Professor Explores Financial Implications of Repealing Qualified Immunity

Kenneth Abraham

Professor Kenneth S. Abraham is a David and Mary Harrison Distinguished Professor of Law at UVA Law. Photo by Jesús Pino

February 18, 2021

What is one of the costs — literally — of repealing qualified immunity for law enforcement?

University of Virginia School of Law professor Kenneth S. Abraham, one of the nation’s leading scholars and teachers in the fields of torts and insurance law, examines the question in a new paper. “Police Liability Insurance after Repeal of Qualified Immunity, and Before” is forthcoming in the Tort Trial and Insurance Practice Law Journal.

In response to a nationwide racial justice movement, legislation has been proposed to repeal or modify the defense of qualified immunity in lawsuits against police for deprivation of individuals’ civil rights under Section 1983 in federal law. These reforms would expand the liability of police by closing off a defense that limits such liability.

Abraham, who takes no position on repeal itself, talked to UVA Law about how changing qualified immunity could affect an already burdened liability market.

What inspired you to write this paper?

With the Black Lives Matter movement and widely publicized incidents of alleged excessive use of force by police, there has been a lot in the news over the last year about repealing “qualified immunity.” That doctrine protects police and other law enforcement officers against liability for depriving an individual of their civil rights under certain circumstances. Police officers are often covered by the liability insurance that the cities and towns employing them have purchased. So a question that naturally occurred to me, because I am an insurance law scholar, is what impact repeal of qualified immunity would have on the availability and affordability of this insurance. Consequently, I looked into the issue, and decided to write about it. I don’t take a position in the article about whether it would be a good thing as a matter of policy to repeal qualified immunity; I’m not an expert in the underlying liability issues. But it would be sensible, in thinking about repeal, at least to consider and weigh in the balance the insurance implications of doing so. That’s what I wrote about.

What is the liability market, and what is its status today?

There is both a commercial market and a set of intergovernmental municipal insurance pools that operate much like mutual insurers. Both markets have become very tight in the past year or two, with premiums increasing and insurance becoming less available. This is partly because insurance markets are generally tight right now, but mostly, I think, because there is not only increased police liability, but also because there is a lot of uncertainty about what the future will bring in this field. Insurance operates best when risk is predictable, and at present insurers are less confident about their predictions than they were until recently.

What kinds of liability already exist for government entities?

There is liability on the part of municipalities for their own civil rights violations, as well as liability on the part of individual police officers. The municipalities are not vicariously liable for police violations, but the municipalities purchase liability insurance for their officers, so economically it amounts to much the same thing.

What impact, if any, would ending qualified immunity have on individual government officials? Would they need insurance?

Police officers already need, or at least would be well-advised, to have such insurance, and they do, as I just indicated. But they would need the insurance even more, because qualified immunity protects them against liability if they act in good faith and turn out to have violated a constitutional right that was not previously clearly recognized by the courts. If those defenses are no longer available, officers would face expanded liability.

Do you think heightened liability would incentivize police departments and localities to enact reforms to prevent law enforcement misconduct?

There are a lot of complicated constraints on the incentives created by the threat of Section 1983 liability. Governmental financial responsibility does not operate in the same manner as in the private sector, police unions often limit the practical authority of police chiefs, etc. So it’s hard to say.

Would limiting rather than outright ending qualified immunity be a solution?

There have been some proposals for limiting rather than repealing qualified immunity, but that probably would only partially address the issue. The insurance market is already in turmoil, and any expansion of liability is likely to aggravate that turmoil.

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