3. “Qualified immunity is necessary to prevent frivolous lawsuits against police officers.”
Whether or not you think “frivolous civil‐rights litigation” is a serious problem, it’s a problem that qualified immunity, by its very nature, is incapable of addressing.
There are basically two things we might mean by saying that a particular lawsuit is “frivolous.” First, it could mean that a lawsuit is not legally meritorious, meaning that the facts alleged, even if true, simply do not make out a constitutional violation at all. If that’s the case, then qualified immunity, by definition, is unnecessary to dismiss the lawsuit, because qualified immunity only matters when the defendant has committed an actual constitutional violation, but where a court nonetheless determines that the law wasn’t “clearly established.” If the underlying lawsuit is meritless, however, then it can be dismissed for “[color=var(--link-color)]failure to state a claim upon which relief can be granted
[color=var(--link-color)]failure to state a claim upon which relief can be granted[/iurl],” without any need to invoke qualified immunity.[/font][/size][/color]
Second, a “frivolous” lawsuit could be one that is not factually supported — in other words, maybe the facts alleged, if true, would make out a constitutional violation, but the plaintiff is either mistaken or lying about the facts. But in that case, qualified immunity does little to help in dismissing the case, because of course, plaintiffs could theoretically lie their way around qualified immunity as well, just by alleging facts that do happen to closely match the fact patterns of prior cases.
Assuming there is a problem with frivolous civil rights litigation, addressing it will require rules like these. But qualified immunity does basically nothing to stop “frivolous” lawsuits because, again, the doctrine only kicks in when the underlying lawsuit is meritorious. The idea that eliminated qualified immunity will result in a wave of frivolous litigation is more baseless fear‐mongering — qualified immunity does nothing now to prevent such litigation, so we shouldn’t expect a major change in this regard if we abolish the doctrine.
4. “Qualified immunity protects police officers from the time and expense of litigation by quickly filtering out bad lawsuits.”
This is a somewhat more sophisticated version of the previous defense, but it’s still mistaken. The argument goes like this: “Yes, in theory, non‐meritorious lawsuits should still end up failing, even in the absence of qualified immunity. But it will take substantial time and resources for officers to successfully defend themselves against these lawsuits. Therefore, even if qualified immunity ends up catching some meritorious cases as well, the doctrine is worth the cost, because it will let defendants quickly and easily dismiss the frivolous ones.”
This objection might sound sensible in the abstract, but in practice, qualified immunity is remarkably ineffective at fulfilling this intended purpose. I come back to the scholarship of Joanna Schwartz, who demonstrated two key points in a 2017 article called How Qualified Immunity Fails. First, only a small fraction of the cases in which qualified immunity could be raised are ultimately dismissed on these grounds — which indicates that other mechanisms were sufficient to weed out genuinely non‐meritorious claims. Second, when cases were dismissed on the basis of qualified immunity, this occurred far more frequently at the summary judgment stage of litigation, rather than at the motion‐to‐dismiss stage. In other words, even when defendants successfully got a claim dismissed on the basis of qualified immunity, this usually only occurred after discovery, which is generally the longest and most costly stage of litigation anyway. This means that qualified immunity is actually failing at its own goals of preventing government defendants from being subjected to lawsuits in the first place.
If it is actually the case, or it ends up being the case, that non‐meritorious civil rights litigation is a costly and distracting problem for police officers, then that issue is worth addressing. Perhaps it’s worth investigating whether something like anti‐SLAPP laws would be useful in the civil rights context, so that factually unsupported claims can be quickly dismissed. But qualified immunity is uniquely ill‐suited to address this supposed problem; the practical effect of the doctrine is not to weed out bad cases, but to deny relief to victims whose rights have been violated.
Also remember. We didn't have qualified immunity before 1967. We didn't have modern qualified immunity before 1982.
