Tom Cotton, the Gray Lady’s riot-act-reading bête noire, is back with an op-ed (but at NRO this time) in support of qualified immunity – the well-known judicial doctrine that protects state employees from being sued under a federal statute, 42 USC § 1983, when they violate someone’s rights. Let’s take a dive.

Qualified immunity is essential to effective and diligent policing. It shields good police officers from bankruptcy while still subjecting individual bad actors to personal financial repercussions.

No, QI doesn’t “shield police officers from bankruptcy.” Police officers in just about any jurisdiction in America are indemnified by their employers, meaning they don’t have to pay a cent even if they’re successfully sued for things they did on the job. All QI does is stop a certain kind of federal suit – which is already financially harmless to cops – from getting to the point where the injured party could recover at all for the harm done to them.

Qualified immunity safeguards police officers from personal lawsuits, unless they engage in behavior that they reasonably should have known violated a citizen’s rights.

That’s right! As Tom observes, it’s possible for a police officer to violate someone’s constitutional rights, including in incredibly egregious ways, only for the resulting lawsuit to be dismissed thanks to QI. Why? Because the court decides the cop needn’t have known what he was doing was a rights violation. The question on which this analysis turns, as decided by the Supreme Court in Harlow v. Fitzgerald (1982), is whether the unconstitutionality of the cop’s conduct was “clearly established” at the time it occurred.

This is a remarkably crabbed standard that, as applied in the federal courts, makes it very hard to get a § 1983 lawsuit past QI unless the facts it alleges are a precise match to facts held to be constitutional violation in the past. The level of similarity needed is often ridiculous: According to the Sixth Circuit, a precedent that establishes it’s a rights violation for cops to release a dog on a suspect who’s surrendered and is lying on the ground doesn’t “clearly establish” that it’s a rights violation for cops to release a dog on a suspect who’s surrendered and is sitting with his hands up.

What’s more, QI creates a chicken-and-egg problem for future suits. If a case is dismissed under QI because the court skips over deciding whether a rights violation occurred, and simply decides that the conduct alleged wasn’t “clearly established” as unconstitutional even if it happened exactly as described – an option available to federal courts since the Supreme Court’s ruling in Pearson v. Callahan (2009) – then later lawsuits claiming identical conduct can’t point to the first case to show that its unconstitutionality is now clearly established.

Shielding civil servants from vindictive personal lawsuits is a common practice. Most government employees enjoy the same or similar protections. Park rangers, DMV clerks, judges, sanitation workers, and elected officials are all granted some level of immunity — despite the fact that none of them have to make nearly as many split-second and life-changing decisions as police officers.

No, QI isn’t unique to cops. But it’s unmistakably bad police officers, and how QI makes it needlessly difficult to compensate their victims, that have captured the public imagination. What Tom’s trying to do here is sneak a value judgment – “we should accept more rights violations from cops than we would from others, because cops’ jobs are hard” – past the reader. And while that position’s not impossible to defend, recent intense, bipartisan interest in QI reform does rather suggest Tom’s assumptions may not be that popular.

[QI] is, by definition, “qualified,” limited, and conditional. As the Supreme Court held in 1986, it does not protect “the plainly incompetent or those who knowingly violate the law.”

We’ve already seen how absurdly plain such “plain[] incompeten[ce]” must be for a § 1983 lawsuit to make it past QI, but as Tom notes, the doctrine also creates an interesting incentive for cops to know less about the law, lest too much knowledge make it easier to sue them for misconduct.

Qualified immunity leaves ample room for accountability, and plaintiffs regularly prevail in court. In 43 percent of cases alleging excessive force between 2017–2019, courts held that the officers’ unreasonable actions placed them outside the bounds of qualified-immunity protections.

Tom doesn’t link to a study, but his source is likely a Reuters investigation of 529 § 1983 excessive-force cases found on Westlaw. While the accuracy of Reuters’ claims is disputed, and they may in fact have overstated QI’s role in getting good claims dismissed, we may take Tom and Reuters at their word – in which case almost three-fifths of recent § 1983 excessive-force cases were thrown out because of QI. Does that count as “plaintiffs regularly prevail[ing]?” Again according to Reuters, in perhaps 30% of all § 1983 cases they analyzed, the alleged rights violation was dismissed as not “clearly established,” even if the court agreed that what happened was, in fact, unconstitutional. Is that what “accountability” looks like?

Victims of police errors or crimes also often receive financial compensation from the department or by suing the city government. Personal lawsuits are far from necessary to ensure justice and accountability.

True, as far as it goes. But that’s no argument for using QI to deprive plaintiffs of their statutory right to sue under § 1983. And since you mentioned “accountability” again, a viable option to sue under statute would be especially nice given that QI was dreamed up by judges, and, as Chicago’s William Baude has painstakingly shown, has no foundation in the common law.

In all likelihood, the practical result of eliminating or significantly curtailing qualified immunity would be fewer police, less enforcement, and more crime. This is the true goal of most critics of qualified immunity. They are seeking to covertly “defund the police” without ever saying those words. They must not succeed.

I promise you, Tom, that’s not my goal, nor that of any serious QI critic. But it’s always easier to paint your opponents as evil than to engage with their arguments. It’s possible to support police officers and still think QI is a lawless, politically inadvisable notion that encourages cops to be worse at their jobs while discouraging the voters from exercising oversight. You’re a smart guy, Tom. If someone like me can reconcile those beliefs, I know you can too.