JOANNA C. SCHWARTZ is a professor of law, core faculty member of the David J. Epstein Program in Public Interest Law and Policy, and affiliated member of the CRS faculty whose teaching and scholarship focus on police accountability and public interest lawyering. Co-author of the leading casebook Civil Procedure (Aspen), she is a nationally renowned expert on police misconduct legislation. She joined the UCLA Law faculty in 2006, and the empirically based works that she has produced during the past decade, including the seminal 2014 NYU Law Review article “Police Indemnification,” have been relied on by courts, scholars and the general media as touchstones in the field.

We are in the midst of a national conversation about police violence and paths to reform. Videos of Black men beaten or killed by police have filled our screens for decades. But, somehow, this moment feels different. In congressional hearings, at city council meetings, in the pages of newspapers and at kitchen tables across the country, people are, perhaps for the first time, asking fundamental questions about the role police should play in our society, the power they should have and the best tools to hold police accountable when they abuse that power.

A critically important part of the conversation is whether to reform or abolish qualified immunity. Qualified immunity is a defense, created by the Supreme Court, that shields police and other government officials from liability unless they violated “clearly established law.” Although the definition of clearly established law has changed over the years, the Supreme Court’s recent decisions suggest that the plaintiff must identify a circuit or Supreme Court case holding virtually identical conduct unconstitutional. 

Every year, there is a steady stream of opinions issued by the Supreme Court and lower courts around the country dismissing claims against law enforcement officers who have engaged in egregious behavior. There is the case against the deputy sheriff who shot a 10-year-old boy in the leg while trying to hit his unthreatening dog. The case against the officer who slammed a woman to the ground when she walked away from him. The case against the deputies who kneeled on a mentally ill man for 14 minutes, until he died. In each of these cases, courts dismissed the plaintiffs’ claims — not because what the officers did was constitutional, but because there was no prior court decision with sufficiently similar facts that clearly established the law.

Advocacy groups, congresspeople and federal judges across the political spectrum have called on the Supreme Court to end qualified immunity — arguing that the doctrine has no legal basis, fails to achieve its intended policy goals and undermines police accountability. But defenders argue that ending qualified immunity will have catastrophic effects: Courts will be flooded with frivolous lawsuits, officers will be bankrupted for reasonable mistakes and no one will agree to wear a badge or uniform. 

Would ending qualified immunity pry open courthouse doors to people whose rights have been violated, and punish officers who have violated the law? Or would ending qualified immunity flood the courts with frivolous suits, bankrupt police officers and local governments and discourage anyone from ever agreeing to wear a police uniform?

Having studied the impact of qualified immunity doctrine on civil rights lawsuits around the country, I think that both perspectives are overstated. Defenders of qualified immunity argue that eliminating the doctrine will result in a massive influx of cases that will subject officers to personal financial liability for reasonable mistakes. But my research shows that there are many other barriers that weed out weaker civil rights claims. For one, the Fourth Amendment already protects officers who act reasonably; the Supreme Court’s test for a Fourth Amendment violation is whether the officer’s conduct was reasonable under the circumstances. Qualified immunity, layered on top of that standard, protects conduct that was unreasonable but not “clearly established.” And even when officers are found liable, my research shows that they virtually never pay anything toward the settlements and judgments entered against them: In 81 jurisdictions, over a six-year study period, officers were personally responsible for just 0.02% of dollars paid to plaintiffs in police misconduct suits. In most parts of the country, an officer is more likely to be struck by lightning than he is to pay to resolve a civil rights case. 

But it is also wrong to conclude, based on this evidence, that eliminating qualified immunity would have no meaningful effect on police accountability. I have found that, because qualified immunity is a complicated doctrine to learn, and expensive and time-consuming to litigate, eliminating the defense would streamline civil rights litigation for the parties and the courts. It would also focus attention on what should be the critical issue in these cases — whether government officials violated the plaintiffs’ rights. Eliminating qualified immunity would mean that courts could clarify the scope of constitutional rights, which would give more guidance to police departments as they craft their policies and trainings. Finally, eliminating qualified immunity would stop the stream of court decisions denying plaintiffs relief and sending the message that officers can violate people’s rights with impunity, and that their rights do not matter. 

It’s not a silver bullet, but ending qualified immunity is one of the most important and wide-reaching first steps that Congress, the Supreme Court or state governments can take to improve police accountability. And doing so would not have the cataclysmic effects that defenders of the doctrine fear.