The right way to end qualified immunity

Police reform is in limbo over an obscure legal doctrine known as “qualified immunity.” Qualified immunity makes it difficult to sue police officers and other government officials for compensation even if the officials violated the law. Only if the violation was “clearly established” by court precedents at the time of the violation can you sue. 

No one else in America gets this protection. If you or I or a corporation violate the law, we can be sued regardless of whether it was “clear” that what we did was wrong when we did it.

Democrats want to eliminate this special protection for government officials, but Republicans are worried that doing so will open the floodgates to frivolous lawsuits — not only against police officers, but small-town school boards and others.

Both sides are right. The time to end qualified immunity is long past due. But there is a quirk that makes frivolous lawsuits a real threat. The good news is that we can end qualified immunity and discourage frivolous lawsuits: eliminate qualified immunity for liability but keep it for attorneys’ fees.

Let’s begin with liability. If government officials violate the law, you should be able to sue them for compensation just like you can sue anyone else in America. This should be a bipartisan cause. Indeed, the leading opponent of qualified immunity for many years has been Justice Clarence Thomas. The reasons are multiple.

First, qualified immunity is entirely made up. The civil rights statute says you can sue officials when they violate the law. It doesn’t say the violation has to be “clear.” But back when the Supreme Court was more fond of making things up — when Earl Warren was chief justice — the court inserted the words “clearly established” into this statute. That’s judicial overreach plain and simple.

Second, immunity creates terrible incentives. When an official is sued, the official doesn’t pay; the government indemnifies the official. But if the government knows it won’t have to indemnify often because of immunity, then how careful will it be when it hires, trains and disciplines its employees? Probably not very much. One of the reasons bad police practices continue year after year is because there is no financial penalty to the government for allowing them.

But there is a quirk that could lead to frivolous lawsuits if we end qualified immunity. The civil rights statute has also been interpreted to force the government to pay your fees if you win but not force you to pay the government’s fees if you lose. This is called “one-way fee shifting” and it is very rare. Usually in America, there is no fee shifting at all: both sides must pay their own attorneys whether they win or lose. In other countries, they follow a two-way rule called “loser pays” — the loser has to pay the winner’s fees regardless of whether the loser is the plaintiff or the defendant.

One-way fee shifting makes it too easy to sue. There is a lot of upside to suing, but no downside. This gives lawyers bad incentives, and lawyers with bad incentives will file frivolous lawsuits. These lawsuits are held in check now by qualified immunity, but if we get rid of it, the floodgates could very well open.

One fix is to make each side pay its own attorneys’ fees, like we usually do. But sometimes the only thing that keeps an intransigent government in line is the prospect of paying lots of attorneys’ fees when they lose case after case.

Another fix is to use two-way fee shifting like in other countries. I like rules like this because it makes both sides careful about when and how they sue. But civil rights lawyers will not support this: many are small operations that don’t have money to pay the government if they lose.

This is why the best fix is to keep qualified immunity only for attorneys’ fees. This will give us the best chance of repealing qualified immunity while avoiding the worst of one-way fee shifting. We will be able to sue officials for compensation every time they violate the law, but, to get our attorneys’ fees on top of that, we will still have to show that what the officials did was clearly wrong at the time they did it.

Republicans and Democrats are looking for a “sweet spot” compromise on qualified immunity. This is it. Everyone should want the government to be careful about who it hires, but everyone should also want lawyers to be careful about when they sue. 

Brian T. Fitzpatrick is a law professor at Vanderbilt Law School in Nashville, Tenn. He is a former law clerk in the U.S. Supreme Court Justice Antonin Scalia and a former staffer to U.S. Sen. John Cornyn (R-Texas).  His new book is “The Conservative Case for Class Actions.”