The Inequities of Qualified Immunity
The Civil Rights Act of 1871, originally enacted as the Ku Klux Klan Act, was intended to provide a civil remedy under federal law for persons whose constitutional rights have been violated by state actors, meaning state and local government, agencies, and departments and agents or employees of those entities. The Act was subsequently codified as 42 U.S.C. §1983 and is commonly referred to as “Section 1983.” It is this statute which is typically employed by injured or wronged individuals to obtain relief and damages for violation of their constitutional rights, including claims of wrongful arrest and/or excessive force by members of state and local law enforcement.
Unfortunately, the judicially created doctrine of “qualified immunity” makes it very difficult to recover even where the victim has been injured and his or her rights were undisputedly violated. The doctrine of qualified immunity requires that an injured individual prove that the right violated is one that was “clearly established,” such that every reasonable officer would understand that the specific conduct at issue amounted to a constitutional violation. Most courts also require the injured individual to produce a case in which the Supreme Court or Court of Appeals or the highest court of the applicable state has held the same conduct unconstitutional involving virtually identical facts. These and other elements of the qualified immunity doctrine have imposed a nearly insurmountable burden on victims seeking recovery for injuries experienced due to a violation of their constitutional rights.
“As a consequence of the qualified immunity doctrine as currently interpreted and applied by the courts, police officers lack adequate guidance to enable them to consistently and adequately conform their conduct to avoid violating constitutional rights, and thereby continue to engage in conduct that violates constitutional protections. As a further consequence of which there is disrespect for the law and law enforcement, because there are more and more innocent victims who are unable to recover for violations of their constitutional rights.” Committee On Social and Economic Justice, Report On Recommendations Regarding Standards, Policies, And Procedures Applicable To Police Use Of Force And The Coordination And Delivery Of Public Health And Safety Services (December 24, 2020), p. 21, n.16. Not surprisingly, the doctrine of qualified immunity has been intensely criticized by members of the public, policy-makers, legal commentators, and even the courts. Despite longstanding and widespread displeasure with the doctrine, as of this writing, qualified immunity remains the law of the land as interpreted and applied by the Supreme Court.
The End of Qualified Immunity?—the Original Text
There has been a recent game-changer in the qualified immunity debate. Scholarly research has recently revealed that the codification (the process of entering an existing law into a jurisdiction’s legal code/statute) of the Civil Rights Act of 1871 as found in 42 USC Sec. 1983 excluded a crucial clause, specifically, the language that the rights and remedies provided under the Act were to apply “any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding” was somehow excluded. See Alexander A. Reinert, Qualified Immunity’s Flawed Foundation, 111 CAL. L. REV. 201 (2023) (available at https://californialawreview.org/print/qualified-immunitys-flawed-foundation last accessed April 24, 2023). In layman’s terms, as drafted and passed, Congress made it clear that no existing law, statute, regulation, or prior customs was to be used to get around the rights and remedies created under the Civil Rights Act of 1871. The obvious intent and purpose of this clause was to exclude all common law immunities as a defense to claims under Section 1983—including qualified immunity. Accordingly, the text of Section 1983 as originally passed by the Congress undermines the legal analysis underlying the judicially created qualified immunity doctrine, specifically that certain common law immunity defenses could be raised to such claims. It is the original text passed by Congress in 1871 that is the binding law of the land that courts are therefore obliged to enforce, not the inaccurate codified version.
Accordingly, no competent jurist—certainly not the textualists and originalists that dominate our Supreme Court—can deny that the clause excluded in the codification process was intended to prohibit common law immunity defenses from being raised. The judicial branch must act now—at all levels and in all jurisdictions—to revoke this ill-conceived and what we now know to be illegitimate doctrine. Failure to do so would gravely undermine separation of powers and lead to a constitutional crisis where, for the first time in our history, the judicial branch is refusing to enforce the clear and express words of an undisputedly constitutionally sound statute contrary to the unmistaken intent and will of the legislative branch.
Sinapi Law Associates, Ltd. has a proven track record over a period of nearly 40 years of protecting and vindicating the civil rights and liberties of individuals. You can learn more about our civil rights practice here. If you believe your civil rights may have been violated, you can submit a request for a free case evaluation here or call us at 401-739-9690.
