General

An explanation of qualified immunity.

Wex Law Dictionary, "Qualified immunity", Legal Information Institute at the Cornell Law
School, https://www.law.cornell.edu/wex/qualified_immunity
Qualified immunity balances two important intereststhe need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably. Pearson v. Callahan (07-751). Specifically, it protects government officials
from lawsuits alleging that they violated plaintiffs rights, only allowing suits where
officials violated a clearly established statutory or constitutionalright. When
determining whether or not a right was clearly established, courts consider whether
a hypothetical reasonable official would have known that the defendants conduct
violated the plaintiffs rights. Courts conducting this analysis apply the law that was in force
at the time of the alleged violation, not the law in effect when the court considers the
case. Qualified immunity is not immunity from having to pay money damages, but
rather immunity from having to go through the costs of a trial at all.
Accordingly, courts must resolve qualified immunity issues as early in a case as
possible, preferably before discovery. Qualified immunity only applies to suits against
government officials as individuals, not suits against the government for damages
caused by the officials actions. Although qualified immunity frequently appears in cases
involving police officers, it also applies to most other executive branch officials. While
judges, prosecutors, legislators, and some other government officials do not receive
qualified immunity, most are protected by other immunity doctrines. Recently, in Pearson v.
Callahan (07-751), the Supreme Court held that courts considering officials qualified
immunity claims do not need to consider whether or not the officials actually violated
a plaintiffs right if it is clear that the right was not clearly established.

Recent Supreme Court decisions have made it more difficult to sue police officers.
Rebecca Buckwalter-Poza & Nina Totenberg, "Supreme Court Upholds Law Enforcement's
Qualified Immunity", NPR, 05/27/2014, www.npr.org/2014/05/27/316484853/supreme-court-

upholds-law-enforcements-qualified-immunity
In two decisions handed down Tuesday, the Supreme Court made it more difficult for
citizens to sue law enforcement officers for their conduct. Both decisions were
unanimous. The central issue in both was the doctrine of "qualified immunity," which
shields public officials from being sued for actions that fall short of violating a clearly
established statutory or constitutional right. Perhaps the more dire case involved a
high-speed chase and the death of the driver and passenger at police hands. In what
the court conceded were tragic circumstances, West Memphis, Ark., police pulled over
Donald Rickard for driving with only onefunctioning headlight. When police asked him
to step out of the car, he insteadfloored the gas pedal, swerving through traffic at high
speeds. Minutes later, he spun out in a parking lot, and again sought to take off, narrowly
missing a police officer.Police fired three shots at the fleeing Rickard, but he again did
not stop. When he finally crashed the car, police fired 12 shots into the vehicle,
resulting in the death of Rickard and his passenger. Rickard's daughter sued police for
using excessive force. In an opinion authored by Justice Samuel Alito, the court
concluded that the use of deadly force to end a dangerous high-speed chase was
constitutional and did not violate any statute. As a result, the police were immune
from suit.

Breaking departmental policy does not cause police officers to forfeit their claim to
qualified immunity.
Kimberley A. Koester, "Violations of Internal Policies Do Not Equate To Constitutional
Violations", Chapman Law Group, Mar 9th, 2015 // 42 U.S.C. 1983, Correctional Law, FAQ
Cooper v. County of Washtenaw, 222 Fed. Appx. 459, 468 (6th Cir. Mich. 2007)stated
that the Supreme Court has been cautious to draw a distinction between behavior
that violates a statutory or constitutional right and behavior that violates an
administrative procedure of the agency for which the officials work citing Davis v.
Scherer, 468 U.S. 183, 194, 104 S. Ct. 3012, 82 L. Ed. 2d 139 (1984) (stating the Supreme
Court has held that officials do not lose their qualified immunity merely because their
conduct violates some statutory or administrative provision.) The issue, therefore, is

whether the governmental employee involved violated the Constitution and not
whether discipline is order for violating an order or procedure of the local
government. Washington v. Starke, 855 F.2d 346, 350 (6th Cir. 1988), looked at a
qualified immunity issue for a police officer who allegedly violated a departmental
regulation. The Court stated: The purpose of the regulation was not to prohibit the
use of deadly force, but to offer guidelines and criteria for officers to use in their
determination of when deadly force was proper. While the officer in question may have
been subject to intra-departmental disciplinary action, his action did not constitute a
wrong recognized by federal or state law. Therefore, violation of the regulation does
not preclude the application of qualified immunity to the individual officers.
(Emphasis added)

Trust between communities and police departments is key to public safety.

US Department of Justice, "Importance of Police-Community Relationships and Resources
for Further Reading", Community Relations Services Toolkit for
Policing,https://www.justice.gov/crs/file/836486/download
Strong relationships of mutual trust between police agencies and thecommunities they
serve are critical to maintaining public safety and effective policing. Police officials
rely on the cooperation of community members to provide information about crime in
their neighborhoods, and to work with the police to devise solutions to crime and
disorder problems. Similarly community members willingness to trust the police
depends on whether they believe that police actions reflect community values and
incorporate the principles of procedural justice and legitimacy. In the wake of recent
incidents involving police use of force and other issues, the legitimacy of the police
has been questioned in many communities. Many cities in the United States experienced
largescale demonstrations and protest marches in 2014 and 2015, and in some
cases, there have been riots over perceptions of police misconduct and excessive use
of force. It is imperative that police agencies make improving relationships with their
local communities a top priority.

The Supreme Court has demonstrated a commitment to protecting police officers,

who have to make tough life-changing decisions, from liability with qualified
immunity.
Mike Callahan, "Protecting cops from frivolous lawsuits: Qualified immunity, explained",
Policeone.com, 04/29/2016
The Supreme Courts decisions in Brosseau and Mullenix are significant for several
reasons. First, they once again demonstrate the Courts continued determination to
give police officers the benefit of doubt when reviewing their split-second life
changing decisions from the entirely safe contours of judicial chambers. Second, they
reaffirm the Courts willingness to use the qualified immunity defense to adjudicate
police use of deadly force cases at the pre-trial stage of litigation and spare officers
from the monetary and emotional burdens of protracted discovery and trial.
Third, they demonstrates the extraordinary value of the qualified immunity defense to
police officers who use deadly force in the performance of their duty, even in cases
where the need for such force was not absolutely clear cut and obvious. These cases
were by no means slam dunkvictories for the involved police officers. Nonetheless, the
Supreme Court evaluated the efficacy of the officers assertion of qualified immunity in the
particular circumstances of each case and ruled that their conduct did not violate clearly
established law. The value of the qualified immunity defense to law enforcement
officers in use of deadly force cases cannot be understated. It is crucial for attorneys
representing officers in civil rights litigation to completely understand the full contours of the
qualified immunity defense and use it to successfully defend their police officer clients.
A legal directive take the form of a standard or a rule rules can over/under restrict
while standards allow for more discretion.
Diana Hassel, "Living a Lie: The Cost of Qualified Immunity", Missouri Law Review Volume
64 Issue 1 Winter 1999 Article 9 Winter 1999, p. 135136,scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3402&context=mlr
The same policy can be promoted by either a standard or a rule. For example, the
directive that no one under the age of twenty-one may drink alcohol is a rule.57 A
standard aimed at accomplishing roughly the same purpose would be: no on[e] may
drink who is not mature enough to understand the risks inherent in the consumption of

alcohol. While both directives may aim to accomplish similar goals, substantive
consequences flow from the form in which a legal directive is placed. Rules are
thought to create more certainty; there is little ambiguity about how a rule applies to a
particular fact situation. 8 At the same time, rules can be unjust because they are
under or over inclusive. 9 Rules punish some behavior which is not inconsistent with
the goal of the directive and allow other behavior to go unfettered which, given the
goal of the directive, ought to be corrected. For example, if the goal of the legal
directive is to prevent the immature from drinking alcohol, an age limit is both under
and over inclusive. An age limit does not prevent those over twenty-one whose judgment
is not sound from drinking; others who are under twenty-one and quite capable of handling
the decision of whether to drink are prevented from drinking. Thus, a rule may prevent both
more and less than would be ideal. If a legal directive is in the form of a standard, there
is much less certainty in the outcome. Casting a legal directive in the form of a standard
allows the decision maker relatively more discretion, while a rule allows for less.6
"Because a standard allows for more discretion, a legal decision in which a standard
was applied has less precedential value. The process of applying a standard is one
which allow[s] the decisionmaker to take into account all relevant factors or the totality
of the circumstances. Thus, the application of a standard in one case ties the
decisionmaker's hand in the next case less than does a rule-the more facts one may
take into account, the more likely that some of them will be different the next time.6'
Thus, one of the reasons one might choose to embody a directive in the form of a rule, in
spite of the imprecision that will result, is to avoid uncertainty and arbitrariness that may
result from a relatively uncontrolled decision maker. "Rules embody a distrust of the
decisionnaker they seek to constrain."62 The adoption of a standard reflects a decision
to place trust in the ability of the decisionmaker to come to ajust conclusion with
little binding guidance. Standards allow for flexible application and for the development of
the standard as circumstances change.63 Standards place the responsibility for any
given outcome squarely in the hands of the decisionmaker, not in the rigid
application of a rule.' Thus, an unpopular decision made under a directive formed as
a standard will be blamed on the judge, while an unpopular decision made under a
rule will be attributed to the rule.

Current studies testing the de-policing hypothesis often share two weaknesses.

Stephen Rushin and Griffin Edwards, DE-POLICING, DRAFT, Forthcoming, Cornell Law
Review Volume 102 (2017), p. 18-21
While a handful of studies have shed light on various versions of the de-policing hypothesis,
there remain significant gaps in the existing literature. The existing studies generally suffer
from common methodological limitations. First, some of these studies have only looked
at the effects of scrutiny or intervention in individual police departments.85 While
this methodology may provide helpful insight into a specific case, questions
understandably remain about the generalizability of any such findings. Second, some
of the existing de-policing studies rely on time- series analysis, as opposed to panel
data analysis. Time-series analysis uses successive measurements made over a
continuous time interval to see how the introduction of a condition affects an
outcome variable in a given jurisdiction.86In some contexts, time-series analysis may
be the best available option because a change in law might have affected all
municipalities across the country equally.However, [t]he preferred methodology for
assessing a social policy is an analysis which involves a true experiment in which
one jurisdiction at random is subject to a new policy, while another control
jurisdiction is not.87 Thus, the ideal study of the de-policing hypothesis, or any other
[p]rofessional econometrics stud[y] on the impact of legal rules would ideally look at
comparative panel data, not aggregate, time-series data.88

Judicial discretion in civil law is sometimes necessary in order to accommodate

unforeseen circumstances.
Roberto G. MacLean, "Judicial Discretion in the Civil Law", Louisana Law Review, Vol 43,
No 1, September 1982, p. 49, digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?
article=4697&context=lalrev
Contradiction is inherent in the law. The moment that a statute is posited, it begins to
age and become inadequate for unanticipated future circumstances. Life never stops.
And perhaps some of the characteristics of the Civil Law system, such as the belief
that reason can do too much, have helped to accentuate the contradiction between
law and reality. What can a judge do? As Ehrlich has said,"There is no excuse, as it
were, for squeezing decisions out of a statute with a hydraulic press."7 There is no

easy way out. Even at the height of post-revolutionary France, article 4 of the French Civil
Code provided that the judge who refused to render a decision under the pretext of the
silence, obscurity, or insufficiency of the law was liable to prosecution for a refusal of justice.
Professor Roger Perrot has observed that: [T]he judge has the immense power to transform
a ready made garment into a tailor-made suit at the price of alterations that may be
considerable and sometimes rather unexpected. From this it has often been deduced that
the judicial authority is thus able to perform a work of rejuvenation No legal system
can survive in any society without an acceptable degree of judicial discretion. In the
Civil Law, one finds discretion at the following levels: discretion in the Civil Law as a system,
discretion within the civil codes, and discretion within the particular rules of those codes.

Af
Limiting qualified immunity is essential to ensuring justice for police wrongdoing and
having adequate judicial scrutiny.
Evan Bernick, "To Hold Police Accountable, Don't Give Them Immunity", Foundation for
Economic Education, 05/06/2015, https://fee.org/articles/to-hold-police-accountable-dontgive-them-immunity/
The sad fact is that is often effectively impossible to hold police officers accountable for
unconstitutional acts. That fact is attributable in large part to a potent well of unchecked
power that many Americans have never heard of. You will not find it in the Constitution.
You will not find it in any federal law. It is a judge-made doctrine, invented by the
Supreme Court. It is called qualified immunity. And if those charged with enforcing
the law are to be kept within the bounds of their rightful authority, it must be
abolished. Section 1983, the federal law that allows citizens to sue for constitutional
violations, is broad, unequivocal, and unambiguous. It says that every person who is
acting under color of law who causes a deprivation of any rights secured by the
Constitution and laws shall be liable to the party injured. Section 1983 embodies a
foundational principle of justice that resonates with Americans who have never heard of
Marbury v. Madison: where there is a right, there is a remedy. But for decades, we have
had rights without remedies. In the 1967 case of Pierson v. Ray, the Supreme Court held
that police officers sued for constitutional violations can raise qualified immunity as a
defense, and thereby escape paying out of their own pockets, even if they violated a
persons constitutional rights. This decision was unabashedly policy-oriented: it was thought
that government officials would not vigorously fulfill their obligations if they could be held
accountable for actions taken in good faith. Under current law, the general rule is that
victims of rights violations pay the costs of their own injuries. In practice, qualified
immunity provides a near-absolute defense to all but the most outrageous conduct.The
Ninth Circuit has held that throwing a flash-bang grenade blindly into a house,
injuring a toddler, isnt outrageous enough. Just last year, in Plumhoff v. Rickard, the
Supreme Court decided that firing 15 bullets at a motorist is a reasonable method to end the
drivers flight from the police. So much for every person shall be liable. Simply put,
qualified immunity has to go. Qualified immunity shields police misconduct not only
from liability but also from meaningful judicial scrutiny. Private lawsuits are an
essential tool in uncovering the truth about police misconduct. The discovery process

can yield information that makes broader policy changes within police departments
possible. At trial, judicial engagement an impartial, evidence-based determination of
the constitutionality of the officers actions can take place. Qualified immunity can cut
this search for truth short. If qualified immunity is raised as a defense before trial and the
judge denies it, that decision is immediately appealable. If it is granted, discovery stops, and
there is no trial on the merits.

Qualified immunity harms the groups and communities most victimized by police
wrongdoing.
Kade Crockford, "Militarization of Police and Racial Justice Gone Wrong: The Eurie Stamps
Tragedy", ACLU, Speak Freely, 09/29/2015
Duncan invokes the qualified immunity doctrine, which holds that police officers cannot
be sued for conduct that doesnt clearly violate the law, conduct which at the time appeared
reasonable. By that theory, while the actions that preceded the shooting taking the
gun off safety, pointing it at Stamps were clearly unconstitutional, as soon as
Duncan (accidentally) pulled the trigger, he became immune from liability for his
conduct. As my colleagues write in a friend-of-the-court brief, the defendants argument
is dangerous and bizarre. It would, if accepted, produce a legal doctrine that provides
incentive for police officers to injure or kill people they have subjected to
unconstitutional police practices. It inoculates officers if, but only if, their
unreasonable actions cause injury. As applied to the facts of this case, this rule means
that an officer who unreasonably aims a firearm at a civilians head would incur
liability if the civilian is not shot, but not if the firearm discharges and the civilian is
killed. Other possibilities abound. For example, if an officer seeks to extract a confession by
dangling a suspect over the ledge of a high-rise, the officer will be liable under if he later
pulls the suspect back to safety. Yet, under the defendants rule, the officer will acquire
immunity if his grip should fail and he accidentally but as a consequence of his prior,
intentional, and unreasonable conduct drops the suspect to this death. A ruling
accepting this argument would be terrible and absurd under any circumstances, but

particularly given the climate of militarized policing in the United States today a
burden borne disproportionately by Americans with darker skin. Across the nation,
police departments armed with military weapons and flash-bang grenade
bombs barge into peoples homes in the early morning, simply to serve search
warrants or arrest suspects. More often than not, these raids are conducted to look
for drugs or someone suspected of selling them. An ACLU survey of departments
throughout the nation found that 71 percent of the targets of these militarized raids are
people of color. Moreover, as my colleagues argue in their brief,Black and Latino people
are subjected to more police stops than whites, even when controlling for crime and
other factors. Studies show that race can influence the probability that the police
will erroneously harm an innocent person during an encounter. Other studies have
extensively documented unconscious negative associations about people of color,
including an association between Blacks and crime. Americans are more likely to
think Black people holding innocuous objects are holding guns, and to erroneously
shoot those Black people when given the opportunity. Subjected to more dangerous
SWAT raids and police stops, and the targets of racist tropes about criminality and
Blackness,people with darker skin are much more likely than whites to suffer the
repercussions of unconstitutional policing. Therefore, a legal doctrine establishing
that officers cannot be held liable for the final, accidental twitch in a string of
unconstitutional actions would further endanger individuals and communities
already bearing the brunt of disparate, aggressive policing. Its our hope that the court
will clearly rebuke the defenses dangerous argument, sending an unmistakable message to
police officers throughout the northeast: You will be held liable for your mistakes when the
likelihood of making them is compounded by prior illegal actions. You cannot turn the safety
off your gun and then illegally point it at someone, only to claim that the final act of shooting
them was accidental and so absolves your prior conduct.

Limiting qualified immunity is key to giving civilians an equal playing field in the
court to hold police accountable for bad acts.
Sam Wright, "Want to Fight Police Misconduct? Reform Qualified Immunity", Above The
Law, Public Interest, 11/03/2015
In order to truly hold police accountable for bad acts, civilians must be able to bring,

and win, civil rights suits themselves not rely on the Department of
Justice, or special prosecutors, or civilian review boards to hold officers accountable.
And in order to both bring and win civil rights suits, civilians need a level playing
field in court. Right now, they dont have one. Instead, police officers have recourse to
the broad protections of the judicially established doctrine of qualified
immunity. Under this doctrine, state actors are protected from suit even if theyve
violated the law by, say, using excessive force, or performing an unwarranted body
cavity search as long as their violation was not one of clearly established law of
which a reasonable officer would be aware. In other words, if theres not already a
case where a court has held that an officers identical or near-identical conduct rose
to the level of a constitutional violation, theres a good chance that even an obviously
malfeasant officer will avoid liability will avoid accountability. To bring about true
accountability and change police behavior, this needs to change. And change should
begin with an act of Congress rolling back qualified immunity. Removing the clearly
established element of qualified immunity would be a good start after
all, shouldnt it be enough to deviate from a basic standard of care, to engage in
conduct that a reasonable officer would know is illegal, without having to show that
that conducts illegality has already been clearly established in the courts?

Qualified immunity can protect police officers from civil lawsuits even when there are clear
constitutional rights violations.
David Rudovsky (University of Pennsylvania Law School), "Police Abuse: Can the Violence
Be Contained?", University of Pennsylvania Law School, Penn Law: Legal Scholarship
Repository, 1992, p. 472-473
The process by which the police obtained the warrant is highly problematic. Theofficers
used an illegal arrest to put pressure on an informant, withheld this information from
the judge who issued the warrant, and submitted an affidavit that arguably fell short
of probable cause. In a civil suit, the warrant could be attacked for its failure to
provide a sufficient factual basis for believing the informer's tip. 22 However, even if a
reviewing court found there was no probable cause to justify the warrant, the
doctrine of qualified immunity would preclude a damage award against the officer

who secured it unless no reasonably well-trained officer would have believed that
probable cause existed. 23 Thus, even if a constitutional violation could be proven ,
the officer would be protected from liability in damages. 24

Qualified immunity can function to deter victims from seeking damages when police
officers abuse civil forfeiture.
William Byrnes, "Bipartisan Bill to Provide Due Process Within 28 Days of IRS' Civil Asset
Forfeitures", International Financial Law Prof Blog,
12/25/2014,lawprofessors.typepad.com/intfinlaw/2014/12/bipartisan-bill-to-provide-dueprocess-within-28-days-of-irs-civil-asset-forfeitures.html
The Government Spends $400,000 to Keep $9,000 Seized From a Landscaper
Because He Bought His Airline Ticket With Cash From the 1996 testimony -Mr. Hyde.
Well, tell me about your litigation. What kind of a suit did you file? Mr. Edwards.We filed a
civil rights action under section 1983 against the three officers who seized his
money. And incidentally, although they were operating under the leadership direction of the
DEA, they were actually local officers. The DEA in Nashville, as occurs all over the country,
had formed a joint task force by contract. We actually obtained a copy of the contract and
put it into evidence in his trial, whereby the Metropolitan Police Force of Nashville provided a
certain number of officers. The Air Force I am sorry. The airport police department
provided a certain number of officers, and the DEA provided one agent to supervise. And
that is how this interdiction unit at the Nashville airport was composed. The three officers
we sued consisted of one Metro Nashville Police sergeant, who was on leave from the
drug squad to this interdiction unit, and two airport officers. And we sued the three of
them. We could not ask for damages or at least we made the decision not to, because
of the doctrine of qualified immunity. Had we asked for damages against the officers
for taking for stopping Mr. Jones and taking his money, the lawsuit instead of taking 2
years probably would have taken 3 or 4, and we would have run the risk that the case
would have been dismissed on the basis of immunity. But because we asked only for
his money back, they could not use qualified immunity as a defense.

Neg
Qualified immunity provides protection for police officers that is simply too strong.
Diana Hassel, "Excessive Reasonableness", Indiana Law Review, Vol. 43:117, 08/20/2009,
p. 118
In January 2009, the Supreme Court, in Pearson v. Callahan, once again 4attempted to
bring some clarity to the qualified immunity regime. Pearson gives discretion to the
lower courts in the sequence in which they address the issues raised by a qualified
immunity defense to a constitutional claim. Rather than 5 requiring that lower courts first
determine whether a constitutional right has been violated before moving on to qualified
immunity, the courts are permitted to address whether the defendant is entitled to
qualified immunity without ever reaching the constitutional issue. This
modification may give some relief to 6 courts attempting to apply the qualified immunity
defense, but it does not address fundamental problems at the heart of the qualified
immunity doctrine. Meaningful improvements can only be made by examining the defenses
basic underlying principles. The Courts development of the qualified immunity doctrine
has stretched the rationale underlying the defense to a breaking point. Instead of
providing protection only to those government actors who violate the law unwittingly
and reasonably, qualified immunity has metastasized into an almost absolute
defense to all but the most outrageous conduct. The values of deterrence of unlawful
behavior and compensation for civil rights victims have been overshadowed by the
desire to protect government agents, particularly police officers, from almost all claims
against them. The balance originally struck by the qualified immunity defense
protection for the innocent wrongdoer versus compensation for the victimhas gone
awry.

Qualified immunity ensures effective police performance.

Michael M. Rosen, "A Qualified Defense: In Support of the Doctrine of Qualified Immunity in
Excessive Force Cases, With Some Suggestions for its Improvement", Golden Gate

University Law Review, Volume 35, issue 2, Article 2, p. 145-146

In its amicus brief in support of the Saucier petitioner, NAPO addressed several concerns
related to costs and deterrence.47 It began by asserting that officers currently face too
many lawsuits related to their conduct, litigation that generally is resolved in their favor
and therefore wastes taxpayer time and money! It pointed to an "ever increasing number of
lawsuits against law enforcement officers" and the threat that increase poses to the general
public interest.49 The increased threat of lawsuits, according to this argument, deters
effective police performance, thereby diminishing public safety:o NAPO referred to
Justice Scalia's assertion in Anderson v. Creighton5l that permitting frivolous lawsuits
against law enforcement to go to trial "entails substantial social costs, including the
risk that fear of personal monetary liability and harassing litigation will unduly inhibit
officials in the discharge of their duties."2 Several scholars echo NAPO's concerns.
Richard Fallon and Daniel Meltzer describe the fears of the Supreme Court in Harlow v.
Fitzgerald,53 explaining that such litigation works its evils by deterring officers through the
threat of personal liability. Barbara Armacost notes that such liability begets poor law
enforcement, which in turn harms the very people the officers are sworn to
protect. 54 The chief of the Federal Bureau of Investigation Academy's Legal Instruction
Unit echoes these sentiments. 55 Thus, at least in theory, the proliferation of lawsuits
appears to involve serious risks to agents as well as the public.

Several legal scholars maintain that external regulations on police result in a depolicing effect.
Stephen Rushin and Griffin Edwards, DE-POLICING, DRAFT, Forthcoming, Cornell Law
Review Volume 102 (2017), p. 17-18
Another derivation of the de-policing hypothesis alleges that the introduction of externally
mandated legal regulation cause police to be less aggressive, therebyemboldening
criminals and increasing crime. According to this hypothesis, police officers facing new
forms of external regulation will shy away from engaging in proactive street policing.
In some cases, external legal regulation may contribute to officers hesitating to use
necessary force.70 This hesitation might end up getting an officer killed or
assaulted.71 As the Pittsburgh Bureau of Police was undergoing federally mandated
legal reform to curb unconstitutional misconduct, officers reported feeling hesitant

to intervene in situations involving conflictsbecause they were afraid of having citizens

file an unwarranted anonymous complaint against them.72 Roughly three out of every
four Pittsburgh officers shared this viewpoint.73 A high proportion of officers in that
department reported that the threat of community complaints and heightened disciplinary
action after federally mandated reforms contributed to less proactive street policing.74 And
in Washington, D.C., police union officials alleged that measures designed to combat
misconduct require additional paperwork, which prevent officers from spending time on the
streets fighting crime.75 Some have colloquially labeled this the Drive and Wave
Syndrome76suggesting that when faced with burdensome regulation, police officers
will choose to stay in their squad cars rather than interact with the public.
We should keep qualified immunity how it is as long as it is the best way to screen
frivolous lawsuits against police officers.
Andrew King, "Keep Qualified Immunity... For Now", Mimesis Law,
07/01/2016,mimesislaw.com/fault-lines/keep-qualified-immunity-for-now/11010
Finally, that brings us back to qualified immunity. If you get rid of qualified immunity, then
youll simply have to create another screening mechanism. Governments are usually wellinsured, often well-funded, typically risk adverse, and can perpetually refill the treasury
through taxesso long as taxpayers stay put, anyhow. This makes them tempting
defendants, as impecunious defendants usually are not sued. On top of that, a defendant
who prevails in a civil rights action usually gets attorneys fees awarded.Mostly, but for
qualified immunity, its a bonanza for plaintiffs lawyers. Plus, were told, making lawsuits
easier would bring about a policing apocalypse: If you want to see active policing plummet,
tell law enforcement officers they will be civilly liable for conduct which no reasonable
person could have foreseen was a violation of any rights! Heres an idea. Lets make
Federal Appellate Court judges civilly liable for every decision they have reversed by the
Supreme Court. Unlike cops, who have to make real time decisions affecting legal rights,
often under life-threatening circumstances, judges have the luxury of time, law clerks and
quiet, safe, well-appointed chambers to make sure their legal decisions are correct. Why
shouldnt they be accountable for rendering legal opinions the Supreme Court determines
are wrong? The answer is, unlike cops, judges (like Newman) have, absolute immunity
from Section 1983 damage actions for their judicial acts. Its disingenuous of Newman to
advocate taking away qualified immunity from the police when the U.S. Supreme Court
has already given absolute immunity to him. Law enforcement unions and associations

such as ALADS must speak out to protect cops from malicious, politically motivated
prosecutions and inflammatory anti-cop rhetoric which is slanted, inaccurate or just lies. Our
strength comes from our numbers and our collective ability to band together to support each
other and the rightness of the job all of us do to protect the public. Bill Otis agrees.
Relatedly, Ken Scheidegger has some interesting thoughts on Judge Newmans proposal,
including suggesting that getting rid of qualified immunity in excessive force actions would
be a bad idea because the defendant probably deserved it. I remember the b****-deservedit defense in my torts class. Doesnt everyone? The majesty of the law. But of particular
interest was Kens assertion that constitutional violations should be difficult to prove
because theyre more serious. Ken is judging seriousness from the point of view of the
officer, the person doing the depriving, rather than the defendant, the person who was
deprived. If either the zoning inspector or the police officer negligently deprive you of your
constitutional rights, havent you still been harmed? Yes is the answer. Its simply a policy
decision to ignore low-intensity deprivations under section 1983. What makes this issue
particularly intractable is everybodys at least partially right. Ignoring a raft of constitutional
deprivations is unfair and, perhaps, even un-American. And wrongdoers should be held to
account for their misdeeds. Yet, even in regular negligence cases, we give professionals,
like doctors and lawyers, a different standard of care. So, its not ridiculous to give certain
governmental agents like police officers a different, more forgiving standard of
care. Plus, qualified immunity, along with other mechanisms, prevents and screens out a lot
of frivolous litigation. And that cost of frivolous litigation otherwise would be socialized by
taxpayers. Plus, in highly variable and discretionary jobs like policing, there is nearly daily
opportunity for negligence to occur. So, under such a lower standard of culpability,
departments might be essentially uninsurable or unable to effectively patrol. Contrary to how
it may appear to some, a madman didnt appear one day and set-up the doctrine of qualified
immunity. Its there for reasons that plenty of courts deemed to be important reasons. Judge
Newmans suggestion to tear the fence down because he fails to see the value was made
without due consideration.Qualified immunity and its related doctrines might not be the best
solution of all best possible worlds, but it is a solution. Lets figure out a better one before
tearing down the old one.

The study of the de-policing hypothesis that has the best methodology finds that
although there is an initial uptick in crime following attempts to increase police

scrutiny that ultimately de-policing dies down after an adjustment period.

Stephen Rushin and Griffin Edwards, DE-POLICING, DRAFT, Forthcoming, Cornell Law
Review Volume 102 (2017), p. 39
We failed to find any consistent relationship between the introduction of mere
scrutiny and crime rates. A full breakdown of these results can be found in Appendix C. It
is important to note that this finding does not disprove a relationship between the
introduction of external scrutiny and changes in crime rates. We simply lack sufficient
evidence to make a definitive statement either way. We actually found that the
introduction of public scrutiny coincided with an apparent increase in rates
of allindex crime offenses.172 However, these increases in crime were, by and
large,statistically insignificantparticularly when we introduced our control
variables.173 Because of our inability to make any definitive determination about the
relationship between mere scrutiny and crime rates, we will spend the remainder of this Part
evaluating the relationship between external regulation and crime rates. We found that the
introduction of external regulation to a police department via 14141 was associated with a
statistically significant increase in the frequency of several crime categories particularly
property crimes.174 This finding is consistent with claims made by critics that external
regulation may, at least initially, make officers less aggressive or less effective in combatting
crime. Upon a more detailed examination, we found that this apparent uptick in
crimes was concentrated in the years immediately after the initiation of external
regulation and diminished into statistical insignificance over time.175 This suggests
that external regulation may come with growing pains. The sections that follow walk
through the data.

Civil courts are already overwhelmed and limiting qualified immunity makes a bad
situation worse, which means that justice is delayed or denied for thousands every
year.
Joe Palazzolo, "In Federal Courts, the Civil Cases Pile Up: Record number of pending
actions delays some suits for years" The Wall Street Journal,
04/06/2015,www.wsj.com/articles/in-federal-courts-civil-cases-pile-up-1428343746

Ronald Porter filed a federal lawsuit in 2007 after the Navy eliminated his job. He still is
waiting for his employment-discrimination case to be heard. Civil suits such as Mr.
Porters are piling up in some of the nations federal courts, leading to long delays in
cases involving Social Security benefits, personal injury and civil rights, among
others. More than 330,000 such cases were pending as of last Octobera recordup
nearly 20% since 2004, according to the Administrative Office of the United States
Courts. The number of cases awaiting resolution for three years or more exceeded
30,000 for the fifth time in the past decade. The federal court for Californias Eastern
District, where Mr. Porter filed his suit, has a particularly deep backlog. The number of
cases filed per judge, 974 last year, is almost twice the national average. More than 14% of
civil cases in that district have been pending for three years or more. The Seventh
Amendment to the U.S. Constitution guarantees the right to a jury trial in civil cases. But the
Sixth Amendment gives people in criminal cases the right to a speedy trial. The
upshot: Criminal cases often displace and delay civil disputes, creating a backlog.
Over the years Ive received several letters from people indicating, Even if I win this
case now, my business has failed because of the delay. How is this justice? said
Judge Lawrence J. ONeill in Fresno, Calif., who sits in the Eastern District. And the simple
answer, which I cannot give them, is this: It is not justice. We know it.

Qualified immunity is key to preventing the troubling trend of depolicing. Citizen

review boards obviate the need for limiting qualified immunity.
Michael M. Rosen, "A Qualified Defense: In Support of the Doctrine of Qualified Immunity in
Excessive Force Cases, With Some Suggestions for its Improvement", Golden Gate
University Law Review, Volume 35, issue 2, Article 2, p.148-150
Nonetheless, despite the unlikelihood of an officer facing personal liability, frivolous
litigation imposes serious secondary costs on his or her conduct. First, contributions
or premiums paid to a legal defense insurance plan will likely increase with the
amount of litigation the officer faces. Second, the officer's career may endure a stain
or stigma despite a victory on the merits of an excessive force case. Third, the
department, as the officer's employer, may impose discipline, whether formal or

informal, on any officer's involvement in litigation, whether successful or

unsuccessful. Suspensions or unpaid leave may accompany lawsuits faced even by
officers who are ultimately victorious in court. Thus, litigation indeed affects officers'
conduct, in the heat of the moment, whether reasonably or not.59 This effect
dovetails with a growing tendency toward "depolicing" that has become prevalent in
several of America's urban cores.60 According to many officers, recent years have
seen an increase in lawsuits and informal complaints brought against law
enforcement, a correlate tendency in departments to steer officers away from
necessarily risky conduct in do-or-die situations, and a concomitant decline in officer
morale. 61 In 1981 in the State of California,"2 residents placed 8,686 complaints
against peace officers, of which 1,552 or 18% were ultimately sustained.63 In 2000,
Californians recorded 23,395 complaints, of which 2,395 or 10% were
sustained. 64 This ballooning of claims - in particular unsuccessful ones65 - is as
troubling as it is dramatic. The Oakland, California, Citizens Police Review
Board ("CPRB") embodies this deterrent effect.66 This board provides an
independent forum in which aggrieved citizens can register their complaints about
police conduct. 67 At the same time, Detective Jesse H. Grant, who has had personal
experience appearing before the CPRB, notes that complaints, more than 80% of which
were not sustained in 2002, impose a serious deterrent effect on police conduct. 68
Officers now more than ever think twice and act conservatively - although not
necessarily safely - when engaged in violent altercations with or apprehensions of
dangerous suspects. 69 Ironically, the presence of entities like the CPRB undermines
the justification for excessive force lawsuits to begin with: by providing an avenue for
voicing grievances over police conduct, such boards obviate some of the need for
civil actions. Moreover, they reflect the deterrent effect that wide-open public access to
disciplinary bodies can breed. Thus, there exist significant reasons for the courts to
grant some kind of immunity to law enforcement officials in order to ensure the
contin- ued quality of their work. By increasing the threat of litigation, frivolous
lawsuits can serve to deter officers' reasonable conduct, thus imperiling public
safety and upending the delicate balance society seeks between forcefully fighting
crime and respectfully treating all citizens.