Volume 109
Issue 2
December '20

Qualified Immunity and Federalism All the Way Down

Written By: Joanna C. Schwartz

Abstract

In Qualified Immunity and Federalism, Aaron Nielson and Chris Walker argue that the federalism dimensions of qualified immunity counsel the Supreme Court against reconsidering the doctrine. They argue, in essence, that (1) the Court’s qualified immunity doctrine is a powerful shield against civil rights actions seeking damages; (2) state and local governments have essentially guaranteed indemnification to officers in reliance on that shield; (3) eliminating qualified immunity would increase filings and payouts in civil rights cases so significantly that it would cause real upheaval in state and local governments; and (4) any adjustment to qualified immunity’s protections, therefore, should come from the states or Congress—not the Court. I agree with Nielson and Walker that insufficient attention has been given to the federalism dimensions of qualified immunity, and I applaud their work mapping states’ indemnification statutes. But truly appreciating the federalism dimensions of qualified immunity—and § 1983 more generally—requires taking account of a whole range of federal, state, local, and nongovernmental people, rules, and practices that do not make an appearance in Nielson and Walker’s article.

In this Article, I offer an alternative account of the relationship between qualified immunity and federalism that takes federalism all the way down to the local and nongovernmental people, rules, and practices that shape, administer, and constrain § 1983 doctrine on the ground. Viewing qualified immunity and indemnification statutes in the context of the civil rights ecosystems in which they operate makes clear that (1) qualified immunity is not the impenetrable shield to liability that Nielson and Walker suggest; (2) state indemnification statutes were not crafted in reliance on qualified immunity; (3) states’ and localities’ indemnification provisions do not guarantee indemnification but, instead, give officials significant discretion to craft indemnification policies and determine whether individual officers should be indemnified; and (4) eliminating qualified immunity would impact the dynamics of civil rights litigation—more significantly in some parts of the country than in others—but would not have ruinous consequences for state and local governments. Moreover, to whatever extent eliminating qualified immunity impacts state and local government operations, officials can use various tools at their disposal (including but not limited to indemnification policies and deci-sions in individual cases) to restore balance in qualified immunity’s absence. This more nuanced story about the federalism dimensions of qualified immunity weakens Nielson and Walker’s reliance argument.

The Court has expressed willingness to reconsider qualified immunity in light of evidence that the doctrine does not achieve its intended policy goals. This Article shows that reliance concerns should not prevent the Court from doing so.

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