Ending Qualified Immunity Alone Won’t Solve It

States have the authority to limit recovery against their municipalities by simply setting statutory ceilings or “caps” on tort-based recovery — this is the hangover from the days of sovereign immunity.

But States cannot limit recovery in federal civil rights claims under Title 42 section 1983 — as the Supreme Court made clear in Felder v. Casey in 1988.

But because municipalities cannot be subjected to vicarious liability in civil rights cases under the common law doctrine of respondeat superior, the States (and their subdivisions) can easily avoid unlimited liability by granting cities nearly (or practically) unreviewable authority to determine whether and when they shall indemnify (insure) individual officers for their wrongs and delicts — including violations of individual civil rights.

Abolishing qualified immunity, which is itself a defense only available to individual officers, will not solve this structural problem.

Its abolition will likely only result in symbolic or Pyrrhic victories for plaintiffs — if they can be considered victories at all.

-Albert Turner Goins



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