Reinert, Schwartz & Pfander’s Study on State Qualified Immunity Reforms

Alex Reinert, Joanna Schwartz & James Pfander have posted to SSRN Watching the Sky Not Fall: A Study of State Qualified Immunity Reforms. The abstract provides:

Police violence like that visited on George Floyd in the summer of 2020 and unfolding today in cities around the country, elicits strong reactions. Reform-minded critics of police brutality call insistently for changes in the law of police accountability and in particular the law of qualified immunity. Defenders of the status quo worry that reforms will lead to a parade of horribles: an explosion of litigation, much of it frivolous; an increase in government payouts and insurance premiums; interference with effective police work; and the introduction of more significant challenges to hiring and retaining qualified officers.

Although predictions about the dire consequences that would flow from reform are often based more on anecdote than careful empirics, they were successful in preventing the enactment of reforms in the aftermath of George Floyd’s murder, except in two states: Colorado and New Mexico. Both states adopted new laws making a series of changes that included withdrawal of the defense of qualified immunity for officers sued by the victims of police violence.

In this Article, we report the results of a study of the impact of these reform measures. We focused on the experience of the two reform states (Colorado and New Mexico) and compared them to states that made no similar changes (Utah and Washington). We collected data through a series of public information requests directed to law enforcement agencies in all four states. The requests sought pre- and post-reform information on litigation filings, payouts, insurance premiums, and employee turnover.

We find that the reforms do not appear to be associated with extreme or even significant increases in lawsuit filings, payouts, premiums, or employee turnover. Rather, the data paint a picture of remarkable stability in the incidence and budgetary impact of litigation against police officials and their agencies. While we caution against treating this preliminary study as the last word on the subject, we conclude that the post-reform resilience of the civil rights litigation system casts doubt on many of the most alarming predictions of the opponents of reform.