In the wake of Derek Chauvin’s conviction for killing George Floyd, policing reform continues to be debated in Congress, and a bipartisan group of legislators is making progress toward a solution on the key issue of qualified immunity. Last week, Republican Senator Tim Scott proposed, as a possible compromise, the idea of shifting financial responsibility away from individual officers and onto police departments themselves. Though his public statements and news reports don’t provide many details at this point, they seem to suggest a view that qualified immunity should not preclude plaintiffs from recovering damages in civil rights cases, but that only police departments, not individual officers, should be financially liable for such damages.

The fact that Tim Scott—who last year introduced a policing reform bill that did not address qualified immunity at all—is proposing even this much is a sign of just how much progress has been made in these discussions. And at first blush, employer liability sounds like a tempting solution to both the practical and political challenges of qualified immunity: it gives victims of police misconduct the ability to recover damages, while sidestepping the political controversy around suing officers personally when they violate people’s rights.

The problem, however, is that relying solely on employer liability also sidesteps the individualized accountability that civil rights laws like Section 1983 are intended to provide, but which qualified immunity has severely undermined. Employer liability is an important part of the solution, but it must be a supplement to qualified immunity reform, not an alternative to it. In the remainder of this post, I’ll explain in detail several related reasons why employer liability alone would be an ineffective and possibly even counter-productive “compromise” on this issue.

1. Employer liability doesn’t give officers individualized incentives to respect people’s constitutional rights.

Civil rights laws like Section 1983 have both a remedial and a deterrent purpose. Victims whose rights are violated deserve a remedy, but the existence of that remedy is also supposed to deter individual actors from violating people’s rights in the first place. Qualified immunity has sabotaged both of these purposes, but employer liability only addresses the remedial side of this calculus.

If police officers are told, in essence, not just that they’re protected by qualified immunity, but that they can’t be held liable for rights violations at all, that hardly gives them the best incentives to ensure they respect people’s constitutional rights. To the contrary, it could make matters worse. Even if victims have an easier time recovering money damages under an employer-liability-only regime, the total number of rights violations might go up, not down, if the officers who commit these violations are off the hook entirely.

Of course, even today police officers are nearly always indemnified by their employers for settlements or judgments in civil rights cases. Thus, one could argue that employer liability doesn’t undercut individualized incentives any more than our current regime, in which officers almost never pay a penny anyways. This is the argument I understand Billy Binion to be making in his recent article on the subject, in which he quotes Joanna Schwartz to say that “requiring the city to bear the costs of these suits, instead of officers … would make transparent what already happens in over 99 percent of cases.”

But there’s a major difference between some skin in the game, and no skin in the game. Yes, officers are usually indemnified, but indemnification isn’t guaranteed, which means officers must keep in mind that there’s still an outer-bound of misconduct for which they might actually face personal consequences. As Schwartz herself notes, “indemnification statutes aren’t watertight” and “officers can be denied indemnification in some states it they acted ‘maliciously’ or if punitive damages are awarded against them.” Indemnification may somewhat temper individual officer incentives, but an employer-liability-only approach removes those incentives entirely.

Indeed, we don’t have to speculate about whether the possibility of individual liability affects officer incentives—we’re already seeing the evidence of that from state-level qualified immunity reform. In response to the civil rights law passed by the New York City Council at the end of March, the NYPD’s union recently sent a letter to its members, informing them that—in the absence of qualified immunity—officers will now actually have to avoid violating people’s rights.

Here’s the most critical excerpt from this astonishing letter:

As a direct result of the passage of this law, and the unavailability of the defense of qualified immunity under its provisions, we advise that you proceed with caution when taking any police action which could lead to physical engagement with any person, and avoid physical engagement to the greatest extent possible while also assuring your own safety and the safety of others. Also, you are strongly cautioned against engaging in any stop & frisk (unless doing so for your own or others’ safety), search of a car, residence, or person unless you are certain that you are clearly and unequivocally within the bounds of the law .…

“In other words,” as IJ’s Chad Reese explains in an op-ed today, “when you remove qualified immunity, police officers start taking constitutional rights more seriously.”

It is rather stunning to see a police union openly acknowledge that, without qualified immunity reform, officers would not need to “proceed with caution” when using force against citizens, nor worry too much about whether their searches were lawful. It’s likewise stunning to see the law-enforcement lobby so candidly characterize the need for officers to respect people’s rights as a lamentable burden—in the union attorneys’ own words, the possibility of officers being sued for rights violations is “a reality of our job that is made worse by this law and the City’s increasing propensity to decline indemnification to our officers.”

What is not stunning, however, is the common-sense notion that giving people a financial incentive to avoid unlawful behavior deters that behavior. That is a feature, not a bug, of Section 1983, and any reform of qualified immunity must ensure that these incentives are corrected. Employer liability, on its own, does not do that.

2. Employer liability does not remedy how qualified immunity has undermined public trust in police officers.

It shouldn’t be a surprise to anyone who has turned on the news in the last several years that we are in the midst of a national crisis of confidence in law enforcement. Gallup reported last summer that, for the first time in the history of its polling, a majority of Americans do not have faith in the police. This plummeting confidence is fueled by the fact that police officers are rarely held accountable when they commit misconduct—and that lack of accountability, of course, is largely the product of qualified immunity.

Qualified immunity therefore deprives police officers of the public trust and confidence that is necessary for them to do their jobs. As explained in a recent letter by the Law Enforcement Action Partnership: “Trusting relationships between police and civilians are not just a preference; they are a requirement for public safety. Without these relationships, police are left to investigate crimes with little to no help from the people we serve. People have so little trust in us that a majority of violent crimes go unreported, even by victims themselves.” Thus, far from protecting professional police officers, qualified immunity is actually making their jobs harder.

Making police departments liable instead of individual officers doesn’t fix this problem. Yes, employer liability would at least ensure that victims of misconduct would be financially compensated, but civil rights lawsuits aren’t just about money. They also allow people to vindicate their rights by getting formal recognition from the system when a public official has wronged them. There’s a reason the victims of violent crimes care about whether their offenders are criminally convicted, even though a conviction doesn’t put money in their pocket. The same is true of civil rights plaintiffs, even though their cases also involve money damages.

A “solution” to police accountability that makes it impossible to hold officers liable is not just misguided; it’s a step backwards. Public trust in law enforcement is low enough already, and it will hardly help matters to say to the public, “In response to your concerns, we’re actually going to make it impossible to hold officers liable for rights violations—but don’t worry, you, the taxpayer will now be on the hook financially for their misconduct!” We owe it to both the victims of police misconduct and to professional, rights-respecting officers to find a solution that helps restore public trust in the police, not one that will create even more animosity.

3. Shared liability between officers and police departments is better than employer liability only.

As I mentioned above, I absolutely agree that making police departments liable is a crucial component of policing reform. After all, most officers will lack the resources to cover the entirety of a major judgment against them, and it’s perverse to deny compensation to victims only in those cases where the misconduct is so severe that indemnification might be denied. I recognize and share Schwartz’s concern that “[g]overnment attorneys use the threat that they will deny officers indemnification strategically, to negotiate lower settlements, avoid punitive damages awards, or reduce jury verdicts after trial.”

But employer liability should be created in addition to individual liability, not instead of it. The New York City law, for example, makes individual officers liable for Fourth Amendment violations (and clarifies that qualified immunity is not a defense), but it also provides that “[t]he employer of a covered individual … is liable, based upon the conduct of such covered individual.” In other words, the individual officer and the department share liability for rights violations committed by that officer.

A similar shared-liability regime could easily be enacted at the federal level, and its benefits are numerous. It guarantees that victims of misconduct will always get a complete remedy. It provides accountability for individual officers while still recognizing that employers will generally be the ones paying for the bulk of any judgments. And, perhaps most importantly, it both permits and incentivizes states and localities to experiment with better alternatives to our present indemnification regime.

For example, in June 2020 Colorado enacted qualified immunity reform that (1) allows individuals to sue officers who violate their constitutional rights, without qualified immunity; (2) presumptively guarantees full indemnification by the officer’s employer; but (3) if the department determines the officer “did not act upon a good faith and reasonable belief” that their conduct was lawful, makes the officer personally responsible for a small portion of the judgment (5% or $25,000, whichever is less). In other words, it gives officers skin in the game, but to a degree they could reasonably be expected to cover.

If Congress created shared liability between officers and departments, it would effectively leave to states and localities the choice about how best to apportion responsibility. Some would presumably adopt Colorado-style caps on officer contribution, whether by statute or by contract. Some might employ a system where departments fund individual officer liability insurance, as both Cato and Professor Deborah Ramirez have suggested. And, if a particular jurisdiction truly wanted to avoid individual liability entirely, they could do that too, simply by guaranteeing—as New Mexico recently did—that public employers are always responsible for the entire judgment. Over time, we’d be able to see which approaches were more and less successful, and the better ones would spread.

But if Congress mandates, at the federal level, that it is only police departments that can ever be liable, it will undercut all of these efforts. After all, there’s no use—and indeed, no real possibility—of experimenting with officer contribution or insurance proposals when officers can’t be liable in the first place. Shared liability at the federal level is the approach to policing reform that will best allow us to see the virtues of federalism in action; employer-liability-only would impose a single ineffective and stagnant solution on the entire country.

* * *

There are several policymakers, scholars, and activists who are deeply committed to the problem of police accountability and have advocated in good faith for an employer-liability model. As I’ve mentioned several times, I agree wholeheartedly that employer liability is an essential part of a solution. But I hope this post has helped explain why it’s not a sufficient solution.

This is not about letting the perfect be the enemy of the good. There’s absolutely room to discuss compromise solutions to qualified immunity that would reform the doctrine without abolishing it entirely. Congress could, for example, adopt something akin to the bill introduced by Republican Senator Mike Braun in the last Congress, which would have eliminated the “clearly established law” standard but replaced it with good-faith safe harbors for individuals relying on state law or judicial precedent. In the specific context of policing, Congress could even consider a defense for officers relying in good faith on department policy, so long as the department itself was still liable.

But a “compromise” on qualified immunity that ignores individual liability entirely should be a non-starter for anyone serious about policing reform. We are in the midst of a national crisis of confidence in law enforcement, and that crisis is fueled by a lack of meaningful accountability. It would be perverse and counter-productive to try to remedy that crisis by making it harder than it already is to hold officers accountable for violating people’s constitutional rights.