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Here’s a quick primer on how qualified immunity and indemnification relate: QI protects by requiring cases be dismissed if no prior court decision “clearly establishes” the law. Indemnification protects by requiring local governments to pay if their officers are found liable.1/5 https://twitter.com/marshallproj/status/1341182417554583557
Defenders of QI say officers will be bankrupted if the defense is eliminated. This is simply untrue because officers are almost always indemnified-even if eliminating QI meant more officers were found liable, indemnification agreements would require cities to pick up the tab.2/5
So indemnification lessens the $ effect of these suits on officers. But that’s not necessarily a bad thing -most officers couldn’t afford to pay a large settlement or judgment. So without indemnification, victims of police misconduct would not be compensated for their losses.
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This is why the Colorado statute is so smart. It eliminates QI, it requires indemnification (unless the officer was criminally convicted) but it requires an officer who acted in bad faith to make a contribution of 5% or 25k-and if they can’t afford to pay the city pays it all.4/5
So, by eliminating QI the Colorado statute allows people whose rights have been violated to win; by requiring indemnification it makes sure plaintiffs who win are paid; by requiring contributions by bad faith actors it creates a sanction for violating constitutional rights. 5/5
