When the new Congress and President take office, their agenda will include a push to eliminate qualified immunity protections from law enforcement officers. Doing so, however, would be unwise and unsafe. It will cause an even greater reduction in our already declining law enforcement numbers, lead to harassing lawsuits that could bankrupt counties and municipalities, and make cops hesitant to do their jobs effectively. 

The United States Supreme Court has declared that government officials are immune from personal liability when “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  As the liberal Justice William Brennan summed it up: “Where the law is thus unsettled, the official ought not to be culpable if he exercises his best judgment.” 

In the Court’s estimation, law enforcement needs qualified immunity protections because it is nearly impossible to account for every situation in which an officer might find herself. Its purpose, in part, is to protect law enforcement from lawsuits when they make reasonable mistakes in the course of their work.

Opponents of qualified immunity, however, argue that it allows officers to escape punishment for wrongdoing. They point out that it allows officers to escape liability when they violate a constitutional right that is not yet clearly established under law. They therefore advocate for the complete abolition of qualified immunity. 

While there are concerns with how some courts have applied qualified immunity, removing it altogether would be dangerous. 

Removing qualified immunity, and thereby making individual law enforcement officers personally liable to pay damage awards, will cause officers to leave their profession in historic numbers. Law enforcement officers are already retiring in large numbers, with fewer and fewer recruits to replace them. Abolishing qualified immunity and placing officers’ personal pocketbooks on the line would only exacerbate their exodus. Officers do not have the financial means to defend against lawsuits or to pay damages if they are found reasonably to have erred.  

Opponents respond that officers could purchase insurance coverage to hedge against the risk of large damages—much like doctors against medical malpractice—or that they could strike agreements with their municipalities to cover their litigation expenses. But this protection is little protection at all. Municipalities might not be able to afford to indemnify police. Insurance premiums may be too expensive for either the officers or their municipalities. And insurance carriers may jack up premiums, especially if faced with a tidal wave of ideologically-based lawsuits against cops. Unable to continue, police officers will retire, leaving us less safe.

Removing qualified immunity might even lead some communities to go bankrupt. Consider the City of Maywood, California. In 2010, it lost its liability insurance after being sued repeatedly. It had to shut down its police force and rely for protection on the Los Angeles Sheriff’s Department. The Village of Lincoln Heights, Ohio shuttered its police force after its insurance premiums rose to 10% of its budget after repeated lawsuits against it. Niota, Tennessee had to shut down after lawsuits made it too risky to function. 

The point is not that these municipalities were blameless, nor that we necessarily would see widespread bankruptcies. It is simply to say that lawsuits against municipalities can and have bankrupted them and left citizens both poorer and less safe.

It is quite possible, perhaps even likely, that we would see greater numbers of lawsuits against law enforcement, many of them frivolous, if we removed qualified immunity. Those who seek to defund and defenestrate the police could file suit after suit against officers and municipalities to drive them to the brink. One need only look to the harassing litigation against businesses and hospitals. They are often the victims of frivolous though costly lawsuits. 

One could also look to what opponents of capital punishment have done. Justice Alito called their actions “a guerilla war against the death penalty” because they have attacked it on every front in the courts and elsewhere. It is possible that well-funded interests, hostile to law enforcement generally, will besiege them with lawsuits to drive up their premiums and defund them through indirect means.

Finally, removing qualified immunity very well may discourage law enforcement from earnestly performing their tasks.  As the Supreme Court stated, the“fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible public officials…” The data suggest that officers carry this concern and that it does affect some of their work. One study of 800 police chiefs found that 53% of them believed that “lawsuits or the fear of lawsuits made it more difficult for them or their officers to do their job.” Other studies reveal that substantial numbers of law enforcement officers believe the threat of liability hinders their performance. 

Importantly, these findings obtain under conditions of qualified immunity. Remove qualified immunity and you make officers more fearful and likely less effective. 

It’s important to note that law enforcement today respond to numerous events that they are not obligated under law to address. If we remove their protections, it is possible they will simply wait for such situations to play out before they engage. That makes no one safer. 

If there is a problem with qualified immunity, it is not with the defense itself but rather how some courts have interpreted it. The CATO Institute, for example, describes a number of cases in which courts have applied it in questionable ways. The Supreme Court has said that plaintiffs do not need to find a case with exactly the same facts to show a clearly established constitutional right, but courts have nevertheless held plaintiffs largely to that high standard. (The Supreme Court itself has added to the confusion.) Rather than terminate qualified immunity altogether, opponents might consider focusing on the legal standard required to define a clearly established right.

As conservatives, we can and should reform aspects of our criminal justice system. In fact, there is a strong conservative case to be made for criminal justice reform, as the American Conservative Union and others have shown. But one thing we should not do is eliminate qualified immunity for police officers. Doing so would put us all in danger.

Ryan J. Owens, J.D., Ph.D., is an attorney, the George C. and Carmella P. Edwards Professor of American Politics, and the Director of the Tommy G. Thompson Center on Public Leadership at the University of Wisconsin-Madison. He writes this in his personal capacity.