John Donvan:

Hi, everybody, and welcome to Intelligence Squared. I’m John Donvan. In the United States, people who want to sue a police officer for violating their civil rights often run into a legal roadblock that is called qualified immunity, which is a legal shield designed to protect cops in certain situations and quite a few other government officials when a citizen wants to bring them to court. Now, language, like qualified immunity makes it sound like this concept, and the right of it or the wrong of it are going to be kind of hard to understand, like you’re going to need a law degree to get it. I am here to tell you it is not that complicated. And we are going to explain it first ahead of the debate that we have lined up, which is set up to address this question. Is it time to end qualified immunity for cops? That’s our debate. But first, to get it explained, we have the help of New York Times’ this superb Supreme Court reporter, Adam Liptak, who has dropped by with the need to know stuff about qualified immunity, what it is and how it came into existence. And right after that, the debate, which will have John Malcolm versus Anya Bidwell.

John is at the Heritage Foundation. Anya is with the Institute for Justice. They will be here shortly. But first, Adam Liptak. Adam Liptak, thanks so much for joining us to help our audience kind of understand the legal context and the historical context for the debate we’re about to have, where – again, our question is, is it time to end qualified immunity for cops? But before we get straight to that language, qualified immunity, let’s approach this question from just a little bit of distance. Because the notion of qualified immunity, as it relates to police, comes into play when a citizen wants to sue a police officer. He has a grievance with that officer, and he wants legal redress. And just what are some typical examples of the kinds of grievance that would lead a citizen to want to sue a cop?

Adam Liptak

Oh, very often, it’s physical abuse, can be killing, can be theft, can be all kinds of things cops do to people.

John Donvan:

And so, then let’s get to the concept of qualified immunity. And like every legal concept, it has a history. And the origins of this one are not very far back in the mists of time. So, can you take us through the story of qualified immunity, where it comes from?

Adam Liptak:

Right. It’s a judicially created doctrine. Courts made it up. They thought that cops and other government officials sued for money for constitutional violations, needed some breathing room, needed the ability to make split second judgments sometimes without fear of ruinous liability. And so, in 1967, they started down this road of imposing this hurdle on people who want to sue cops and other government officials. Initially, it kind of looked at whether the cop had acted in good faith. And it gradually evolved into a two-part hurdle. It’s very difficult to meet

It requires the plaintiff suing for a constitutional violation, to prove not only that a constitutional right had been violated, but that right had been “clearly established” at the time of the violation. And that second piece of the puzzle turns out to be particularly, as courts have interpreted the requirement of “clearly established,” to be a significant hurdle.

John Donvan:

So, prior to 1967, when, as you say, the court made this up, there is no qualified immunity in the Constitution, implied or otherwise. Prior to 1967, did people who want to sue the police have an easier time of doing it?

Adam Liptak:

Oh, yeah. No, I mean, it’s — it was never easy. And in a civil suit for money, you have to prove that you were wronged. But they didn’t face this additional burden.

John Donvan:

Was there an argument made or a rationale presented, not just in terms of the split second decision, but some sort of larger social good to come from giving police officers this protection?

Adam Liptak:

Well, I guess the larger good is where you put the needle on deciding whether a judgement was in good faith, reasonable, the kind of thing that society is better off to protect, than perhaps disincentivizing the cop from acting in a crucial moment.

John Donvan:

Was there also some thought given to “well, if cops think that they might lose their house and everything through a lawsuit, we’re going to have fewer people going into that profession?” And, you know — and I know that qualified immunity also applies to other government officials, that it would, you know, discourage people from going into the profession, take up their time, cost of money, all of those things.

Adam Liptak:

All of those things were part of the calculus. Although I got to say, although courts often talk about ruinous financial liability and the fear of you’re losing your home as a possibility, in practice, studies have shown that the employers of cops and other government officials almost always indemnify them. So, the threat that they would personally be liable for these sums of money seems incorrect.

John Donvan:

So, a few police officers end up paying the bill, picking up the bill themselves,

Adam Liptak:

Yes. In the first place, very few of them lose. In the second place, even if they do lose, the city or whoever employs them is very likely to pay those fees.

John Donvan:

So, in their in the early iterations of the concept of qualified immunity, as you mentioned, they were trying to get to what the cop was thinking at the time, did — was it — was he acting — he or she, acting in good faith when undertaking an action that potentially could violate a person’s rights?

If the cop believed that he or she was not violating the defendant’s rights, that became a defense?

Adam Liptak:

Right. So, it starts out — and this is true in many areas of the law — as a subjective test. We’re going to try to assess what the cop actually thought. And it evolves into an objective test. It judges the action against whether a constitutional right had been violated. And if it had been, whether that right was “clearly established” when the cop acted.

John Donvan:

So, which comes first, is it — do you judge whether the right has been violated or whether the right is “clearly established?”

Adam Liptak:

That is a really good question. And not long ago, the Supreme Court said to courts you can do it in either order. And that is turned out to be quite problematic. Because what courts will often do is say we’re not going to tell you whether there’s a constitutional right here. We’re just going to tell you it was not clearly established.

So, not only does the cop win, but we don’t develop the law. We don’t tell the next cop what the constitutional rule is. And of course, it’s a significant thing for a court to make a judgement about what the constitution requires. And it’s easier to skip that step and go straight to whether it was “clearly established”. And in giving judges that choice, the court has not only continued to make it easy for cops to win, but also kind of shut down the development of the law.

John Donvan:

So, the pattern, you’ve said this a few times, the pattern is that cops — most of the time cops win.

Adam Liptak:

Right. And we haven’t talked about this yet, John. But the reason for that is that this concept of “clearly established,” you can apply at various levels of generality. And what the Supreme Court seems to say is you have to find a factual setting that’s almost identical to what was an issue.

And that’s kind of paradoxical. Because it means the more outlandish the cop’s conduct, the less likely it is that he’s going to be subject to a lawsuit, because there will be no case in which precisely that has happened.

John Donvan:

Yeah. How closely, if they’re saying that the right and the way in which it was violated must match some other prior incident and violation in which it was established that the right was violated? It must match — how closely does it have to match something that happened in the past?

Adam Liptak:

almost comically, closely. So, one main reason why cops almost always win is because at least at the Supreme Court, the fact pattern has to map on almost identically.

John Donvan:

So, I’ve been reading about a quite interesting example of this dating back to a case that was argued in 2018 that comes out of Tennessee.

A man named Baxter, Mr. Baxter, was a burglary suspect, and he was hiding from the police as the police moved in on him in a basement of a house. They had a dog with him. They found him in the basement. Mr. Baxter says he raised his hands to surrender. At which point, the dog was unleashed and bit Mr. Baxter. And Mr. Baxter sued for excessive use of force. And he lost the case because of qualified immunity. Even though there was a prior case in which the court said that two men who surrendered in the face of a police dog that was sicked on them, lying on the ground, did have their rights violated. In the case and the course of Mr. Baxter said, “Well, he wasn’t lying on the ground when he surrendered.” He didn’t match that other case.

He had his hands raised. And I want to know, is this the kind of — is this typical of the kinds of decisions that are being made about when a “clearly established” right exists?

Adam Liptak:

That is not an outlier. That case, it sounds weird, right? And it sounds like that distinction ought to make no difference. And yet minor distinctions like that routinely result in judgments in favor of police officers.

John Donvan:

Is there a rationale for — presented for structuring the dynamic of the thing this way, as opposed to just saying “when a dog bites a surrendering man, that’s a violation of his rights, not when a dog bites a surrendering man, who also has to be lying on the ground, not raising his hands?”

Adam Liptak:

The larger idea behind the doctrine is that we shouldn’t penalize police officers, unless they know, have reason to know, that particular conduct is unconstitutional.

And what the Supreme Court says is that knowledge needs to be conveyed to them quite precisely. Now, you can wonder whether police officers spend their evenings reading through court cases to gain this kind of knowledge. There’s something artificial about it.

John Donvan:

I mean, in theory, these court cases would present a sort of “do this, don’t do this” kind of list, if indeed you have to match to the pattern of a prior incident so closely.

Adam Liptak:

Right. Now, again, I’m not sure that typical cop is spending his or her evenings reading Ninth Circuit decisions that are 60 pages long and making fine distinctions. But that’s the theory of it. The theory of it is perfectly plausible, if you hit the right level of generality. You shouldn’t penalize people for violating the law, if they don’t know what the law is.

John Donvan:

What is the — what downstream consequences they’re concern about?

Adam Liptak:

That cops will be disincentivized from doing their jobs vigorously and rigorously incorrectly, that they will be afraid to take actions that are for the public good.

John Donvan:

Adam Liptak, thank you so much for joining us on Intelligence Squared.

Adam Liptak:

Thank you for having me, John.

Male Speaker:

More from Intelligence Squared U.S. when we return. Welcome back to Intelligence Squared U.S. Let’s get back to our debate.

John Donvan:

Okay. And now it is time to debate. And I want to welcome John Malcolm and Anya Bidwell to Intelligence Squared. John, I’ll go to you first on the question. Is it time to end qualified immunity for cops, are you a yes or no?

John Malcolm:

I’m a no.

John Donvan:

Okay. That means that Anya that makes you a yes, doesn’t it?

Anya Bidwell:

Yes. I’m a yes.

John Donvan:

Okay. Well, it’s great to have both of you here. And Anya, since your position is — would be the more disruptive to the status quo, I’d like you to go first.

Tell us why you say yes to the question that it is time to end qualified immunity for cops.

Anya Bidwell:

First of all, John, it’s an honor to be here with you and with John Malcolm, I look forward to discussing this very important topic. It is time to anti “qualified immunity” for all government officials, including police officers. Where qualified immunity applies, the constitution is meaningless, even when officers act in bad faith. When the Supreme Court created the doctrine, it acknowledged this, but said that “denial of constitutional rights is worth it for policy reasons.” Years of research, however, show that qualified immunity is not needed to meet these policy goals, making our sacrifice of the constitutional freedoms completely worthless. So, why is the ability to enforce the constitution so important? First, it is a part of our national character, that we can stand up to the government.

If the government violates our rights, we, unlike our counterparts, in, say, Russia, can push back by suing it. We’ve known this since the American founding. Where there is a right, like the Fourth Amendment Right, to be free from unreasonable searches and seizures, there must be a remedy, like the ability to come to court and state a case against the officer who did this to you before the jury of your peers. The ability to enforce the constitution also helped to create accountability framework that tells police officers that they can’t behave in bad faith. So, let me give you an example. There is this St. Paul Minnesota police officer. Her name is Heather Weyker. And it has been definitively established that she knowingly caused several innocent people to go to prison in order to salvage her flailing sex trafficking investigation. Six years after these innocent people sued Weyker for violating their rights, they’re still fighting an immunity battle to force her to answer their complaint.

The existence of qualified immunity emboldens bad people, bad agents, bad apples, like Agent Weyker and create many more of them. As to the policy justifications for creating qualified immunity, there is no empirical basis for them. In one of my cases, for example, an officer held a 12-year-old and 14-year-old boys under a gun because there were potentially armed fugitives in the area. The video clearly shows the voice cooperating and also that they have childlike voices. The boy is sued, and the court granted qualified immunity. But what if there were no qualified immunity available to the officer, the officer would still have a huge advantage. To prevail at trial, the plaintiff would have to convince the judge and the jury that the officer acted unreasonably. And the Supreme Court specifically said that when it comes to reasonableness, courts can’t second guess what officers do in split second types of situations.

If an officer acted in good faith, even if he did something stupid like holding children under a gun, it would be very hard to show that he acted unreasonably. Even if the officer lost and had to pay damages, there would still be an opportunity because there would be an indemnification available to the officer, since he acted in good faith. And there would be no chilling effect on the officer either. Instead of spending years in Courts of Appeals fighting on qualified immunity, the officer would have an opportunity to tell his story and show that he acted reasonably, increasing transparency and developing trust in the community. Do you know what the greatest deterrent to becoming a police officer is these days? It’s distrust in the community. By preventing cases from going to trial, qualified immunity helps to perpetuate that.

It’s time to end qualified immunity, John. It doesn’t serve its own purposes, and it’s contrary to our values as Americans.

John Donvan:

Thanks, Anya Bidwell. And now, John Malcolm, it is your turn.

John Malcolm:

Thank you, John. It’s a pleasure to be participating in this debate with my friend, Anya Bidwell. And let me begin by saying that there are areas where Anya and I are likely to be in agreement. For example, we agree that some courts have ruled in favor of police officers by relying on trivial factual distinctions to distinguish their case from prior precedent. We’re also going to agree that qualified immunity is largely, although not exclusively judge-made law, and that ideally Congress would weigh in on the issue. Although we probably disagree about what Congress’ silence means. Here are some areas where we likely disagree. First, although some people may sincerely believe that we are experiencing an epidemic of police violence, the objective facts do not support this. Second, studies indicate that qualified immunity is asserted in a surprisingly small number of cases involving police officers, and that it is successful and only a small percentage of those cases in which it is asserted.

Third, in virtually every case that results in a judgment against a police officer. The money is paid by the officer’s employer, or by the employers insurance carrier. Fourth, qualified immunity does not apply in criminal cases. So, any officer who engages in extremely egregious conduct, such as the five officers in the George Floyd matter, would not get any protection from prosecution. Fifth, there’s something unfair about holding officers responsible when a reasonable officer would not know that his conduct was wrong, and there is virtually no evidence that police officers stopped to think about the potential benefits of qualified immunity when they make split second life and death decisions. They rely on their training and intuition, based on their experience.

Sixth, as a general matter, we don’t want police officers to hesitate when acting. When they hesitate or choose not to intervene because of fear of potential liability, people die. Seven, violent crime is rising in this country at a precipitous rate. The police are feeling beleaguered with the defund the police movement and a dramatic rise in the number of police officers who are physically assaulted. Police officers are leaving the force in droves since 2019. Resignations among police officers in the United States and Canada have jumped by 43 percent, and retirements have risen by 24 percent. Recruitment, especially of officers of color, is suffering badly. In the same timeframe, overall hiring is down 4 percent. This is not the time to send a message that if you choose to enter this unpopular and dangerous profession, you and your family might be bankrupted by someone who films you in second guess is a split-second decision that you made that turned out badly.

And finally, eighth, there are several steps that can be taken short of eliminating qualified immunity that would make sure that victims of police misconduct are compensated, would force municipalities to absorb the cost of bad police behavior, would not harm police recruitment, would help develop case law in this area, making it more likely that the parameters of what is and isn’t proper police behavior are better defined to prevent future misconduct. For these reasons, qualified immunity should not be eliminated for police officers. We can get to other individuals if you want.

John Donvan:

Thank you, John Malcolm. So, we’ve heard what both of you had to say. But I want to go back, Anya, to a point you made a number of times, in which you said that qualified immunity does not actually deliver the policy purposes it is meant to deliver. But one purpose that you did not mention, which I think John highlighted, was the notion that in the absence of qualified immunity, more cops will be hesitant to do their duties if they think they might get in trouble, and fewer potential recruits to the police force will join the police if they think that they could get in trouble for making — I think we’re going to hear this term a lot — split second decisions in the heat of a situation.

And I just would like you to take that particular policy purpose on and your response to it.

Anya Bidwell:

Sure thing, John. There have been a number of studies done and surveys taken of folks who are considering joining the force and qualified immunity is nowhere at the top of the list, right. People don’t want to join the force because there is distrust in the community because people these days don’t trust what the officers are going to do. Other reasons are, for example, very low pay, right, or full employment that, you know, is probably likely to change coming up.

But qualified immunity is not something that folks are worried about when they’re considering whether to join the force. And it’s a very important point to understand. And qualified immunity doctrine, itself, relies on this idea that somehow police officers are, you know, reading cases and wondering what are they going to be doing when they are out there on the front lines and whether those cases will support what they’re doing? Again, evidence does not support that at all. Police officers are not looking through, you know, tons of cases to figure out whether what they’re about to do is constitutional or not. So — but to get back to the point, John, there is no evidence that this is something that deters police officers or potential police officers from joining the force. Qualified immunity in surveys is, you know, somewhere in the 10th place, 11th place, if mentioned at all.

John Donvan:

John, your response?

John Malcolm:

Yeah, I’ve a few responses. So I think that they are all related. The lack of trust also shows that police have a bad reputation. I think it’s unwarranted. There are literally tens, if not hundreds of millions of police civilian encounters. The overwhelming majority of them don’t involve even a threatened use of force, much less an actual use of force. But that distrust has led to people being deterred from entering the profession because they figure why am I going to go out every day and risk my life for people who don’t like me and don’t trust me and are more likely to attack me than cooperate?

Anya Bidwell:

I would like to jump here in terms of lack of trust. I think that qualified immunity is exactly what perpetuates the lack of trust. The whole idea of qualified immunity is that it prevents facts from being discovered. It prevents that from moving forward. So the court basically says, assuming these facts are true, assuming what you plaintiffs are saying is true, qualified immunity still protects the officer.

So I’ll give you an example. There was this case in California where officers allegedly stole precious coins when they went into the house and they searched for evidence of crime, right. And the plaintiffs basically came in and they said that the officer stole money from us. And what did the 9th Circuit say? The 9th Circuit said assuming that’s true, assuming that these officers stole money, qualified immunity applies because the recent case in point that specifically says you’re not supposed to steal money. So what is the community left with? What kind of impression? That basically officers who steal don’t have any kind of accountability mechanism. And that’s kind of the problem with not discovery — not going to discovery, not developing facts, which is what qualified immunity is all about.

John Donvan:

So we talked a little bit about what you just referred to with Adam Liptak, which is that the law currently is set up so that if there is not a prior judgment on a specific set of circumstances, unless there is, then qualified immunity does not come into play.

And John, I know you want to respond to what Anya has said, but I’m guessing that you probably think that that’s not a good thing, that it works that way, but I’m not sure.

John Malcolm:

Yeah, no, that is — that is true. So let me say a couple of things that that where I agree with Anya. As I pointed out in my opening statement, there are certainly cases where judges have tacked on to, or latched on to, trivial factual differences among cases in order to say, well, this wasn’t clearly established law because of this trivial distinction. And I think that’s wrong. And I think she’s also right that if you rely on this clearly established law prong, the more outrageous the conduct, the less likely there is to be a substantially similar case and that can lead to injustices. So I totally — I totally agree with Anya on that.

But responding — and so I would change that. And we can talk about that in just a moment. Where I would disagree with Anya is that, you know, I don’t think the public, when they are talking about a lack of trust among police officers, they’re going to be thinking about Ferguson and George Floyd and Eric Garner. They’re not going to be thinking about qualified immunity. If you talk to plaintiffs’ lawyers, they all point out that qualified immunity does not deter them from filing lawsuits at all. Again, qualified immunity works as a defense in a trivial number of cases. And there have been lots of cities that have paid out millions of dollars in judgments or settlements when police officers have engaged in an egregious conduct, even when qualified immunity might have applied. Now, getting to your point. So there are two prongs under current qualified immunity doctrine under the Harlow standard. You have to show that the police officer engaged in a constitutional violation under the standards of what a reasonable officer would have known at the time.

And you have to show that that violation violated clearly established law. And in 2009, the Supreme Court, in a case called Pearson versus Callahan, said, well, if you’re a lower court analyzing this, you can jump right to the second prong and say whether or not the law was clearly established at the time without ever determining that there was a constitutional violation in the first place. That — when I talk about alternatives to eliminating qualified immunity — that is one of the things that I would reverse. And I would require courts to determine whether a constitutional violation has occurred and then determine whether it was clearly established at the time. That would at the very least allow case law to develop and would narrow the field of uncertainty in the future.

John Donvan:

Anya, sorry, if you want to respond to that on your — go ahead. I had another question to go to you with, but if you want to go for it, please do.

Anya Bidwell:

There are — so, first of all, I agree that if we’re talking about compromising on qualified immunity, requiring courts to look at whether constitutional violation occurred in the first place is a very important thing to do. But I also want to address two things that John talked about. The first thing is training, right? An important thing to understand here with training materials that when you look at whether qualified immunity applies, training materials don’t matter, right. And that’s kind of a thing about the qualified immunity to test. That really is clunky and doesn’t make sense. You’d think that when courts are looking at whether something is clearly established to provide fair warning to a reasonable officer, they would actually look at what the officer was trained on, but they don’t. They only look to cases. And often, as John mentioned, they’re looking to cases that are identical on facts. That’s point number one. And number two, about qualified immunity, not deployed very often.

I agree that there are studies. Joanna Schwartz had a very famous study where she specifically said that only 4 percent of cases get dismissed on qualified immunity. So that goes to two things. Number one, that floodgates of litigation are not going to be opened if we remove qualified immunity because courts already have ways to deal with frivolous lawsuits, right. They’re burdens of proof. They’re burdens of — they’re burdens of proof that plaintiffs are facing. They’re going to be very difficult to overcome. But number two is to think about what are those 4 percent of cases that we’re talking about? If cases are not being dismissed on qualified immunity when they’re frivolous, it means that only cases that have meritorious claims are the ones that get dismissed on qualified immunity. So they are only 4 percent, but they’re 4 percent of cases where the court basically says, yes, we are going to deny your constitutional rights because we think that qualified immunity applies.

And that’s another thing to think about. When courts say, we’re going to deny you your constitutional right, we’re talking about individuals carrying the burden of constitutional violation, and that’s something that’s fundamentally un-American.

John Malcolm:

Well, so one, I think that Joanna Schwartz’s studies — and there are other similar studies, not just the Joanna Schwartz study showing that it’s actually less than 4 percent of cases get dismissed for qualified immunity shows that qualified immunity comes into play in a trivial number of cases. And so, you know, even with qualified immunity, there are lots and lots and lots of cases that go forward. And as I say, you know, cities pay these amounts. Chicago paid $5 million to the family of Laquan McDonald. Louisville paid $12 million to the family of Breonna Taylor. Minneapolis paid $27 million to George Floyd.

And even in cases in which it’s determined that the officer’s conduct was justified, sometimes those payments are made.

John Donvan:

John and why did the qualified immunity not come into play in those cases, what was it about them?

John Malcolm:

Because they either determined that the law was clear that this was a violation or that it was a reasonable question for the jury to determine whether or not a reasonable police officer would have acted under those circumstances.

John Donvan:

More from Intelligence Squared U.S. when we return.

[music playing]

John Donvan:

Welcome back to Intelligence Squared U.S. I’m John Donvan. Let’s get back to our debate.

Anya also made the point in her opening that in a world without qualified immunity, more police officers would be put on the stand in these situations with the benefit, she argues, that they would get to tell their side of the story. They would get to make the case that they were acting in good faith, that they had a split second decision to make, that a reasonable person would have made it, and that that would be to the benefit of all if the police were not only compelled to, but allowed to tell their side of the story.

John Malcolm:

Well, again, fewer than 4 percent of these cases are being dismissed on qualified immunity grounds. So these officers are telling their stories.

John Donvan:

But except in the cases of the — except for that 4 percent. So I think we’re talking about the 4 percent whether to —

Anya Bidwell:

Of cases with constitutional claims, where it is determined that it’s not a frivolous constitutional claim.

John Malcolm:

Well, it is. Even in some of those cases, the police officers may have told their story, they may have told their story in depositions. And a judge determined that they acted in accordance with what a reasonable police officer would have done at the time. It’s you know, I think it’s going to be rare by the time a case reaches the summary judgment stage or a motion to dismiss stage, where a police officer has not in some way, shape or form provided his or her story about what happened at the time of the incident in question.

Anya Bidwell:

I can think of two cases that I’m litigating right now, John. One involving task force officers beating up an innocent college student. And we are going on the eighth year of litigation and those task officers haven’t even answered their complaint because immediately you file a motion to dismiss. And another one that I mentioned, Agent Weyker, right, who engineered, essentially, a sex trafficking investigation and caused two of my clients to be in prison. We’re going on the sixth year of litigation. And again, she hasn’t even answered her complaint. And that goes to timing of this, right. So one of the policy goals that the Supreme Court outlined when it talked about qualified immunity was how it would shorten the timing of litigation, right. Qualified immunity would come in and then, you know, we would get rid of cases. But that’s not what happens at all. In fact, qualified immunity is brought at several different stages during the litigation. And what we are seeing is years of appeals, very complicated appeals, and taking a very long time, a lot of money, a lot of complicated topics, rather than simply putting an officer on the stand and giving them a chance to explain that they did not steal those precious coins, right, and they actually acted reasonably.

So that also goes against the policy reasoning in qualified immunity cases.

John Malcolm:

I’m not going to say that injustices don’t exist. They do. And I admire and I always have on you your persistence and those of your colleagues at the Institute for Justice. Even in those cases, particularly criminal cases, the police officer story will have been told by the time you file a civil action. And one of the reasons for qualified immunity is to weed out cases where either the case law is not clearly established, so it would be unfair to hold a police officer to account for conduct that was not — that he could not reasonably have known was a violation of law at the time, or if he is able to establish that a reasonable police officer would have done exactly the same thing in his situation, or at least if he did not act unreasonably.

And if that cuts off most of those frivolous cases, that’s fine. And as I say, even in those instances where that is established, the municipality almost always ends up paying a judgment anyway. Not always. You can find some examples. I agree with you that there are some bad results that happen as a result of this. I submit that the same would happen if you eliminated qualified immunity.

John Donvan:

John, if the municipality usually ends up paying the costs, is that also true for when an officer is found liable for violating somebody’s constitutional rights? Does the department pay the bill or does the cop? In other words, what — to your opening argument that they face — the individual cops face bankruptcy. Does that happen often?

John Malcolm:

No, not often. It doesn’t mean that they don’t fear it when they are thinking about joining the force. Joanna Schwartz, whom — UCLA law professor whom Anya mentioned before, also did another study that was published, I think, in the Yale Law Journal that found that literally municipalities end up paying — it was like something like 99.98 percent of the judgments.

And even when police officers act egregiously, like the officers in the George Floyd matter, you know, he the city of Minneapolis paid $27 million to the family of George Floyd. And so there is a fear about bankruptcy among police officers, but usually because they have indemnification provisions with their insurers or through a collective bargaining agreement. The police officers, in fact, even when they’re criminally prosecuted and successfully so, rarely end up paying the judgment.

Anya Bidwell:

And that very much goes to this idea of, you know, chilling effect and deterrence. Right. The municipalities have very robust indemnification statutes. States have very robust indemnification statutes.

So as John mentioned, police officers don’t go bankrupt because the municipalities and a state are the ones who end up paying out the judgments. But by the way, those judgments are not that frequent. Studies show that, generally speaking, we’re talking about only 1 percent of municipal budgets going to paying out settlements or paying out litigation costs. And the other thing that I do want to mention about these indemnification provisions is that, that only goes to show you that it is state legislators, it is local legislators who are much better positioned at balancing this costs and benefits of indemnifying an officer. This policy concerns about chilling effects. Right. It’s not up to the courts to talk about this. Courts should have a much more modest role, as they did consistent with the founding of the republic, where courts would look very much at whether the law was violated and order remedy for if it was.

And then legislators would be the ones calibrating incentives and legislators would be the ones —

John Donvan:

Well —

Anya Bidwell:

Yeah.

John Donvan:

— I think John has said he agrees with you on that point, that it’s judge made law and it would be better if the legislatures were making it. But I just want to ask you sort of a more fundamental question, Anya, and that is that — do you see that there are going to be situations in which a cop does a bad thing in good faith without kind of getting it because he has to make a snap judgment? And where do you think justice should come down in that situation?

Anya Bidwell:

The Constitution already protects officers making reasonable mistakes. That —

John Donvan:

What would be a reasonable mistake, for example?

Anya Bidwell:

A reasonable mistake would be coming into a wrong house. Right. Or stopping somebody for wrong reasons. Or, for example, the case involving a 12 year old and a 14 year old who they were held under the gun by this police officer.

And the court basically said, yes, you know, the video shows that these kids are talking like kids. These kids are walking like kids. They don’t look like fugitives. They’re walking towards the officer. Right. Not running away from him. And the officer ends up holding them under the gun. And the court said, we’re not going to second guess what this officer was going through at the time when he was, you know, thinking that he was going after a fugitive. So courts —

John Donvan:

Are you comfortable with that judgment, with that decision?

Anya Bidwell:

I am comfortable with that decision to the extent that it is looking at what does Fourth Amendment protections entail. Right. So it’s about unreasonable searches and seizures. And so when the court is looking at what is reasonable and where they are looking at police officers making split second judgments, I’m very comfortable with courts providing a lot of breathing room and not stepping in and second guessing what these police officers should have been doing in the comfort of their own chambers. And —

John Donvan:

And so you think you think that breathing room will be there even in the absence of qualified immunity?

Anya Bidwell:

100 percent, John. There is no question about that. There is plenty of breathing room baked into the Fourth Amendment, as well as other constitutional provisions.

John Malcolm:

I think that that qualified immunity provides exactly the kind of breathing room that Ana just talked about. Was the law clear at the time and did the officer act as a reasonable police officer would have acted under the circumstances? Whether it’s a Fourth Amendment issue or a Fifth Amendment issue, whatever the issue is, it is precisely qualified immunity that provides that kind of breathing room. Now —

Anya Bidwell:

In addition to the actual constitutional tests themselves. Right? So the Fourth Amendment provides that breathing room. What you’re talking about, John, is adding this additional layer of the breathing room that focuses on case law and not giving the actual knowledge of what the officer went through.

There is already breathing room baked into the constitutional provisions themselves. And what you’re saying we need an extra breathing room, even though none of that is supported by any of the studies.

John Malcolm:

Qualified immunity gets at exactly two points, which is, was this clearly a constitutional violation or was there wiggle room as you’ve just outlined? You talked about the Fourth Amendment area. Was this reasonable or unreasonable? And would a reasonable officer faced with that situation have done as that police officer did. You can you can get into the parameters of the Fourth Amendment in a motion to suppress in a criminal case. This is a civil case. And the precise kind of breathing room that you are talking about is what qualified immunity provides. Now.

[talking simultaneously]

Let me let me finish one other thought, which is the notion, though, about people being compensated for their constitutional violations is an important one. And again, there is another Supreme Court doctrine coming out of the 1978 Supreme Court case.

Monell versus Department of Social Services of the City of New York, it’s called the Monell Doctrine, that also limits the liability of municipalities to pay for their violations of the police by police officers. That is another doctrine. That is another avenue of reform where you and I would probably agree that does not involve eliminating qualified immunity. If you then force municipalities to pay for the actions of their police officers, you would make sure that victims get compensated and you would force the employers to absorb those costs, which may lead to discipline police officers more often, improve their training, or do a better job of hiring police officers who don’t engage in egregious conduct.

John Donvan:

Okay. I want to have a time out for just a moment before you respond, Anya. I wish I had asked this question earlier, but for the general audience, since several references have been made to the Fourth Amendment, Anya, tell us what the Fourth Amendment is about in relation to the topic we’re discussing.

Anya Bidwell:

The Fourth Amendment and in relation to our topic when we’re talking about police officers, is very much about searches and seizures. And the Constitution specifically says that unreasonable searches and seizures are not permitted. So warrantless entry, for example, also searches and seizures, excessive force is part of a seizure, right? It’s a seizure of a person. And that’s why Fourth Amendment is something that comes up most frequently when we’re talking about police officers. And I want to pause on how a Fourth Amendment analysis would come into play, right, in a normal case without qualified immunity. So if these 12 year old and 14 year old boys are suing the police officer for holding them under a gun, they would say this officer violated our constitutional rights because when he held us under the gun, he was not reasonable.

And then the officer, without the benefit of qualified immunity, could still file a motion to dismiss and say, this is not true. My actions were reasonable at the time I was looking out for fugitives, some of the fugitives were potentially armed. I was fearing for my safety. I was fearing for the safety of others. My behavior was absolutely reasonable. And what studies show is that cases get dismissed for failure to state a claim on the motion to dismiss, or they get dismissed on a motion for summary judgment, even without the involvement of qualified immunity. Because the officer comes in and says, I behaved reasonably, I feared for my safety, I feared for the safety of others. There was a dangerous situation happening at the time. These people weren’t complying. So you don’t really need qualified immunity at all to come in and say, I acted reasonably.

And what we see in study after study after study, if that courts don’t need to take qualified immunity into account, when they look at that, they just say, you’re right. Plaintiffs failed to state a claim about you behaving unreasonably so you can continue with your business. There are no damages. And one additional point that I want to go back to, because John mentioned that several times and this idea of criminal —

John Donvan:

Could I ask you not to go to the additional point right now? Because you just made a really good point that I would like to hear John’s response.

Anya Bidwell:

Okay. Sounds great.

John Malcolm:

Yeah. Look, you know, Fourth Amendment violations come up in two contexts. They come up in motions to suppress in criminal cases and they come up in civil cases just as Anya discussed. And the qualified immunity inquiry is whether or not it was unreasonable — objectively unreasonable under existing case law — and I agree that sometimes the judges slice the baloney too thin, but that’s the first question — or a question, and then also whether a reasonable officer would have done what this officer did.

And almost always the officer will have to tell his story in order to make that determination. Fewer than 4 percent of the cases get dismissed as — once that evidence is presented before trial. And almost always these cases ended up going to trial or settling because the judge says, well, there’s a factual dispute and a reasonable jury could come out one way or the other. You know, a police officer who stands up and says the inquiry is an objective standard. It’s what a reasonable police officer would have done at the time. So really, the police officer has to has to come forward with two things. Saying, one, I acted reasonably and two, a reasonable officer in my position would have done the same thing. If the police officer comes forward and says, well, I thought what I did was excessive. That’s the subjective standard. But a reasonable officer would have said it was okay. That is not likely to get very far. So the hurdle is pretty high to avoid a jury trial or a settlement and to get the case dismissed.

But it is qualified. Immunity provides exactly the kind of breathing room that Anya has been talking about.

Anya Bidwell:

John, why do you need the additional layer of qualified immunity if you can just argue on the elements of the constitutional violation? The Fourth Amendment that self prohibits unreasonable searches and seizures. So an officer can come in and say, I acted reasonably without invoking qualified immunity. Why do you need this additional level of protection?

John Malcolm:

Because part of the determination about whether an officer acted reasonably is what was the known state of the law at the time. And police officers are charged, fairly or unfairly, with knowing what that law is. And if the law is clearly established that, you know, the ideal level of generality, then they are held responsible. Period.

John Donvan:

Okay. In the background throughout this conversation has been the fact that qualified immunity applies to more people in government than just police officers. John, tell us what the state of play is in that regard and the rationale and your take on it.

John Malcolm:

Well, here are Anya and I might actually very well agree. You know, so we’ve talked about the importance and you’re right, the phrase came up a lot split second decisions, but qualified immunity applies to all government officials. So if you’re a school administrator, for instance, and somebody wants to go out and give a conservative speech or a religious speech on campus, and you say, no, no, no, the Bernie Sanders supporter can speak, but the Ron DeSantis supporter can’t speak. You know, that’s a constitutional violation for engaging in viewpoint discrimination. Qualified immunity applies to that person, too. These are people who are not making split second decisions. They can talk to other school administrators, they can consult with general counsel at the university or any other —

John Donvan:

But what’s the what’s the rationale for giving —

John Malcolm:

The rationale is, again, to give government officials breathing room. And I don’t think these government officials need breathing room because they are not faced with dangerous life or death. Do I pull the trigger or don’t I pull the trigger decision, which has to be made in a second.

[music playing]

John Donvan:

John Malcolm and Anya Bidwell, thank you so much for joining us on Intelligence Squared.

John Malcolm:

It’s been a pleasure.

Anya Bidwell:

Thank you.

John Donvan:

And the conversation you just heard, everyone perfectly captures why we do this. As you know, the way the discourse happens these days is pretty broken. And that is why it is so unusual, but also so refreshing to hear two people who disagree actually be able to converse rationally and civilly and shed light and agree from time to time with one another. And we know from so many of you that’s exactly why you listen to us and why I like to remind you that as you turn to us for that, we turn to you for support. We are a nonprofit at Intelligence Squared. It’s contributions from listeners like you that keep us going. So please consider sending us a buck or two or 10 or 50, whatever works. It’ll give you a stake in what we’re doing here every week, and it will mean that we are here next week and beyond.

I’m John Donvan. I want to say thanks so much for joining us, and we’ll see you next time.

Thank you for tuning into this episode of Intelligence Squared, made possible by a generous grant from the Laura and Gary Lauder Venture Philanthropy Fund. As a nonprofit, our work to combat extreme polarization through civil and respectful debate is generously funded by listeners like you, the Rosenkranz Foundation and Friends of Intelligence Squared. Robert Rosenkranz is our chairman. Clea Connor is CEO. David Ariosto is head of editorial. Julia Melfi, Shay O’Mara and Marlette Sandoval are our producers. Damon Whitmore is our radio producer, and I’m your host, John Donvan. We’ll see you next time.

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This transcript has been lightly edited for clarity. Please excuse any errors.