What If Qualified Immunity Isn’t Real?

TNR  | The provision comes from Civil Rights Act of 1871, also known as the Enforcement Act and the Ku Klux Klan Act. Radical Republicans in Congress and President Ulysses S. Grant pushed it through at the height of Reconstruction to strengthen protections for recently freed Black Americans living in the South. Section 1983 is most often associated with lawsuits over policing tactics and prison conditions since those interactions are far more likely to involve a person’s constitutional rights than, say, getting your driver’s license renewed at the DMV. But it can apply to all sorts of state and local officials, making it a valuable tool for Americans to vindicate their rights in court.

In response to Rogers’s lawsuit, the prison officials disputed the facts of the case and also invoked qualified immunity for their actions. As its name suggests, qualified immunity is a partial shield for state and local officials against Section 1983 claims. It falls short of the absolute immunity enjoyed by judges, prosecutors, and lawmakers for their official duties. But it can still be a potent barrier against lawsuits. An investigation by Reuters in 2020 found that courts were increasingly likely to use it to defeat excessive force claims against police officers.

Under the Supreme Court’s precedents, qualified immunity kicks in when a state or local official’s conduct does not violate “clearly established law” at the time of the violation. A federal district court ruled in favor of the prison officials in Rogers’s case and held that their conduct did not meet that threshold. The Fifth Circuit Court of Appeals upheld that decision in a March ruling.

“What happened to Rogers was unfortunate,” the panel concluded. “Maybe it was negligent. But was it the product of deliberate indifference? Not on this record. And even if it were, these officials did not violate clearly established law on these facts.”

But one of the Fifth Circuit panel’s three members, Judge Don Willett, wrote a separate concurring opinion. He explained that he agreed with his colleagues as a matter of precedent. He then took aim more broadly at qualified immunity, pointing to recent scholarship that cast serious doubt on its lawfulness and its historical basis.

“For more than half a century, the Supreme Court has claimed that (1) certain common-law immunities existed when Section 1983 was enacted in 1871, and (2) ‘no evidence’ suggests that Congress meant to abrogate these immunities rather than incorporate them,” Willett wrote. “But what if there were such evidence?”

That evidence, he wrote, can be found in a February article published in California Law Review by Alexander Reinart, a law professor at Yeshiva University in New York. Reinart, as Willett explained, noted that the Supreme Court had consistently read Section 1983 in the U.S. Code to not exclude so-called “common-law immunities,” which it then revived in the form of qualified immunity. But that reading was flatly contradicted by the text of Section 1983 itself when enacted in 1871.

“In between the words ‘shall’ and ‘be liable,’ the statute contained the following clause: ‘any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding,’” Reinart explained. “And it is a fair inference that this clause meant to encompass state common law principles.”

How had the courts missed this part of the text over the last 150 years? It was not removed by Congress itself in subsequent legislation. The answer lies in a scrivener’s error. The United States Code is, technically speaking, not actually the law: It is merely a compilation of the laws enacted by Congress that is presented in a more readable and usable format. When it was first compiled almost a century ago, Reinart noted, it drew upon an earlier official attempt at codification known as the Revised Statutes of the United States, which were published in 1874.

The Revised Statute’s first edition was somewhat notorious for its errors, which prompted repeated updates and eventually a wholesale replacement. “Although the Revised Statutes were supplemented and corrected over time until the first United States Code was published in 1926, the Reviser’s error in omitting the Notwithstanding Clause from the reported version of the Civil Rights Act of 1871 was never corrected,” Reinhart noted.

This is the civil rights lawyer’s equivalent of double-checking the stone tablets that Moses brought down from Mount Sinai and finding that one actually says, “Thou shalt commit adultery.” Reinart’s discovery—and he does appear to be the first person to discover this—was a sensational find when his paper was published earlier this spring, even garnering coverage in The New York Times. The missing text upends the origin story for qualified immunity as a doctrine and indicates that it may be fundamentally flawed.

“These are game-changing arguments, particularly in this text-centric judicial era when jurists profess unswerving fidelity to the words Congress chose,” Willett wrote in his concurring opinion. “Professor Reinert’s scholarship supercharges the critique that modern immunity jurisprudence is not just atextual but countertextual. That is, the doctrine does not merely complement the text—it brazenly contradicts it.”