Washington Lawyer - November/December 2020 - 33

FEATURE
unlikely that they will find themselves financially ruined because of
their job. On the other hand, when the state must pay compensation
for constitutional violations by its agents, it is more highly incentivized
to prevent their occurrence.
"First, victims of constitutional violations will more often be entitled to
remedies. And second, even though those remedies won't come out of
government officials' pockets, their employers will have a real financial
incentive to monitor their employees' conduct, train them properly, and
discipline or discharge them if they cannot adhere to the Constitution,"
Michelman says.
Fitzpatrick acknowledges that frivolous and harassing lawsuits are potentially problematic, but he points out that two-way fee-shifting provisions
could reduce the risk significantly. "The current law has a very generous
attorney fee provision . . . it's really almost unheard of to have fee shifting
one way; so, if you're worried about too many unmeritorious lawsuits
being filed - and I think that's a legitimate worry - the best way to do
it isn't by changing the liability standard. It is by changing how we pay
attorney's fees," he says.
Fitzpatrick also sees qualified immunity as a problem extending beyond
the regulation of police activity. "All of the focus right now is on police
officers, but this law affects every government official, whether they're
a police officer or not . . . I think a lot of conservatives are sensitive to

wanting to hold the government accountable when their constitutional
rights are violated," he says. Absent the ability to sue for damages, conservatives are left without enforceable restraint on government action.
"It isn't just a liberal thing to sue the government. What about gun
rights? Religious liberty? With qualified immunity you can't sue for
damages."
Baude sums up the potential impact of eliminating qualified immunity:
Constitutional violations would result in an expense to the state, providing a justification for proactive reform. Victims of constitutional violations would be entitled to monetary damages and legal vindication.
Most importantly, there is the symbolic impact of ensuring that police
officers are not above the law and must follow the same rules as the rest
of the citizenry.
Though Baude acknowledges the difficulty of the job faced by police
officers, he says that qualified immunity isn't helping. "I don't think we do
them any favors developing a bunch of constitutional laws that say what
the police are supposed to do, and then allowing them to ignore them if
they want to . . . We should train police in the rules, expect them to obey,
and have consequences when they don't obey them. . . . Treat them like
adults."
Reach D.C. Bar staff writer Jeremy Conrad at JConrad@dcbar.org.

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Washington Lawyer - November/December 2020

Table of Contents for the Digital Edition of Washington Lawyer - November/December 2020

Digital Extras
Your Voice
From Our President
Practice Management
Calendar of Events
Family Law Assistance Network feature
An Avalanche of Evictions feature
Pro Bono Partnerships Forged in Crisis feature
Help for Pro Se Litigants Feature
Qualified Immunity feature
Taking Legal Support to the Streets feature
Taking the Stand Turning off the White Noise of Systemic Racism
Taking the Stand Situational Principles Aren't Really Principles
On Further Review
The Learning Curve
Member Spotlight - A. Benjamin Spencer
Member Spotlight - Amber Harding
Worth Reading
Attorney Briefs
Speaking of Ethics
Disciplinary Summaries
Pro Bono Effect
A Slice of Wry
Washington Lawyer - November/December 2020 - Cover1
Washington Lawyer - November/December 2020 - Cover2
Washington Lawyer - November/December 2020 - 1
Washington Lawyer - November/December 2020 - 2
Washington Lawyer - November/December 2020 - 3
Washington Lawyer - November/December 2020 - Digital Extras
Washington Lawyer - November/December 2020 - Your Voice
Washington Lawyer - November/December 2020 - From Our President
Washington Lawyer - November/December 2020 - 7
Washington Lawyer - November/December 2020 - Practice Management
Washington Lawyer - November/December 2020 - Calendar of Events
Washington Lawyer - November/December 2020 - Family Law Assistance Network feature
Washington Lawyer - November/December 2020 - 11
Washington Lawyer - November/December 2020 - 12
Washington Lawyer - November/December 2020 - 13
Washington Lawyer - November/December 2020 - An Avalanche of Evictions feature
Washington Lawyer - November/December 2020 - 15
Washington Lawyer - November/December 2020 - 16
Washington Lawyer - November/December 2020 - 17
Washington Lawyer - November/December 2020 - Pro Bono Partnerships Forged in Crisis feature
Washington Lawyer - November/December 2020 - 19
Washington Lawyer - November/December 2020 - 20
Washington Lawyer - November/December 2020 - 21
Washington Lawyer - November/December 2020 - 22
Washington Lawyer - November/December 2020 - 23
Washington Lawyer - November/December 2020 - 24
Washington Lawyer - November/December 2020 - 25
Washington Lawyer - November/December 2020 - Help for Pro Se Litigants Feature
Washington Lawyer - November/December 2020 - 27
Washington Lawyer - November/December 2020 - 28
Washington Lawyer - November/December 2020 - 29
Washington Lawyer - November/December 2020 - Qualified Immunity feature
Washington Lawyer - November/December 2020 - 31
Washington Lawyer - November/December 2020 - 32
Washington Lawyer - November/December 2020 - 33
Washington Lawyer - November/December 2020 - Taking Legal Support to the Streets feature
Washington Lawyer - November/December 2020 - 35
Washington Lawyer - November/December 2020 - 36
Washington Lawyer - November/December 2020 - 37
Washington Lawyer - November/December 2020 - Taking the Stand Turning off the White Noise of Systemic Racism
Washington Lawyer - November/December 2020 - 39
Washington Lawyer - November/December 2020 - Taking the Stand Situational Principles Aren't Really Principles
Washington Lawyer - November/December 2020 - 41
Washington Lawyer - November/December 2020 - On Further Review
Washington Lawyer - November/December 2020 - The Learning Curve
Washington Lawyer - November/December 2020 - Member Spotlight - A. Benjamin Spencer
Washington Lawyer - November/December 2020 - Member Spotlight - Amber Harding
Washington Lawyer - November/December 2020 - 46
Washington Lawyer - November/December 2020 - 47
Washington Lawyer - November/December 2020 - Worth Reading
Washington Lawyer - November/December 2020 - 49
Washington Lawyer - November/December 2020 - 50
Washington Lawyer - November/December 2020 - Attorney Briefs
Washington Lawyer - November/December 2020 - Speaking of Ethics
Washington Lawyer - November/December 2020 - 53
Washington Lawyer - November/December 2020 - 54
Washington Lawyer - November/December 2020 - Disciplinary Summaries
Washington Lawyer - November/December 2020 - Pro Bono Effect
Washington Lawyer - November/December 2020 - 57
Washington Lawyer - November/December 2020 - 58
Washington Lawyer - November/December 2020 - 59
Washington Lawyer - November/December 2020 - 60
Washington Lawyer - November/December 2020 - 61
Washington Lawyer - November/December 2020 - 62
Washington Lawyer - November/December 2020 - 63
Washington Lawyer - November/December 2020 - 64
Washington Lawyer - November/December 2020 - 65
Washington Lawyer - November/December 2020 - 66
Washington Lawyer - November/December 2020 - 67
Washington Lawyer - November/December 2020 - A Slice of Wry
Washington Lawyer - November/December 2020 - Cover3
Washington Lawyer - November/December 2020 - Cover4
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