Courts

Qualified Immunity Was Just A Legal Mistake This Whole Time?

This could be the bloodiest 'forgot to carry the one' incident that everyone just ran with in American history.

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Police Officer Pointing Handgun

He’s probably aiming at an innocent dog (image via Getty)

On many an occasion, punishment of a police officer’s use of what most reasonable people would consider to be an excessive use of force has been escaped due to qualified immunity. Like the time the police tased a guy covered in gasoline intending to set them on fire, or that time they stole over $225k and got away with it, or jumped a guy for trying to get in his house without even wearing their uniforms… the list goes on. But if common sense were enough — okay, let’s drop the pretense here, this is law, common sense is about as real as Harlan Crow being sad about bankrolling Justice Thomas — there is a strong argument that qualified immunity as we know it today spits in the face of what Congress actually wanted! From the ABA Journal:

Scholars and courts have overlooked what could be a scrivener’s error that changes the text of the law that permits lawsuits against state and local government officials for constitutional violations, according to a February law review article.

The “lost text of Section 1983” makes clear that Congress wanted to abrogate traditional immunities when it enacted the law now known as Section 1983 of the Civil Rights Act, according to the California Law Review article by Alexander A. Reinert, a professor at the Benjamin N. Cardozo School of Law at Yeshiva University.

The omitted language calls into question the doctrine of qualified immunity, which protects officials from Section 1983 suits, except for violations of clearly established law, wrote Judge Don R. Willett of the 5th U.S. Circuit Court of Appeals at New Orleans in a March 30 concurrence to his opinion in a qualified immunity case.

Huge claim to be sure. To be safe, let’s do what it appears many judges, including the members of the Supreme Court, have failed to do properly — read the damned thing:

Here is the text of the original version of the law. The language in italics was omitted from the first federal compilation of federal laws in 1874 and was never corrected, according to Reinert: “Every person who, under color of any statute, ordinance, regulation, custom or usage, of any state or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall, any such law, statute, ordinance, regulation, custom or usage of the state to the contrary notwithstanding, be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.”

And while it is true that Congressional intent (should) be determinate of what the laws on the books mean, that alone is not enough to act like Marbury v. Madison never happened.

The omitted language calls into question the doctrine of qualified immunity, which protects officials from Section 1983 suits, except for violations of clearly established law, wrote Judge Don R. Willett of the 5th U.S. Circuit Court of Appeals at New Orleans in a March 30 concurrence to his opinion in a qualified immunity case.

Willett nonetheless ruled that qualified immunity protected inmate [sic] Kevion Rogers, who didn’t receive immediate medical attention after a barn roof fell on his head. Willett said the appeals court was bound by controlling precedent.

…

“It seems a tall order to square the modern qualified-immunity regime with Congress’ originally enacted language. But however seismic the implications of this lost-text research, ‘as middle-management circuit judges,’ we cannot overrule the Supreme Court,’” Willett wrote, quoting from one of his prior opinions. “Only that court can definitively grapple with [Section] 1983’s enacted text and decide whether it means what it says—and what, if anything, that means for [Section] 1983 immunity jurisprudence.”

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Weakened qualified immunity protections would be huge. At this point, I wouldn’t be more surprised if the public has seen more chokehold and body-slam footage from the LAPD and NYPD than the WWE and the UFC. Speaking of the LAPD, it is definite that nothing less than a Supreme Court ruling could change their stance on qualified immunity — spitting in the face of common sense be damned:

I hope SCOTUS gets on this, and quickly.

Is Qualified Immunity Based On Scrivener’s Error? Law Review Article Makes Case [ABA Journal]

Earlier: Police Can Legally Set You On Fire Because Someone In The 1800s Made A Copying Error

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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