A request that the Supreme Court consider ending qualified immunity — the doctrine that protects officials from lawsuits and that is being challenged before the Nine — could upend relations between the public and public servants.
\n\n\n\nThe question takes on added salience in light of Special Counsel Jack Smith’s and District Attorney Fani Willis’s decisions to charge President Trump with conspiracy in respect of efforts to overturn the 2020 election. Mr. Trump, along with his former chief of staff, Mark Meadows, could mount a defense based on qualified immunity.
\n\n\n\nWhether qualified immunity survives long enough to help Mr. Trump, though, could turn on the legal version of “The Da Vinci Code,” a manuscript mystery that testifies to the enduring role of human error in the life of legal doctrines. For the Nine, it will be an opportunity to weigh proof of original intent against street-corner realities.
\n\n\n\nSection 1983, which was passed as the first section of the Civil Rights Act of 1871 and signed into law by President Grant, is a federal law that allows victims of constitutional violations by officials to claim monetary damages. To overcome qualified immunity, though, plaintiffs are required to show that an official violated “clearly established” law.
\n\n\n\nSection 1983 dictates that any “person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States” is “liable to the party injured.”
\n\n\n\nNow comes a bombshell.
\n\n\n\nAsserting “fundamental errors that have never been excavated,” a professor at Yeshiva University, Alexander Reinert, argues in a law review article that this version is incomplete. As originally drafted, it “meant to explicitly displace common law immunities.” In other words, officials have no special protections.
\n\n\n\nThis is not the position that courts have taken. Jurists have rather seen Section 1983 as incorporating, rather than displacing, immunities for government officials that were in place in 1871. Absent the explicit overriding of the notwithstanding clause, courts have accorded officials their ancient prerogatives.
\n\n\n\nWhat he calls the “lost text of Section 1983” was not included in the first compilation of federal law, in 1874. Burrowing into the archives, though, Mr. Reinert finds that as originally passed, the law overrode “any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding.”
\n\n\n\nFor Mr. Reinert, these vanished words underscore that “there is no foundation to the interpretive premise upon which qualified immunity rests.” He points to the intent of the Reconstruction Congress to ensure “liability for constitutional violations and displace any existing common law immunities.”
\n\n\n\nWith those 16 words absent, though, qualified immunity has grown in strength, serving as grounds for dismissal of cases that allege misconduct against police officers and others. The Legal Defense Fund writes that “law enforcement officers have stolen money and valuables, shot children, attempted to harm family pets, killed vulnerable people, and, worst of all, they have gotten away with it — all because of qualified immunity.”
\n\n\n\nIt now protects officials regardless of whether they act in good faith, so far as their conduct was reasonable. This expansion has attracted critics as diverse as Justices Sonia Sotomayor and Clarence Thomas, who noted his “growing concern with our qualified immunity jurisprudence.”
\n\n\n\n“For reasons unknown,” Mr. Reinert explains, the notwithstanding clause was omitted when the “Reviser of the Federal Statutes, who lacked any authority to alter positive law,” did his work three years later. That error was in turn fossilized into the United States Code.
\n\n\n\nIt is a principle of American jurisprudence, though, that codification cannot rewrite or substantively alter the law, meaning that a clerical error should not bind. The clause overriding immunity, though, has now taken the shape of something like a phantom limb, while qualified immunity is ensconced in American law.
\n\n\n\nMr. Reinert’s discovery could not have come at a better time for one Kevion Rogers, whose suit for redress, which originated at the southern district of Texas, hangs on whether the justices will dispense with qualified immunity based on the law’s original language.
\n\n\n\nRogers, who is represented by a former acting solicitor general, Neal Katyal, claims that he suffered a traumatic brain injury when the ceiling of a prison facility fell on his head and he was subsequently denied medical assistance. At the time, his responsibilities included minding the prison’s hogs.
\n\n\n\nAfter the ceiling fell on Rogers’s head — he exclaimed, “A whole ceiling just fell on me” — a supervisor later told him that he “looked fine” despite his wandering “in and out of consciousness.” He subsequently “was wheezing, had mucus draining,” and began to “seize violently.” Three and a half hours after the roof fell, he was airlifted to a hospital and diagnosed with a severe brain injury.
\n\n\n\nRogers argued that the prison violated his rights under the Eighth Amendment— the one barring “cruel and unusual punishment” — and the Fourteenth Amendment “by acting with deliberate indifference to his safety and medical needs.” The district court dismissed his suit on the basis of qualified immunity, and the Fifth Circuit affirmed, noting that the “Supreme Court has articulated an exacting standard” for overcoming that species of immunity.
\n\n\n\nYet one rider of the Fifth Circuit, Judge Donny Willett, in concurrence, teed up a Supreme Court showdown by noting the “game-changing arguments” advanced by Mr. Reinert. He reckons that qualified immunity is “flawed — foundationally — from its inception.”
\n\n\n\nCiting the professor’s research, the circuit rider finds that the “Supreme Court’s original jurisdiction” for qualified immunity was in error and that Congress did not mean “to abrogate these immunities rather than incorporate them.”
\n\n\n\nFor the jurist, though, “however seismic” this finding, succor for Rogers — and the death knell of qualified immunity — could not come from “middle-management circuit judges.” Only the high court could “definitely grapple” with the law’s “enacted text and decide whether it means what it says.”
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