Qualified Immunity

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​Qualified Immunity’s Boldest Lie, 88 U. Chicago L. Rev. 605 (2021)

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This Article reports the findings of a study, the first of its kind, examining the role that circuit decisions applying Graham and Garner play in police officers’ policies, trainings, and briefings. Having viewed hundreds of police policies, training outlines, and other briefing materials provided to California law enforcement officers, I describe unequivocal proof that officers are not notified of the facts and holdings of cases that clearly establish the law for qualified immunity purposes.

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Qualified Immunity and Federalism All the Way Down, 109 Georgetown L.J. 305 (2020)

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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. 

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After Qualified Immunity, 120 Columbia L. Rev. 309 (2020)

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This Article offers five predictions about how constitutional litigation would function in a world without qualified immunity. First, there would be clarification of the law but modest, if any, adjustment to the scope of constitutional rights. Second, plaintiffs’ and defendants’ litigation success rates would remain rela­tively constant. Third, the average cost, time, and complexity associated with litigating constitutional claims would decrease. Fourth, more civil rights lawsuits would likely be filed, but other doctrines and financial consid­erations would mean that attorneys would continue to have strong incen­tives to decline insubstantial cases. Fifth, indemnification and budgeting practices would continue to shield most government agencies and officials from the financial consequences of damages awards. These predictions suggest that doomsday scenar­ios imagined by some commentators—of courthouses flooded with frivolous claims—would not come to pass, and constitutional litigation would often still fail to hold government officials accountable when they exer­cise power irresponsibly.

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Qualified Immunity’s Selection Effects, 114 Northwestern University L. Rev. 1101 (2020)

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This Article tests the “screening” justification for qualified immunity; that qualified immunity discourages lawyers from filing frivolous cases. Drawing on a prior study of 1,183 Section 1983 cases, as well as qualitative data from ninety-four surveys and thirty-five interviews of attorneys who entered appearances on behalf of plaintiffs in those cases, I find that qualified immunity almost certainly increases the cost, risk, and complexity of constitutional litigation, but has a more equivocal effect on attorneys’ case-selection decisions.

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The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018)

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This Article sets out a range of reasons that the Supreme Court or Congress should abolish or limit qualified immunity. Ample evidence undermines the purported common-law foundations for qualified immunity. Research examining contemporary civil rights litigation against state and local law enforcement shows that qualified immunity also fails to achieve its intended policy aims. Qualified immunity does not shield individual officers from financial liability. It almost never shields government officials from costs and burdens associated with discovery and trial in filed cases. And it appears unnecessary to encourage vigorous enforcement of the law. 

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How Qualified Immunity Fails, 127 Yale L.J. 2 (2017)

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​This Article reports the findings of the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation.  I reviewed the dockets of 1,183 Section 1983 cases filed against state and local law enforcement defendants in five federal court districts over a two-year period and measured the frequency with which qualified immunity motions were brought by defendants, granted by courts, and dispositive before discovery and trial. I found that qualified immunity rarely served its intended role as a shield from discovery and trial in these cases. Across the five districts in my study, just thirty-eight (3.9%) of the 979 cases in which qualified immunity could be raised were dismissed on qualified immunity grounds. And when one considers all the Section 1983 cases brought against law enforcement defendants—each of which could expose law enforcement officials to burdens associated with discovery and trial—just seven (0.6%) were dismissed at the motion to dismiss stage and thirty-one (2.6%) were dismissed at summary judgment on qualified immunity grounds. My findings enrich our understanding of qualified immunity’s role in constitutional litigation, belie expectations about the policy interests served by qualified immunity, and show that qualified immunity doctrine should be modified to reflect its actual role in constitutional litigation.

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Municipal Immunity

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Monell's Untapped Potential, 125 Columbia L. Rev. 925 (2025)

 

Among the most powerful barriers to relief under § 1983 is Monell—the Supreme Court decision recognizing municipalities can be responsible for constitutional violations by their officers but setting an exceedingly high standard for such claims. This Essay suggests a litigation strategy that sidesteps several challenges posed by Monell: Plaintiffs should pursue Monell claims based on police departments’ disregard of lawsuits brought against them and their officers.

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Municipal Immunity, 109 Virginia L. Rev. 1181 (2023)

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This Article reports the findings of the largest and most comprehensive study to date examining and comparing the challenges of qualified immunity and Monell doctrine in almost 1200 police misconduct lawsuits filed in five federal districts across the country. I find that it is far more difficult for plaintiffs to prove Monell claims against municipalities than it is for plaintiffs to defeat qualified immunity. In my dataset, local governments challenged Monell claims more often than individual defendants raised qualified immunity - at both the motion to dismiss and summary judgment stages - and, at both stages, courts dismissed Monell claims more often than they granted officers qualified immunity.

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Backdoor Municipal Immunity, 132 Yale L.J. Forum (Oct. 14, 2022)

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More than forty years ago, in Owen v. City of Independence, the Supreme Court held that local governments are not entitled to the protections of qualified immunity. Yet four federal circuits have concluded that granting an officer qualified immunity dooms a failure-to-train claim against their employer because local governments cannot train officers about law that is not “clearly established.” In this Essay, I argue that these circuits’ conflation of qualified immunity and municipal liability—what I call backdoor municipal immunity—misunderstands the role court decisions actually play in police policies and training and undermines the deterrence and compensation rationales underpinning the Court’s decision in Owen.

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Civil Rights Litigation & Police Accountability

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An Even Better Way, 112 Cal. L. Rev. 1083 (2024)​

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In various law review articles and most comprehensively in the final chapter of my book, Shielded: How the Police Became Untouchable, I have proposed a set of reforms intended to improve legal accountability: qualified immunity should be eliminated, local governments should be held vicariously liable for misconduct by their officers, injunctive relief should be more easily attainable for people seeking forward-looking relief, lawsuit payments should be taken out of police department budgets, departments should be made to gather and analyze information about suits with an eye toward preventing similar cases from occurring in the future, and people whose rights have been violated should have readier access to experienced attorneys to represent them. Although the reforms I outlined should reduce the frequency of constitutional violations to some degree, they will not prevent many of the harms people sue about, or the harms for which people never seek remedy. In this Essay, I situate front-end solutions in relation to the sorts of back-end accountability-type proposals I offer in Shielded and consider how to prioritize among the seemingly unending swirl of possibilities, suggestions, and demands about how to move forward.

 

Civil Rights Without Representation, 64 Wm. & Mary L. Rev. 641 (2023)

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Civil rights enforcement depends on lawyers’ willingness to bring cases on behalf of people whose rights have been violated. Unless and until more lawyers are willing to take these cases, abolishing qualified immunity and other proposed reforms will not achieve their intended aims. Any plan to restore the power and potential of § 1983 must include a blueprint to expand the number of lawyers who are bringing civil rights cases, expand the types of cases that they are bringing, and expand the locations where they are bringing them.​

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Civil Rights Ecosystems, 114 Michigan L. Rev. 1539 (2020)

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In this Article, I contend that the volume and outcome of civil rights litigation against any given jurisdiction should be understood as a product of what I call its civil rights ecosystem. I describe some key elements of civil rights ecosystems and the ways in which these elements interact, wide variation in civil rights ecosystems across the country, and ecosystem feedback loops that can magnify regional variation. Throughout, I illustrate aspects of this framework with examples drawn from an original dataset of almost 1,200 police misconduct cases filed in five federal districts around the country and surveys and interviews of dozens of attorneys who represented plaintiffs in these cases.​

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Civil Rights Deserts, 139 Harv. L. Rev. 1857 (2026) (with Fred O. Smith, Jr.)

Although the current Administration’s threats to rule of law and accountability are jaw dropping, they are not novel. Across the country, there are—and have long been—jurisdictions and institutional settings extraordinarily inhospitable to the protection of constitutional rights.  In this Essay, we call these places “civil rights deserts,” and suggest that they can take two forms. “Accountability deserts” arise when legal, political, and social conditions prevent misconduct from being exposed or litigated.  “Enforcement deserts” exist when rights violations are recognized and judicial relief is obtained, but local actors resist court-ordered reforms. We illustrate both types of deserts by examining two Mississippi counties--Rankin and Hinds--and argue that strategic litigation, media scrutiny, community advocacy, sustained judicial oversight, and supportive government actors can create oases within them. These case studies therefore offer important lessons for addressing threats to constitutional accountability and the rule of law nationwide.

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Systems Failures in Policing, 51 Suffolk U. L. Rev. 535 (2018)​​

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This Essay, an adaptation of my 2018 Donahue Lecture, argues that acts of police violence and overreach should be viewed as systems failures. A focus on systems contributors to error has been used for decades to improve the safety of aviation, nuclear power, and other complex industries. Over the past thirty or so years, medicine has adopted some of aviation’s strategies. It is time for law enforcement to embrace a systems approach. When a person is shot by the police we must still examine whether the shooting was justified, and officers should continue to be disciplined, sued, and prosecuted when they violate department policy or the law. But then conversation must turn to whether the shooting was preventable, and the ways in which technology, schedules, protocols, and policies could be adjusted to prevent another shooting in the future. The shift in perspective will likely be harder in policing than it has been in medicine or aviation, but is necessary if we want to make policing safer.

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Who Can Police the Police?, 2016 Chi. Legal F. 437

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Recent police killings have prompted a national conversation about the need for police reform. Most of the conversation has concerned the types of reforms that might improve policing. Equal consideration should be given to which actors can most effectively pursue these reforms. In this Essay, I suggest three qualities that police reformers need in order to influence police behavior: sufficient leverage such that law enforcement will respond to their pressures, recommendations, or demands; sufficient motivation to engage in their reform efforts; and sufficient resources to do their work. I use this framework to assess the efficacy of those most commonly called upon to reform the police, propose strengthening reformers in the areas in which they are lacking, and suggest ways in which reformers might collaborate to draw on their comparative strengths.

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How Governments Pay: Lawsuits, Budgets, and Police Reform, 63 UCLA L. Rev. 1144 (2016)

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In this Article, I report the results of the first nationwide study to examine how cities, counties, and states budget for and pay settlements and judgments in cases against law enforcement. Based on the practices in one hundred jurisdictions, I make two key findings. First, settlements and judgments are not always—or even usually— paid from jurisdictions’ general funds; instead, cities, counties, and states use a wide range of budgetary arrangements to satisfy their legal liabilities.  Second, having a department pay money out of its budget toward settlements and judgments is neither necessary nor sufficient to impose a financial burden on that department. Some law enforcement agencies pay millions from their budgets each year toward settlements and judgments, but the particularities of their jurisdictions’ budgeting arrangements lessen or eliminate altogether the financial impact of these payments on these agencies. On the other hand, smaller agencies that pay nothing from their budgets toward lawsuits may nevertheless have their very existence threatened if liability insurers raise premiums or terminate coverage in response to large payouts. These findings should expand courts’ and scholars’ understandings of the impact of lawsuits on police reform efforts, inspire experimentation with budgeting arrangements that encourage more caretaking and accountability by law enforcement, and draw attention to the positive role government insurers can and do play in efforts to promote risk management and accountability in policing.​

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Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014)

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In this Article, I report the findings of a national study of police indemnification. Through public records requests, interviews, and other sources, I have collected information about indemnification practices in forty-four of the largest law enforcement agencies across the country, and in thirty-seven small and mid-sized agencies. My study reveals that police officers are virtually always indemnified: During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments—even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct. After describing my findings, this Article considers the implications of widespread indemnification for qualified immunity, municipal liability, and punitive damages doctrines; civil rights litigation practice; and the deterrence and compensation goals of 42 U.S.C. § 1983.

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What Police Learn from Lawsuits, 33 Cardozo L. Rev. 841 (2012)

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This Article asks what we can learn from the vast amount of information generated by modern civil litigation. One answer lies in the practices of a small but growing number of law enforcement agencies that pay careful attention to suits brought against them and their officers. These departments gather information from initial complaints, discovery, and case resolutions and use that information to identify personnel and policy weaknesses. Lawsuit data has proven valuable to these departments’ performance improvement efforts: Suits have alerted departments to incidents of misconduct, and the information developed during the course of discovery and trial has been found to be more comprehensive than that generated through internal channels.

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​Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decision making, 57 UCLA L. Rev. 1023 (2010)

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Judicial and scholarly descriptions of the deterrent power of civil rights damages actions rely heavily on the assumption that government officials have enough information about lawsuits alleging police officer misconduct that they can weigh the costs and benefits of maintaining the status quo. But no one has looked to see if that assumption is true.Drawing on extensive documentary evidence and interviews, this Article finds that officials rarely have much useful information about suits alleging officer misconduct. Some departments intentionally ignore information from suits. Technological kinks, employee error, and deliberate efforts to sabotage data collection combine to undermine other departments’ limited efforts to gather information. Descriptions of deterrence—and the prescriptions that follow—must be recalibrated to reflect the current relationship between litigation, information, and decisionmaking.

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State and Local Civil Rights Enforcement

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New Federalism and Civil Rights Enforcement (with James E. Pfander and Alexander A. Reinert), 116 Nw. U. L. Rev. 737 (2021)

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This Article evaluates a range of state and local interventions, including the adoption of state law causes of action for constitutional violations, improved local budgeting and indemnification practices, and new litigation strategies that encourage government attorneys charged with defending civil rights litigation to take better account of the significant public interest in enforcing constitutional norms.

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Constitutional Recalibration: Lessons from New Mexico, 54 New Mexico L. Rev. 345 (2024)

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In 2021, New Mexico enacted The New Mexico Civil Rights Act (NMCRA), which created a right to sue for violations of the New Mexico Constitution. The NMCRA allows people to sue local governments when their employees violate state constitutional rights, and prohibits the use of qualified immunity as a defense. The NMCRA additionally allows for prevailing plaintiffs to recover their attorneys’ fees, and requires local governments to collect information about successful cases. Given the current state of affairs in Congress and the United States Supreme Court, state-level reforms like those enacted by New Mexico are the best and most realistic hope for this type of constitutional recalibration. New Mexico is, therefore, a bellwether. In my view, both the substantive provisions of the NMCRA and New Mexico’s process of enacting and implementing that Act offer valuable lessons for other states across the country that may consider this type of constitutional recalibration in the future. In this Essay, I offer four important lessons that lawmakers and advocates around the country should learn from New Mexico—lessons that I hope New Mexico will continue to heed.

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Lexipol

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Lexipol: The Privatization of Police Policymaking (with Ingrid V. Eagly), 96 Texas L. Rev. 891 (2018)

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This Article is the first to identify and analyze the growing practice of privatized police policymaking. In it, we present our findings from public records requests that reveal the central role played by a limited liability corporation—Lexipol LLC—in the creation of internal regulations for law enforcement agencies across the United States.

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Lexipol's Fight Against Police Reform (with Ingrid V. Eagly), 97 Ind. L.J. 1 (2022)

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We are in the midst of a critically important moment in police reform. National and local attention is fixed on how to reduce the number of people killed and injured by the police. One approach—which has been recognized for decades to reduce police killings—is to limit police power to use force. This Article is the first to uncover how an often-overlooked private company, Lexipol LLC, has become one of the most powerful voices pushing against reform of use-of-force standards.  Local governments, police departments, and insurers have long viewed Lexipol as a critically important partner in keeping policies lawful and up-to-date. This Article makes clear that they should take a closer look. Lexipol’s aggressive efforts to retain wide officer discretion to use force may ultimately expose officers and agencies to liability instead of shielding them from it. It is time for advocacy groups seeking policing improvements to train their sights on Lexipol. Unless and until Lexipol changes its approach, the company should be viewed as a barrier to reform.

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Bivens

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Going Rogue: The Supreme Court’s Newfound Hostility to Policy-Based Bivens Claims (with James E. Pfander and Alexander A. Reinert), 96 Notre Dame L. Rev. 1835 (2021)

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In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special-factors analysis when the claim arises in a "new context." In Abbasi itself, the Court found the context of the plaintiffs’ claims to be "new" because, in the Court's view, they challenged "large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate. This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an exemption for policy challenges can claim no support in the Court’s own development of the Bivens doctrine, or in the principles that animate the Court’s broader approach to government accountability law. Equally troubling, the policy exemption has already caused substantial confusion among lower courts. Judging that it lacks a legitimate predicate and defies coherent application, we conclude that the Court should pursue no further its hostility to policy-based Bivens claims.

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​The Myth of Personal Liability: Who Pays When Bivens Claims Succeed (with James E. Pfander and Alexander A. Reinert), 72 Stanford L. Rev. 561 (2020)

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This Article studies the financial threat that successful Bivens claims pose to federal officers and their employing federal agency. Information supplied by the Federal Bureau of Prisons in response to a Freedom of Information Act request identified successful Bivens actions over a ten-year period; in the vast majority of cases (over 95%), individual defendants contributed no personal resources to the resolution of the claims. Nor did the responsible federal agency pay the claims through indemnification. The data suggest, in short, that recent hostility to Bivens litigation rests on a perceived threat of personal liability that is much more theoretical than real. The data also raise important questions about the adequacy of existing constitutional remedies and the manner in which the Department of Justice exercises its settlement authority under the Federal Tort Claims Act and the Judgment Fund.

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Civil Litigation & Procedure

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The Cost of Suing Business, 65 DePaul L. Rev. 655 (2016)

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To listen to the Chamber of Commerce, one would think that class actions are the most significant scourge on business ever conjured up by man. In brief after brief to the Supreme Court, the Chamber of Commerce and other business amici tell the same story: Meritless class actions, filed by rapacious plaintiffs’ attorneys for the ostensible benefit of consumers, employees, and shareholders, are so devastatingly expensive to defend against, and threaten such financial ruin if plaintiffs prevail, that corporate defendants cannot help but accept “blackmail settlements” that harm both businesses’ bottom lines and society at large. In this Essay for the 2015 Clifford Symposium, I examine the empirical support for these claims about the deleterious effects of class actions.

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Introspection through Litigation, 90 Notre Dame L. Rev. 1055 (2015)

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This Article considers the information generated by litigation, the gaps lawsuit data can fill in the information otherwise available to organizations, and possible reasons some organizations may gather and analyze litigation data more frequently than others. To illustrate these concepts, I draw on original research of police departments and hospitals and evidence from other organizational settings.

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A Dose of Reality for Medical Malpractice Reform, 88 N.Y.U. L. Rev. 1224 (2013)

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This Article examines the role that medical malpractice lawsuits play in patient safety efforts. Drawing on a national survey of healthcare professionals and thirty-five in-depth interviews of those responsible for managing risk and improving patient safety in hospitals across the country, I find reason to believe that malpractice litigation is not significantly compromising the patient safety movement’s call for transparency. In fact, the opposite appears to be occurring: The openness and transparency promoted by patient safety advocates appear to be influencing hospitals’ responses to litigation risk. Hospitals, once afraid of disclosing and discussing error for fear of liability, increasingly encourage transparency with patients and medical staff. Moreover, lawsuits play a productive role in hospital patient safety efforts by revealing valuable information about weaknesses in hospital policies, practices, providers, and administration. These findings should inform open and pressing questions about medical malpractice reform and the best ways to continue improving patient safety.

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Gateways and Pathways in Civil Procedure, 60 UCLA L. Rev. 1652 (2013)

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This Article offers a unified framework with which to understand the Federal Rules of Civil Procedure''s two contrasting strategies to achieve just and efficient outcomes and examines available evidence measuring gateways’ and pathways’ relative effectiveness at achieving their shared goals. Stepping back, this Article asks how best to understand the roles of gateways and pathways in civil process and considers new, hybrid rules that draw on characteristics of gateways and pathways and may improve on current design.​​

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