They fail because police officers can claim qualified immunity from liability by showing that the rights they violated weren’t “clearly established” by decisions in prior cases. As the court explained in Malley v. Briggs (1986) and reaffirmed in McCleary v. Navarro (1992), qualified immunity is designed to limit liability to “the plainly incompetent” and “those who knowingly violate the law.”
This immunity is supposed to protect well-meaning but mistaken officials from having to defend themselves in court and being deterred by liability fears from doing their jobs. But UCLA law professor Joanna Schwartz has shown that qualified immunity usually isn’t granted until well into the litigation, after all the costs of discovery have been incurred. This discourages victims’ lawyers from taking on such cases in the first place.
Ms. Schwartz has also shown that errant cops “are almost always indemnified and thus rarely pay anything towards settlements and judgments entered against them.” Police unions, sympathetic higher-ups and secrecy when the rare disciplinary hearing is held further minimize the likelihood of serious sanctions. With all these protections, Section 1983 actions against individual police officers deter haphazardly, if at all.
A straightforward change to Section 1983 could eliminate these two linked injustices, overprotection of bad cops and excessive barriers to recovery by their victims.