In a new article forthcoming in the Georgetown Law Journal, Aaron Nielson and I explore the answer(s) to this question. Here’s the abstract:
Qualified immunity is increasingly controversial. But the debate about it is also surprisingly incomplete. Both qualified immunity’s critics and defenders have for too long overlooked the doctrine’s federalism dimensions. Yet federalism is at the core of qualified immunity in at least three respects. First, many of the reasons the U.S. Supreme Court has proffered for qualified immunity best sound in protecting the States’ sovereign interests in recruiting competent officers and providing incentives for those officers to faithfully enforce State law. Second, all fifty States have embraced indemnification policies premised on the existence of federal qualified immunity. Third, working against the backdrop of federal qualified immunity, state and local governments are engaged in robust policy experimentation about the optimal balance between deterrence and over-deterrence in their state-law liability schemes, thus exhibiting the “laboratories of democracy” benefits of federalism.
Drawing on findings from the most comprehensive review of state immunity and indemnification laws to date, this Article argues that these overlooked federalism dimensions have important implications for the future of qualified immunity. The observation, for instance, that the Supreme Court’s qualified immunity cases are grounded in protecting state sovereignty and have generated substantial reliance should matter for statutory interpretation and stare decisis. Similarly, the fact that state and local governments are experimenting about how to best use state law to achieve optimal deterrence—effectively eliminating or narrowing federal qualified immunity through state liability and narrower state immunities—further supports the notion that reform should be done legislatively, not judicially. Qualified immunity’s federalism dimensions further counsel that calls for the Supreme Court to revisit qualified immunity should be redirected to Congress and state legislatures.
The current draft of the paper can be downloaded from SSRN here. Comments are definitely welcome!