Qualified Immunity, Sovereign Immunity, and Systemic Reform

by Katherine Mims Crocker

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Abstract

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections 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.

As one possible strategy, this Article recommends incremental yet systemic reform, 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 and related protections for government entities fall hardest on populations that suffer a disproportional share of constitutional harm, including communities of color in the context of police violence. Increasing accountability in this area should help provide equal justice under law while showing that peeling away unwarranted defenses should not wreak havoc on individual or government finances, the judicial system, or substantive rights.

Qualified Immunity, Sovereign Immunity, and Systemic Reform

by Katherine Mims Crocker

Click here for a PDF file of this article

Abstract

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections 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.

As one possible strategy, this Article recommends incremental yet systemic reform, 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 and related protections for government entities fall hardest on populations that suffer a disproportional share of constitutional harm, including communities of color in the context of police violence. Increasing accountability in this area should help provide equal justice under law while showing that peeling away unwarranted defenses should not wreak havoc on individual or government finances, the judicial system, or substantive rights.