Tuesday, April 6, 2021
Katherine Mims Crocker has posted to SSRN Qualified Immunity, Sovereign Immunity, and Systemic Reform. The abstract provides:
Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s death last summer. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in American law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The present moment offers unique opportunities to explore deeper problems and seek deeper solutions.
This Article argues that we should refocus the conversation by reconsidering other aspects of the constitutional-tort system—especially sovereign immunity for government entities—too. Qualified immunity arises from and interacts with sovereign immunity in doctrinal and functional terms. Both rest on concerns about defense-side expenses and federal-court dockets. Both create harm given the impacts of indemnification and the economics of unconstitutional acts. In important ways, the problem with qualified immunity is actually sovereign immunity.
This Article recommends an incremental yet systemic reform strategy, contending that Congress should remove qualified immunity and allow entity liability at all levels of government for Fourth Amendment excessive-force claims while paving the way for further-reaching changes. Like qualified immunity, sovereign immunity falls hardest on populations that suffer a disproportional share of constitutional harm, including communities of color for police violence. Increasing accountability in this area should help provide equal justice under law while showing that peeling away unwarranted defenses will not wreak havoc on individual or government finances, the judicial system, or substantive rights.