that government accountability should work in a form of analysis - I think this should fit well at a Federalist Society event - I want to go back to the founding in a case called Little v. Green. In that decision, a Navy captain seized a ship pursuant to an order from the President of the United States, but the order was unlawful. The president misinterpreted the statute, and so the owner of the ship sued and the Supreme Court held that the captain was personally liable for what in today's dollars would be $130,000 for the seizure. The fact that the president had authorized the seizure was no defense to the liability that was owed by that captain.

Compare that to where we are today, where in a Sixth Circuit decision, the court held that a police officer was not liable for using extreme force against a suspect because although there was authority holding that police couldn't - in this case actually releasing a dog on the suspect - because although there was authority holding that police could not release dogs on suspects who had surrendered when they were sitting up, his suspect was lying down. Or consider a Ninth Circuit decision that held that police officers who stole money could not be held liable under the Fourth Amendment because qualified immunity shielded them because there was no case law affirmatively establishing that stealing money violated the Fourth Amendment's precepts. What I want to suggest is that we go back to a regime that's closer to what existed at the time of the founding, one that doesn't have the existing obstacles that qualified immunity presents to achieving meaningful accountability. There are two primary reasons why I think that change is significant and worth investing significant political energy in pursuing - fairness and deterrence and better policy overall.

So let's start with fairness. The clearest example of the victims of qualified immunity are those who are harmed by the actions of government officials, not just police officers, but any number of government officials - social workers who may deprive a family of children based on a violation of their due process rights, students who may be in abusive circumstances caused by teachers who don't treat them fairly or suspend them in violation of due process rights, a host of other situations where people are harmed by government actors but often lack the recourse to obtain a remedy for those violations because qualified immunity shields what is, in fact, unlawful conduct but is not conduct that can give rise to any form of relief.

So those individuals clearly suffer a great deal of unfairness and in allowing qualified immunity to persist, the system forces those individuals to effectively subsidize municipalities and states for the unlawful actions of their employees. But the unfairness that arises from qualified immunity isn't limited to the victims of government misconduct. It also is a basic unfairness that affects all of us because, in almost any other context, defendants do not get the sort of protection that qualified immunity provides. In our tort system, when you are sued, a court can announce an entirely new rule, a rule that didn't exist before, and still hold the defendant liable under that rule. The fact that there's no clearly established law previously does not provide a defense. In our criminal legal system, you can be incarcerated even though you didn't know what the law was or the law was unclear. Mistake of law generally isn't a defense to criminal prosecutions.

In the context of government accountability, we have the paradoxical situation where a private employer who is facing liability for a Title VII violation in the employment discrimination domain is going to face a greater risk of liability than a government official who is engaging in very similar conduct and being sued for a violation of the Equal Protection Clause. So all of these unfairnesses show why this doctrine just as a principle shouldn't be one that we endorse. But there's also a consequentialist argument against qualified immunity because as qualified immunity currently exists, it allows municipalities not to have to bear the full costs of their employee's misconduct. While the relationship between cost and accountability is complicated and something that I hope we have the opportunity to discuss more today, when vast numbers of violative conduct go unremedied, that reduces the incentive for government officials to change the policy regimes that can result in ultimately preventing these types of outcomes from occurring. So if we reduce qualified immunity, we have the potential to let the tort system do what the tort system is supposed to do, create a deterrent, and create an incentive that results in better government for all of us. So that's why I would strongly suggest we work together. I think we have a lot of common interests at the ACLU and at the Federal Society. I think Chris shares many of these concerns as well to reach a point where we can eliminate qualified immunity and get back to a system where there can be more meaningful accountability for government misconduct.

Robert McNamara: All right, thank you very much, Michael. You ended with a conciliatory note. I will stress again, ad-hominem attacks and cheap debater's tricks. Chris, take us away.

Christopher J. Walker: Oh goodness. I think you're going to be so bored on that front. So I have to say I absolutely love this IJ report. I think it is super fascinating. Those of you on the webinar might remember after the murder of George Floyd, we saw kind of a huge push to narrow or eliminate qualified immunity. Some of that was directed toward courts, but it was also directed toward Congress. And one of the interesting features you saw as it worked its way through the House Dems is that they weren't going to get rid of qualified immunity entirely. I mean they really, really zeroed in on law enforcement officers. For a while, it also included prison officials, but I believe the final draft of the bill actually just limited it to law enforcement officers. And I think that's just a fascinating approach because if a court were dealing with this, and if the Supreme Court wanted to overrule it, you wouldn't be able to kind of - I don't think at least -make that kind of fine grain reform and say that we're going to keep qualified immunity for school teachers, other types of civil servants, but not for law enforcement officers.

And so you have this kind of really cool report now that says, or shows - which it doesn't surprise me - that in the data set of cases that IJ looked at, you have like 50% are law enforcement officers now again, another 20% are prison officials. And so that kind of maps onto I think pretty well what the House Dems were trying to get at. But then you still have another remainder of cases that really don't have anything to do with law enforcement or prisons at all. And as Robert mentioned at the outset, there's a huge chunk of First Amendment cases, although maybe some of those are dealing with prisons. So when I think about reform, and I think the reason that I'm on this call is if you Google "defend qualified immunity", I think I'm still the only one that's ever written a Law Review article on the subject - no, that's not quite true (laughs).

But Aaron Nielson and I do have a Law Review article, it's called "A Qualified Defense of Qualified Immunity" and in that, we argue that the Supreme Court shouldn't be the one that overrules qualified immunity, that if there are going to be changes, we should look to Congress, and in subsequent work we've also argued that states should really experiment under state law and state liability in ways to kind of eliminate qualified immunity or further narrow it. And I think the IJ report - and I'm curious if Robert would disagree with me - actually kind of does shed a little bit more light on that, if your concern is law enforcement overreach - and you may include prison officials in that category, in or not - and not other types of government actors. And I think on that front, Michael and I would disagree on the sense that when it comes to deterrence, some version of qualified immunity provides the kind of space for government officials to do their job and to do their job without fear of being held liable for good faith mistakes or when they act in an objectively reasonable way.

And if we get rid of qualified immunity entirely, I think you're going to see some under-deterrence, especially when you think of a lot of government officials that tend to be a little bit more risk averse. I'm thinking outside of the police context, but even in the police context, when they're having a choice to intervene and do something that would protect some rights or they would uphold the law and the qualified immunity does kind of provide at least some cushion there. Now the current version of it - and Michael went through some of the greatest hits of cases - some of those cases I say were just wrongly decided under qualified immunity grounds. Others I think are ones that when qualified immunity has gotten to its really strong version that are protected in ways that I think as a policy matter shouldn't be. And maybe we'll kind of talk about that more in the Q&A - where you draw that line if you're going to draw that line.

But I still think the biggest takeaway I have from the IJ report is that qualified immunity is not just about police officers and prison officials, it protects every executive - state executive actor. And in some cases that really matters in important ways. And I'll kind of end with one that I teach in my constitutional litigation federal courts classes - the case out of Washington. I mean there you have a school teacher who suspects that a child is being sexually abused by someone in the home and the school teacher and local law enforcement decide to interview the child without consent of the parent or without getting a warrant because they suspected that. And sure enough, the child says that the father was abusing her and they acted, right? After this, a Section 1983 lawsuit was filed against the teacher and the police officer saying that they should have gotten a warrant or should have asked the parents for permission to interview the child before they go along those lines.

And I think those are really hard trade-offs when you're a government official, especially a school teacher that sees a child that might be being abused at home, how you properly go forward. Eventually the Supreme Court found a way just to get rid of the case in ways that aren't interesting for our discussion. But I do think there are lots of situations where government actors have to either act to defend the rights of others or not act, and some version of qualified immunity provides space for that government actor to protect the rights of others or to otherwise execute the law that has been democratically created. So I kind of - in there - look forward to bouncing back and forth. Robert, you can tell me if I just completely misread your IJ study, but I did find it really fascinating. I definitely recommend it to everyone on the webinar to go give it a read.

Robert McNamara: All right, thank you both. We're happy to take questions from the audience. You can type them in the chat. We can see them on this end. But I do think Chris is right that what the IJ study really underlines is that qualified immunity isn't a doctrine about the police, it's a doctrine about the Constitution and specifically about whether we should enforce the Constitution, and we at IJ tend to say the answer is yes, that's why the Constitution is there. You should enforce it. But I think that is probably the correct frame for a qualified immunity debate. It's not what are your gut level feelings about law enforcement, but rather how much constitutional enforcement should the courts be doing? Are we in fact overprotecting the right to freedom of religion and overprotecting the right to free speech? I see very little evidence that we are, but I'm moderating.

And I do also think it's always struck me as a little bit of double counting to point to Fourth Amendment cases as a reason why we need qualified immunity because the Fourth Amendment of course already incorporates the idea that it protects us from unreasonable searches and to say government officials need some extra breathing space to act reasonably, it seems like it's already in the text and it seems like it's a little bit cheating to call those twice. But before we get to audience questions, I did want to just exercise moderator's privilege to underline a couple points with you guys and Michael specifically. Chris kind of makes the point that the solution to qualified immunity shouldn't lie in the courts, that it should lie in the legislature, in Congress and in state legislatures. And I tend to think it lies everywhere. We at IJ certainly do legislative advocacy as well, but I wanted to get your take on whose job is it to clean up qualified immunity? Who should be in charge here?

Michael Perloff: Well, I think that the responsibility for enforcing constitutional rights, as you said, Robert is a collective enterprise that belongs to all government actors. So I don't think it's just on the courts or just on Congress. I think that it should be a collective process. That said, I do think the court has an important role in qualified immunity because it created the doctrine. It really invented this in response to the rights revolution of the Warren Court era as a means of avoiding what it perceived to be excess liability. But the concept of qualified immunity is something that really is not required expressly by Section 1983. And certainly the way that it's currently being enforced by the Supreme Court goes way beyond anything that could possibly be justified under any sort of interpretation of Section 1983, which is the statute that provides a basis for enforcing constitutional rights against state and local officials.

And which is where the doctrine and the interpretation of that statute is where the doctrine comes from. So I do think the court has messed this up and has an important responsibility here. And it's also important to remember with respect to the court is that the aggressive version of qualified immunity that Chris was talking about is something that the court has really pushed on lower courts. There are a host of instances where the Supreme Court will reach out and take these qualified immunity cases and either summarily reverse them or rule that there needs to be a much lower level of generality in terms of the review than what the lower court did. And so the Supreme Court is really pushing for a wide swath of limitations on government accountability. And so I think it's the court's responsibility to clean up the mess that it created.

Christopher J. Walker: Just a quick, so when I talk about this, I mean I'm just referring to Section 1983 as state, not federal, we can have debate about this, I'm not suggesting Michael is either. And so when it comes to section 1983, and Aaron and I have kind of articulated in our Notre Dame essays, it's a precedent in the United States that's been around since the sixties. It's been repeatedly reaffirmed. I could give you my whole stare decisis - statutory stare decisis take. I will say I made the exact same argument to defend Chevron, and that didn't work so well this term. I do think qualified immunity is a little bit different than Chevron on that ground. But I do agree with Michael that the court does have tools already, even if it doesn't overrule qualified immunity. And I think hopefully Pelzer is one tool that I wish the court used more.

So in Hope, Justice Stevens for the court kind of said, "You don't have to have a case that's on all fours" because a lot of these cases, especially in the excessive force context, really do turn on very fact specific inquiries. And you saw in Hope this kind of idea of no, no, no, it doesn't have to be on all fours. There has to be enough prior precedent to put the officers on notice. And I think you've seen the court apply that a couple times in recent years, the facts were absolutely beyond heinous. You can't imagine, they were putting an individual in a cell full of feces for an extended period of time or attaching someone to a hitch post in a prison in ways that you just wouldn't think that would be remotely within the scope of objective reasonableness. But the Fifth Circuit said, "Hey, we can't find a case on point." And the Supreme Court, wrote in this case and said "The reason there's not a case is because no officer would ever think this is remotely constitutional." So I do think you have that, but they could push that a little bit further along those lines. But I still think that ultimately these types of policy decisions when it comes to Section 1983 really should be left to Congress to sort through, especially because we have not just officers, police officers involved, but also other types of executive officials that I don't think Congress wants to lose that shield of immunity.

Robert McNamara: And so kind of on that, and one of the first questions from the audience is about how qualified immunity intersects with Section 1983. And it does seem, Chris, if we're going to say Congress has to act, Congress did act in adopting Section 1983, which as originally codified imposed liability, notwithstanding any common law defenses to the contrary. So it seems like asking a divided Congress to act again is maybe unfair. And I understand your argument is about stare decisis and stability, but my question for you following up on the audience question is how much work are we getting out of stare decisis instability if what we have in practice is a system that says qualified immunity requires a case be exactly on point, except periodically the Supreme Court will grab an especially egregious one and say, "Except for this one!", it doesn't seem like a super stable or predictable rule of law, which is what stare decisis is supposed to give us. So how do you square this?

Christopher J. Walker: Yeah, I mean I do think when it comes to interpreting statutes, I don't know many people that would argue that you don't interpret the statute against the common law backdrop that existed at the time. So in other words, when there's a criminal statute and there's no insanity defense, we incorporate backdrop principles including defenses. And so when it comes to Section 1983, there's no defense in the statute itself. There's also no evidence that it meant to get rid of absolute immunity for judges or legislators or the like, so I think that's kind of a similar thing here. You have to figure out, well, what immunities did executive officers have at the time of the Civil Rights Act's enactment? And I think it's a hard question. They did not have what we have today, Robert, like you said, not this "Find a case on all fours and only cases on all fours", and that's a very supercharged version of immunities.

But they did have immunities, Congress recognized immunities for some officers in some of the cases, Will Boag kind of did a study and said, "I don't find anything." Aaron and I in our essay are like, "Eh it's a lot. It's messier than that." And then more recently, Scott Keller's done a study where he is like, "Well, they don't have an objective reasonableness standard" that Robert was just mentioning, but that subjective reasonableness one seems to actually be circling throughout a lot of the cases in the common law before. So I think it's a hard question. If it were like a trial de novo, I'd say qualified immunity, probably - just like Chevron deference - probably wasn't the backdrop principle against which Congress legislated. But I think when you've got 60 years of precedent and 60 years of congressional action and inaction that the best place to go is back to Congress. But you're at IJ, I'm just kind of this old, fuddy-duddy judicial conservative that thinks the law should move slowly and the like. There aren't many of us left. But I do think the courts play a different role than Congress does when it comes to policy judgments.

Robert McNamara: I just appreciate it. And I think the big takeaway for a Federalist Society audience is that Chris says, if you wanted Chevron overruled, you should want qualified immunity overruled as well. (laughs)

Michael Perloff: I think that the Chevron case actually is helpful because Justice Gorsuch in a concurrence there gave a much narrower conception of stare decisis than I think we're used to. And so if you start looking at how this Supreme Court understands stare decisis, it suggests much more room for revising the qualified immunity precedents and going back to the first principles that governed when 1983 was in place, which I agree with Chris, is a complicated historical issue. And so whatever your policy views, as a legal matter, it's trickier. And so that leads me to really two conclusions. One is that at minimum, the Supreme Court is way above its skis - beyond its skis - when it's enforcing this - as Chris said - like this turbocharged conception of qualified immunity. That is clearly not something that the enacting Congress intended. But also when we think about the right way to design our executive governmental enforcement regimes, the Supreme Court has to do its job, but Congress also has to do its job and so do state and local legislatures. There's a lot of really important literature about the way that even when governments are found liable, there still isn't as much of a deterrence effect as needed because the actors that caused the constitutional violations don't actually pay the price for the civil judgment. So there's levels of change that need to happen for civil litigation to be effective, both in terms of the Supreme Court's application of what Congress has done, Congress's reforms, and also the actions of state and local officials to make sure there's actually a deterrence effect when someone is found to have violated people's fundamental rights.

Robert McNamara: And speaking of those levels of review, one of the other questions we have from the audience is that in these states that have adopted reforms rolling back qualified immunity just for the stage, and I know there've been important reforms in New Mexico and in Colorado, is anyone crying out to repeal those? Has anything gone wrong? Has there been a backlash? Or are they great?

Michael Perloff: I am interested. I took a look, at least at what was going on in Colorado. I did a brief Westlaw search to see any cases that had applied the Colorado statute, and I found very few. So I think that it's probably too early to fully assess the impact of those regimes. That said, the fact that there have been only a limited number of cases cuts against some of the maximalist concerns that eliminating qualified immunity as those statutes did is going to lead to a glut of plaintiff's attorneys bringing frivolous cases. It doesn't seem as if that's happening. And the other thing I would just say in that context is that it's important to remember the way that qualified immunity also skews people's ability to seek justice on their own. We had a project at the ACLU where we were going to encourage people to file small claims cases for instances of police misconduct that might be low in monetary value but have significant dignitary costs. And we ultimately had to stop that program because what we realized is that the city defendants are going to raise qualified immunity and a pro se litigant just can't do the type of research that's necessary to bring a case. So there's also this skewing effect in people's access to justice beyond their ability to even obtain a remedy. They can't even get their day in court because the doctrine is so complicated.

Christopher J. Walker: That's really interesting. I don't know enough, I think it's too early to tell how the state's programs are working out, but I do like the different innovations, especially like Colorado has done, trying to shift who pays for what and things like that.

Robert McNamara: And speaking of who pays for what, another of our audience questions asks, "With the backdrop of studies like those conducted by Joanna Schwartz who finds that officers are often, in fact nearly always indemnified for civil liability, does that indemnification answer the sort of chilling effect on government officials that you're worried about Chris, or are people in your view still being chilled even if fully indemnified?"

Christopher J. Walker: Yeah, I mean it's interesting. I think the debate about - and Michael kind of hinted this too - should they be indemnified or not? I think in the anti-qualified immunity world, I think it's a really fascinating debate, and I know at least some think that officers should pay for this individually and others, I think Joanna Schwartz is definitely in that camp, "Just indemnify them, make cities pay, we care about compensation." And then others, I think, I don't want to, Clark Neely's probably more in the camp of making officers have a little bit at stake in these cases. But no, I think it still matters to officers. I mean officers names, they're the ones who are sued. If it gets to a jury, they're the ones that are on trial. The jury doesn't know about the indemnification. So I do think that if you ask an officer, they're going to still be worried about being sued and what that will look like for their lives and the like.

But they usually, at least in large police departments - because Joanna Schwartz's study focused on large police departments - they're not going to be as worried about losing their homes over it. I do think Joanna, Professor Schwartz has mentioned though that her concerns aren't necessarily the same when it comes to smaller, more rural police departments. How that kind of plays out there, and indemnification schemes as Aaron and I show in our Georgetown piece really do vary by state and by municipality in ways that I'm not entirely confident that if you did a full study of indemnification, that you would find anything close to the 99% rate that Professor Schwartz finds in her study. Michael, do you think it doesn't matter to officers? I'm curious. Even if they are like 99% sure they're going to be indemnified, do you think it still doesn't? I'm kind of curious if others have a reaction to that?

Michael Perloff: So it's an interesting question. I don't have a sense from officers exactly how they might perceive things, but I do think that the question of indemnification and civil liability needs to be framed in the broader context of accountability generally. And so if you're an officer and you work in a police department where you're indemnified and you are given a quota for the number of guns you're supposed to get off the street, and that's going to determine your promotions, as we've seen in police departments throughout the country, your incentives on a day-to-day basis are much more toward an aggressive approach to policing because just from a sort of personal welfare standpoint, you're not going to really feel that civil liability penalty in the way that you're going to feel the failure to meet your quota, which might cause you to lose your job or lose out on employment opportunities.

There might be cultural effects that shape how people perceive you in terms of the department. So I think that the ultimate responsibility of constitutional enforcement can't be left to tort claims. It's again, it's a holistic process of how we structure our governments and - I work primarily in DC - I can say that DC doesn't have particularly meaningful accountability for police misconduct. I think that's true across the country. So again, this question of enforcing constitutional rights isn't just on the courts, it's also on local governments to make sure that they're designing the incentive schemes within their police departments, within their schools, within their social worker offices, so that people are facing the right incentives to uphold their constitutional obligations.

Robert McNamara: One interesting thing I want to drill down on a little bit is sort of Chris's flagging of just the dignitary interests or the stress interest in not being sued - that the officer is named as a defendant, that there's this case hanging over their head even if they're going to be indemnified. That's probably true, but it strikes me that that's true also, even if they know they're going to be protected by qualified immunity. And if we're talking about qualified immunity as a policy matter, which is I think really the only debate, even Scott Keller doesn't say there's a common law defense for modern qualified immunity. It's a judicial invention justified by policy reasons. But if the policy is to try to protect government defendants from these dignitary or psychological problems, and if it's in fact true, the net effect of qualified immunity is to make these cases last longer - to make them pinned in the courts for even longer than they would ordinarily, are we actually making things worse by having these long drawn out multiple appeals where the individual defendant spends a lot longer as a defendant with this hanging over their head, is qualified immunity actually counterproductive and maybe is qualified immunity over-deterring on that basis, Chris?

Christopher J. Walker: No, I mean, I think that when you're thinking about qualified immunity, it weeds out a lot of cases before they've even filed. It weeds out, I mean, Joanna Schwarz has done a study - tried to do a study, I don't buy it - I mean, you talk to any plaintiff's attorney or government lawyer, and it does. And it also weeds out a lot of cases in the motion to dismiss the summary judgment stage so it never gets to a jury. So it definitely has a tempering effect on how often an officer is going to be sued, especially when an officer is closer to the line of not doing anything wrong. And ultimately the cases that I care most about is when the officer did nothing wrong. And qualified immunity is a way of really sending a message that there shouldn't be lawsuits unless you have constitutional wrongs. I think it does make a big difference on the ground.

Maybe too big of a difference though, right? I'm not going to - that's kind of - there's earlier work by Reuters and others asking is it weeding out cases that it shouldn't weed out? Is it discouraging meritorious claims from at least getting to court and the like? And I think those are big questions, but I do think it plays a really important role because your study only looked at appeals too, right? That's right. So you're talking about only when the government official lost usually, or I guess if the plaintiff lost, but yeah, so that's a different kind of metric than trial court decisions.

Robert McNamara: Do you think we're over-deterring, Michael?

Michael Perloff: I really don't. And again, I think that most of the time the incentive regime that officers are focused on is not the tort system. It's what's happening in their department. It’s that teachers are focused on what's happening with their colleagues, how their relations are with their parents and their students. And a lawsuit is always going to be a much less common event than a workplace consequence because most people who are harmed don't have the resources to find a lawyer, and don't want to go through the hassle of litigation. And so the real determination as to whether or not people are going to uphold their constitutional obligations is ultimately going to be what's happening in their work environments. And so I don't think that reducing, eliminating qualified immunity is going to over-deter as long as there are countervailing incentives, which I think all the points Chris is making show that there will be, because the public - which ultimately is the one that these officials are responsive to in some way or another - want there to be some level of government fulfilling government's role.

So they're going to require that. That's why in all of these jurisdictions, even when a police department is held liable and theoretically the money could come out of its budget, the city will still increase its budget to make sure that it has enough money to do what the public wants it to do. So the ultimate accountability is going to come from reforming how the public perceives the level of service it wants from changing workplace norms. The question with civil liability is can we use that as a tool to move us closer toward that? Can we use it as a tool to put pressure on the government to reform the norms in the workplace, use it to shed light on government abuses and change the public's perception of what type of government it wants? That's the real function of civil liability. And in that context, qualified immunity does a great disservice.

Robert McNamara: So there are a couple of substantive questions I want to make sure we get to. Just in fairness to the audience, several attendees have, and this is probably inevitable in any legal event that talks about immunity, have asked about the difference between qualified immunity and the immunity the court found in the Trump case. Chris, do you want to tell us how those are different?

Christopher J. Walker: Oh man. I mean they're completely different. Everything's different there. I mean, the Trump case is about immunity from even being hauled into court, period if you're the president acting in official capacity, qualified immunity just deals with an immunity from monetary liability, you can always still sue an executive officer to stop them from doing something. Well, always you have standing, everything else right? But objectively it's not part of qualified immunity. It really is a much, much more limited immunity than you have for presidential immunity

Robert McNamara: And the other -

Christopher J. Walker: That's all I want to say about it!

Michael Perloff: (Laughs)

Robert McNamara: Nobody likes getting the question, but you have to give people what they want, Chris. 

Christopher J. Walker: The other thing is the Trump case will have no implications at all for qualified immunity. There are a few questions similar like how will - it just won't intersect at all with qualified immunity.

Robert McNamara: Yeah, no, they both use the same noun.

Michael Perloff: I will say I think that it does reflect a conception in the current Supreme Court about the level of accountability that we want for executive office holders. So there's been a large push among the anti qualified immunity bar to try to get the Supreme Court to overturn qualified immunity based on a concurrence that Justice Thomas wrote a few years ago. And I think this decision puts some cold water on those efforts because it raises the question of how much the court really is invested, what the role, the court seems to be much more concerned with the sort of values underpinning qualified immunity than I think proponents thought, and maybe even the court was in 2020 when a lot of these efforts were really at their peak.

Robert McNamara: I don't know. I will confess to being more in Chris's camp than yours. I honestly don't know that the Trump case tells us anything about qualified immunity. I hope it doesn't tell us anything about qualified immunity, which is just, they're different contexts, they're different doctrines. But the other substantive question I wanted to get to is there's a question in the chat about the difference between qualified immunity, prosecutorial immunity, judicial immunity. Michael, can you run us through the differences and tell us are all of them nonsense?

Michael Perloff: This is a context where there is more relationship between prosecutorial immunity, judicial immunity, and qualified immunity in that these are sorts of common law doctrines that the Supreme Court has held to be incorporated into Section 1983 by applying basic principles of statutory interpretation. And the difference between prosecutorial immunity, judicial immunity and qualified immunity is the degree of protection they afford. So prosecutors are absolutely immune for actions taken in their prosecutorial capacities. Judges are absolutely immune for actions taken in their judicial capacities. Other government officials receive qualified immunity, which means that they're only immune if - they are not immune for instances where the violation of a right that's clearly established. 

So there's a lower degree of protection for most officials than there is for judges and prosecutors. Now, I think that certainly in the context of prosecutorial immunity, we've gone way overboard and we see all sorts of prosecutorial misconduct that cannot be addressed because of this absolute immunity, all sorts of abuses that happen. And I think the same sorts of arguments that you would make against qualified immunity apply with equal force against prosecutorial immunity. Judicial immunity I think is a little bit more complicated because you have to think about the impartiality of the judges and the incentives that it might create. So I would want to, my instinct's a little bit more nuanced there, but I do think serious reform to prosecutorial immunity is warranted.

Robert McNamara: All right. We are closing in on the last question. This is either the last or the second to last depending on how quickly we get through it. But the next question is about how courts require such a narrowly described constitutional right. And Chris, I'd be particularly interested in your thoughts on this. You've said a couple times you want the court to do more to expand sort of the Hope obviousness exception, but it seems like yours and Aaron's defense of qualified immunity very much sounds grounded in the idea that there should be some kind of "good faith immunity", that officers who made a mistake in good faith should be given a little bit of leeway, which doesn't seem to map on to the current clearly established "Find a previous case on all fours" test. Do you - even as a defender of qualified immunity - think we should be abandoning the clearly established test and just returning to some kind of good faith immunity?

Christopher J. Walker: I could say the court entertaining that - that does get back to Scott Keller's article. He looks at it, he does find more of the subjective intent approach where, so for a while the court said you can overcome qualified immunity either by showing that the officer's not objectively reasonable, which is kind of what we're talking about already, like find cases that show that, or that they were subjectively unreasonable. And in that situation, the officer may not have actually been violating the Constitution, but they intended to violate the Constitution. So think if an officer's wearing a camera and it shows that they're yelling at someone and saying, "I'm doing this", whatever, and that I think is a development, and I think this is similar to Devon's question in the chat, that would get a lot more cases to a jury trial, or at least it'd get a lot more cases out of the motion to dismiss stage and into summary judgment because you'd be able to kind of argue that regardless of what the case law says, this particular officer was trying to use excessive force in that. And I think as a policy matter, that's a good development, should the court do that itself. I think it's a little bit harder. That case has been around for 40 years now, but Chevron's also only 40 years old, so I don't know. But I do think that's a much narrower approach. And if you buy Scott Keller's argument, that's also more consistent with the original understanding of section 1983. It would get a lot more cases further along in the process.

Robert McNamara: You referenced Devon Watkins' question in the chat, but the other half of that is why more of these shouldn't be determined by a jury in the first place. And if we're going to talk about common law remedies, it seems like the modern federal judiciary is very concerned about resolving things in the appellate posture on the papers. But at common law, nearly all cases would be decided by 12 people in a box deciding what their community standards were going to be. Why isn't that a more advantageous system than having appellate judges second guess these decisions in the abstract?

Christopher J. Walker: Yeah, I think what you have though is on the immunity front, sure, whatever, let juries decide whether someone actually had, if there's enough evidence that they had bad intent. But you still have to be able to show the constitutional wrongs as well. And that oftentimes is not going to be something that - maybe Devon is saying also the martial excessive force determination should be made by a jury. But I think what you'll see in a lot of these cases, if we reintroduce the subjective intent approach to qualified immunity, you'd have cases surviving the motion to dismiss, and then at summary judgment, the court might just find there's no constitutional violation.

There wasn't excessive force. And for the reasons you mentioned at the outset of the webinar, that the courts already have a very, very pro defendant view when it comes to excessive force built into the substantive standard and qualified immunity really just provide a double reasonableness weight. And so I think that's kind where you're at. And maybe Devon's response would be to say "Even that should be going to the jury", and it's pretty outside my areas of expertise at that point. This is a weird tension between Jarkesy and Loper bright. Jarkesy is saying, "We need to let the jury have it." - and it's not really intended - Loper Bright's saying "Judges need to say what the law is." and so, I think ultimately this court would at least say that when it comes to purely legal questions that the judge is the one that needs to decide that, not the jury.

Robert McNamara: All right. Final closing thoughts, Michael?

Michael Perloff: Well, I'll just say I've really enjoyed the chance to talk with both of you and also all the great questions that we've had today. I think the IJ study - to start with where we started and I think it is where we should end - because it shows, as Robert said, that this is not just a question about policing. This isn't just a question about prisons, although those are important contexts. This is a question about constitutional rights enforcement and do we want to have a system that allows us to get meaningful accountability for serious violations of people's rights? Do we want to have a system that allows people to be able to bring claims without having a Westlaw subscription? Do we want to have a system that allows there to be an appropriate balance between the rights of people to hold their government accountable and the rights of people to have meaningful government services? I think if the answer to those questions is yes, then qualified immunity needs not only to be seriously reformed, but also scrapped. And that's a project that starts with really all of us in terms of what we do with our communities and the advocacy that we pursue in terms of thinking about the type of justice system we want to build.

Robert McNamara: All right. And closing thoughts from Chris, which you can feel free to also make about how cool the IJ study is.

Christopher J. Walker: Well, I was going to say, I think that the IJ study does underscore that qualified immunity is about more than split-second decisions made by police officers. It's about decisions made by public school teachers, by social services workers, by all sorts of different government actors. And I wish we had more time to talk about that because I think one gut reaction is if it's a split-second decision, there should be more deference or more immunity. I don't know if I love that idea if I'm on the side of a road, a dark road in the middle of the night and I've been pulled over, and I would be even more fearsome about other people in that situation. So I mean, I think there's a weird dynamic there. I mean, my gut reaction is that the public school teacher probably should get more deference than the police officer when they're making good faith mistakes. And your study kind of indicates that maybe the one-size-fits-all approach to qualified immunity reform isn't the right one. So I'll leave it with that.

Caroline Bryant: Great. Well, on behalf of the Federalist Society, I want to thank our speakers for the benefit of their time and expertise today. Thank you also to the audience members who joined us. We greatly appreciate your participation. Check out our website fedsoc.org or follow us on all major social media platforms @FedSoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in. And with that, we are adjourned.