Qualified immunity’s flawed foundation

Abstract

This Article raises a legal version of a popular philosophical question about a tree falling in a forest. 292Link to the text of the note. If a legislature enacts a statute, but no one bothers to read it, does it still have interpretive force? Section 1983's immunity jurisprudence can only survive if the answer to this question is "no." But for the reasons outlined in this Article, Section 1983 should be read and applied in light of its original, enacted text. The Reconstruction Congress intended to create liability notwithstanding contrary state law, meaning that state law immunities have no place in Section 1983. And the Derogation Canon, to the extent it applies at all to the Civil Rights Act of 1871, cannot be the basis for applying some other "common law" defense of qualified immunity.

If the Supreme Court continues to apply its qualified immunity doctrine to Section 1983 claims, its mistakes go beyond the well-grounded criticisms others have raised. For as this Article shows, the Court's immunity jurisprudence has not just used "free-wheeling" judge-made law to fill a gap left by the legislature. 293Link to the text of the noteInstead, it has deployed a canon of statutory interpretation, founded in a mistrust of legislatures in favor of supposedly greater judicial wisdom, to apply Section 1983 in a way that contradicts text adopted by the Reconstruction Congress. Compounding one grave error with another, the Supreme Court has created an immunity jurisprudence that departs from text, purpose, and context. (from Conclusion)