In a routine decision In March, a unanimous three-judge panel of a federal appeals court ruled against a Texas inmate who was injured when the roof of the pig barn where he worked collapsed. Unsurprisingly, the court said the inmate could not overcome qualified immunity, the much-criticized legal shield that protects government officials from lawsuits for constitutional violations.
The author of the sentence, Judge Don R. Willett, then he did something unusual. Issued a separate concurring opinion to call attention to the “game-changing arguments” in a recent law review articleone that seemed to show that all of the Supreme Court’s qualified immunity jurisprudence was based on error.
“Hope for?” Judge Willett wrote in disbelief.
In 1871, after the Civil War, Congress enacted a law that allowed state officials to be sued for violations of constitutional rights. But the Supreme Court has said that the law, usually called Section 1983, did not displace the immunities that protected officials that existed when the law was enacted. The doctrine of qualified immunity is based on that premise.
But the premise is wrong. Alexander Reinerta professor at the Benjamin N. Cardozo School of Law, wrote in the article, “The Flawed Basis of Qualified Immunity,” published in The California Law Review.
Between 1871, when the law was enacted, and 1874, when a government official produced the first compilation of federal laws, Professor Reinert wrote, 16 words of the original law disappeared. Those words, Professor Reinert wrote, showed that Congress had effectively lifted existing immunities.
Judge Willett considered the implications of the finding.
“What if the Reconstruction Congress had explicitly stated, right there in the original statutory text, that it was striking down all common law defenses against Section 1983 actions?” asked Judge Willett. “That is, what if the literal language of Congress unequivocally negated the original interpretive premise of qualified immunity?”
The original version of the law, which was enacted in 1871, said that state officials who subject “any person within the jurisdiction of the United States to the deprivation of any of the rights, privileges, or immunities guaranteed by the Constitution of the United States shall any law, statute, ordinance, regulation, custom, or usage of the state to the contrary notwithstandingshall be liable to the injured party in any legal action, trial in equity, or other appropriate proceeding for redress.”
The italicized words, for reasons lost to history, were omitted from the first compilation of federal laws in 1874, which was prepared by a government official called “the reviser of federal statutes.”
“The reviewer’s error, whether by omission or commission, has never been corrected,” Judge Willett wrote.
The logic of the Supreme Court’s qualified immunity jurisprudence is that Congress would not have displaced existing immunities without saying so. But Professor Reinert argued that Congress said it, in so many words.
“The omitted text confirms that the Reconstruction Congress of 1871 was intended to provide a comprehensive remedy for civil rights violations by state officials,” Professor Reinert said in an interview, noting that the law was enacted shortly after the three constitutional amendments ratified after the Civil War. : ban slavery, insist on equal protection and protect the right to vote.
“Together with other contemporary evidence, including legislative history, it helps show that Congress intended to fully enforce the Reconstruction Amendments through a powerful new cause of action,” Professor Reinert said.
Judge Willett, who was appointed by President Donald J. Trump, focused on the words of the original statute “in this text-centric judicial age, when legal scholars profess unwavering fidelity to the words chosen by Congress.”
Qualified immunity, which requires plaintiffs to prove that officials violated a constitutional right clearly established in a previous ruling, has been widely criticized by academics and judges across the ideological spectrum. Justice Clarence Thomas, for example, wrote that doesn’t seem to resemble immunities available in 1871.
Professor Reinert’s article said that “it is only half the story”.
“The real problem,” he wrote, “is that no qualified immunity doctrine should apply in Section 1983 actions, if the courts hold true to the language adopted by the enacting Congress.”
joanna schwartz, professor of law at the University of California, Los Angeles, and author of “Shielded: How the Police Became Untouchable,” said that “there is general agreement that the qualified immunity doctrine, as it currently operates, does not seem to nothing to no protection.” that may have existed in 1871.” The new article, he said, identified “additional causes for skepticism.”
It added that “Judge Willett’s concurring opinion has brought much-needed and well-deserved attention to Alex Reinert’s insightful article.”
Justice Willett wrote that he and his colleagues are “mid-level circuit judges” who cannot overrule Supreme Court decisions. “Only that court,” he wrote, “can definitively deal with the enacted text of Section 1983 and decide whether it means what it says.”
Lawyers for injured Texas inmate Kevion Rogers said they were weighing their options.
“The scholarship Judge Willett discovered in his concurrence is undoubtedly important to the arguments civil rights litigants may make in the future,” attorneys Matthew J. Kita and Damon Mathias said in a statement.
“Normally,” they added, “you cannot raise a new reversal argument for the first time on appeal, let alone in the United States Supreme Court. But one would think that if the Supreme Court recognizes that he has been reciting and applying the statute incorrectly for nearly a century, there must have been some remedy available to litigants whose sentences are not yet final.