Law review article endorses eliminating qualified immunity—and one step further

A forthcoming law review article from Professor Katherine Crocker of William and Mary Law School endorses eliminating qualified immunity, which protects individual public officials from lawsuits alleging a violation of constitutional rights (§ 1983 claims).  But it also suggests going one step further: eliminate the Monell doctrine and expand § 1983 to let people sue government entities as well. 

The current mechanisms for constitutional tort claims against government entities are complicated.  In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court ruled that municipal government entities could be sued under § 1983.  But these claims must survive a difficult test known as the Monell doctrine, which usually requires the plaintiff prove that the constitutional violation was part of an agency “custom or practice.”  Courts have set the bar for this threshold particularly high, which means the Monell doctrine is often as daunting for plaintiffs attempting to sue local governments as qualified immunity is for plaintiffs attempting to sue individual public officials.

But Monell doesn’t apply to state governments or federal government entities, because both are protected by sovereign immunitywhich protects these entities from being sued at all.  The author notes that the iron wall of sovereign immunity is, like qualified immunity, a barrier of the court’s creation.  Historically, government actors subject to tort claims could raise as a defense that their conduct was legally authorized as part of their government work.  But the existence of a constitutional violation overcame this defense.

Professor Crocker recommends cutting through both the Monell doctrine and sovereign immunity by expanding § 1983 claims against individual public officials to also allow claims against the public official’s employing government entity under a theory of respondeat superior—the well-known legal test that says an employer may be held jointly and severally liable for the tortious acts of his employee when the latter is acting within the scope of their employment duties.  Notably, Senator Tim Scott recently proposed holding police departments liable for rights violations committed by their working officers.  But as Professor Crocker stresses in her upcoming article, individual liability would be a necessary component of any such reform.

Putting government entities on the line for constitutional torts committed by errant officials may seem like a major shift.  In reality, though, evidence suggests government agencies already indemnify their employees in almost every constitutional tort action.  And plaintiffs frequently sue government agencies through different vehicles anyway to get access to important information in discovery, like internal police department policy.  But even the possibility of personal liability still has a major impact on the behavior of individual employees, as evidenced by the response to New York City’s recent qualified immunity reform.  Crocker predicts that “the most likely consequence” of increasing entity liability “would be for governments to increase their insistence that individual officers help pay constitutional-tort costs in exceptionally egregious cases.”

Combining a repeal of qualified immunity with an expansion of § 1983 that incorporates government employers through respondeat superior thus mirrors existing functional practice in a way that allows plaintiffs to enforce their constitutional rights without first swimming through labyrinthine immunity doctrines.  This has a few distinct advantages.  First, it prevents constitutional tort suits from getting mired in interlocutory appeals.  Because the determination of whether immunity doctrines apply is a final judgment, government attorneys can (and do) grind § 1983 cases to a halt by demanding an appellate court review whether some form of immunity should apply before the case goes forward.  Now plaintiffs would not have to wait years for circuit courts to weigh in before taking the government to trial—or make distorted tactical decisions on who to sue based solely on who has a right to an interlocutory appeal.

Additionally, these reforms would make the government’s role indemnifying their employees more transparent.  Government attorneys are fond of asserting, for strategic reasons, that indemnification is unlikely to occur and litigation can have ruinous effects on personal lives despite knowing full well that their agency committed to covering litigation costs in their employment contract.  Holding the government entity liable upfront would make clear that the plaintiff can obtain a complete remedy without forcing an individual officer into bankruptcy while putting the government agency in control of the decision to seek remuneration from its employee or not.  To help this consequence achieve its full effect, Professor Crocker recommends legislation preventing federal agents from settling constitutional tort claims against them as if they were made under the Federal Tort Claims Act.  This is a common practice, because it allows the Department of Justice to indemnify the government agency and obscure who is responsible for committing rights violations when balance sheets are reviewed.

It’s important to note that while Professor Crocker believes these reforms should eventually encompass all constitutional torts, she recommends beginning with just Fourth Amendment excessive force claims.  The goal of this limitation is purportedly to allow Congress more time to monitor the effects of these changes and, in the author’s words, realize that “there is less reason to fear entity liability than many may suppose.”  But this approach risks squandering appetite for change at a time when local governments are already enacting more ambitious reform.  New York City, for instance, recently established a cause of action for both excessive force claims and unlawful search or seizure claims.  That reform also strips both police officers and their departments of immunity defenses, creating something similar to the joint and several liability the author endorses but covering a wider range of constitutional misconduct.  And Colorado and New Mexico both go even further, with statutes that provide remedies for all constitutional violations.

The full article is available here.