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

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