“Plaintiffs must produce precedent even as fewer courts are producing precedent,” Willett wrote. “Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.”
Section 1983 is a bulwark of American liberty. Named for its place in the U.S. Code, the provision traces back to Reconstruction and the Civil Rights Act of 1871, also known as the Ku Klux Klan Act. Federal efforts to build a multiracial democracy in the South after the Civil War faced violent resistance from armed groups of ex-Confederate veterans, notably the Klan, which frequently acted with tacit support from local officials. They waged a domestic-terrorism campaign by killing black Americans and white Republicans, burning down their homes and churches, and intimidating local communities into accepting white-supremacist rule.
The Klan posed an unprecedented threat to American democracy, and the government armed itself with unprecedented powers in response. The Ku Klux Klan Act gave federal prosecutors new powers to charge and convict Klansmen who tried to intimidate black voters and candidates. It also included the provision now known as Section 1983, which gives private citizens a mechanism to sue state and local officials for violating federal constitutional rights in their official capacities. It was bold legislation by any era’s standards, and not without its critics. Democrats denounced Grant as a would-be dictator who governed the South by military rule. “The Ku Klux Klan Act pushed Republicans to the outer limits of constitutional change,” historian Eric Foner wrote.
The new tools allowed Grant and the newly created Justice Department to smash the Klan for a generation. Many of those tools were later taken away by the Supreme Court, which narrowly interpreted the Reconstruction Amendments and weakened the federal government’s power to enforce them. “The nation’s founding document is no match for a dedicated majority of justices committed to circumventing its guarantees,” The Atlantic’s Adam Serwer recently observed. But Section 1983 itself survived, dormant but intact.
Its reawakening came during the Second Reconstruction in the 1960s. In the 1961 case Monroe v. Pape, a black family and their six children in Chicago sued the city’s police department for carrying out a warrantless nighttime raid on their home. “The police officers broke into petitioners’ home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers,” Justice William O. Douglas later recounted in the court’s majority opinion. Officers hauled the father in for interrogation about a recent murder, held him without access to a lawyer, and eventually released him without charges.
The court reaffirmed that the lawsuit fell within Section 1983’s original purpose and design. “It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies,” Douglas noted. The court’s ruling in Monroe sparked new interest in using the 1871 statute.
At first, the Supreme Court said, public officials could cite traditional common-law defenses of good faith and reasonableness to overcome Section 1983 lawsuits. But the court abandoned those subjective defenses in 1982 for an objective formulation that survives today, and which the doctrine’s critics are challenging on multiple fronts. The Supreme Court has justified qualified immunity as a protection for government officials from the costs of litigation as well as the stresses of discovery and trial. But there doesn’t appear to be empirical evidence that it actually fulfills this purpose. Joanna Schwartz, a UCLA law professor, studied how courts applied the doctrine in five federal court districts. In the cases she examined, qualified immunity only led to dismissal before the discovery phase in 3.2 percent of the cases where it was raised.
Schwartz noted that the low dismissal rate doesn’t reflect qualified immunity’s overall impact. First, she argued, the Supreme Court’s habit of upholding it at almost every opportunity may send a message to law-enforcement officers that they can act with impunity. Second, she noted that qualified immunity may act as a deterrent in challenging other violations of constitutional rights. Finally, she warned that the court’s current approach could undermine police departments’ ability to properly train officers. “When the Supreme Court suggests that only its decisions can clearly establish the law, and then repeatedly grants qualified immunity without ruling on the underlying constitutional questions, law enforcement agencies have little in the way of guidance about how to craft their policies,” Schwartz wrote earlier this year.
Justice Sonia Sotomayor in particular has raised concerns about the impact of the court’s qualified-immunity rulings when it comes to police shootings. “As I have previously noted, this Court routinely displays an unflinching willingness to summarily reverse courts for wrongly denying officers the protection of qualified immunity but rarely intervenes where courts wrongly afford officers the benefit of qualified immunity in these same cases,” she wrote in a dissent in the 2018 case Kisela v. Hughes. “Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.”
The doctrine is also under siege from originalists, who argue that the court’s purported historical basis for qualified immunity appears to be groundless. In a 2017 article, University of Chicago law professor William Baude noted that the court typically advances three justifications for the doctrine. “One is that it derives from a common law ‘good faith’ defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides ‘fair warning’ to government officials, akin to the rule of lenity,” he wrote. But Baude found those arguments wanting: “There was no such defense, there was no such mistake, and lenity ought not to apply.”
In the 2017 case Ziglar v. Abbasi, Justice Clarence Thomas wrote a concurring opinion that cited Baude’s work and echoed his concerns. “Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in ‘interpret[ing] the intent of Congress in enacting’ the Act,” he wrote, paraphrasing other cases. “Our qualified immunity precedents instead represent precisely the sort of ‘freewheeling policy choice[s]’ that we have previously disclaimed the power to make.” He suggested that the court should revisit the issue “in an appropriate case.”
The problems with qualified immunity mirror a deeper and more disturbing trend in the law. Courts, which are supposed to be the great vindicators of Americans’ rights and liberties, are increasingly closed off to them. For instance, the U.S. legal system grants prisoners the right—known as habeas corpus—to challenge the constitutionality of their imprisonment, including the trial and sentencing phrases that placed them there. But in 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act, which imposed new limits on habeas petitions and sharply raised the legal thresholds for them to succeed. The changes led to a sharp and deleterious drop in successful legal challenges by defendants in federal courts.
Defendants who go on trial are already rare. Contrary to portrayals of the criminal-justice system in Law Order and other legal procedurals, the overwhelming majority of people charged with a crime never make their case before a jury. More than 90 percent of felony convictions are now obtained through plea bargains instead. The coercive power of harsh sentencing laws—and the promise of a lighter punishment to avoid them—gives prosecutors so much power that some critics fear many innocent people are pleading guilty rather than risk a trial, especially if they lack the resources to defend themselves. Federal judge Jed Rakoff noted in 2015 that roughly 20,000 federal prisoners may be actually innocent if the limited available data on exonerations is extrapolated nationwide.
Would-be litigants also face tougher hurdles in civil cases. Two recent decisions that largely escaped public notice—2007’s Bell Atlantic v. Twombly and 2009’s Ashcroft v. Iqbal—lowered the legal threshold for judges to summarily dismiss civil lawsuits when the initial complaint isn’t detailed enough. The change had a palpable effect on civil litigation throughout the country, especially in cases that typically rely on the discovery process to find sufficient evidence. (Massachusetts Senator Elizabeth Warren recently introduced legislation that would restore the old pleading standard through federal law.)
In the private sector, companies increasingly use contractual clauses that require would-be litigants to submit to arbitration instead, an alternative to the judicial process that was meant to alleviate strain on the courts. The practical reality is an parallel legal system of sorts that often deprives workers of their ability to challenge discrimination, harassment, and wage theft. Earlier this year, for example, the Supreme Court signed off on clauses in employment contracts that thwart class-action lawsuits by forcing employees into closed-door arbitration instead. “The inevitable result of today’s decision will be the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers,” Justice Ruth Bader Ginsburg warned in her dissent.
The broad, cross-ideological push against qualified immunity is a rare step in the right direction, but any reform of the doctrine relies on the Supreme Court. The justices have multiple options if they take up a case where they can reconsider qualified immunity itself. The first, of course, would be to leave it intact. Baude noted in his 2017 article that the court is usually reluctant to overturn its own precedents when they interpret federal statutes instead of the Constitution. “Because qualified immunity has been on the books for
years and Congress has declined to revisit it, it may have obtained a belated congressional imprimatur,” he wrote.
The doctrine’s questionable justifications could help the court overcome that reluctance, however. That would allow the justices to either eliminate qualified immunity altogether, substantially narrow its scope, or justify it on other grounds. “Plaintiffs should be able
to defeat a qualified immunity motion by pointing to evidence of an officer’s
bad faith,” Schwartz wrote earlier this year. “And the Court should broaden its definition of clearly established
law—by making clear that courts of appeals can clearly establish the
law, by defining clearly established law at a higher level of factual generality,
and by recognizing obvious constitutional violations […] without
reference to an analogous case.”
Those suggestions may provide the court with a good starting point. “Doctrinal reform is arduous, often-Sisyphean work,” Willett observed in last month’s concurrence. “And the
entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated,
making even tweak-level tinkering doubtful. But immunity ought not be
immune from thoughtful reappraisal.”