1Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
2The Federalist, no. 48 (James Madison).
3 This paper refers to all historical versions of the statute anachronistically as “Section 1983,” as the operative text has been, in relevant part, essentially identical through every iteration.
4 An Act to Enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for Other Purposes, ch. 22, § 1, 17 Stat. 13 (1871).
5 42 U.S.C. § 1983.
6Forrester v. White, 484 U.S. 219, 225–26 (1988).
7Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (quoting Pierson v. Ray, 386 U.S. 547, 554–55 (1967)).
8 Akhil Reed Amar, “Of Sovereignty and Federalism,” Yale Law Journal 96, no. 7 (1987): 1506. Of course, prior to the passage of the Fourteenth Amendment, such “constitutional torts” were almost exclusively limited to federal officials, as the substantive protections of the Bill of Rights were not yet applicable against the states. Barron v. Baltimore, 32 U.S. 243, 250–51 (1833).
9 James E. Pfander, Constitutional Torts and the War on Terror (New York: Oxford University Press, 2017), pp. 3–14, 16–17; David E. Engdahl, “Immunity and Accountability for Positive Governmental Wrongs,” University of Colorado Law Review 44 (1972): 14–21; and Ann Woolhandler, “Patterns of Official Immunity and Accountability,” Case Western Reserve Law Review 37, no. 3 (1986): 414–22.
10 For a more complete analysis of this particular subject in the context of qualified immunity, see William Baude, “Is Qualified Immunity Unlawful?,” California Law Review 106 (2018): 51–61.
11Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804).
12Little v. Barreme, 6 U.S. (2 Cranch) at 179.
13Little v. Barreme, 6 U.S. (2 Cranch) at 179.
14Little v. Barreme, 6 U.S. (2 Cranch) at 179.
15 Engdahl, “Immunity and Accountability for Positive Governmental Wrongs,” p. 19.
16 James E. Pfander and Jonathan L. Hunt, “Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic,” New York University Law Review 85 (2010): 1867 (noting that, in the early republic and antebellum period, public officials succeeded in securing private legislation providing indemnification from Congress in about 60 percent of cases).
17 See Miller v. Horton, 26 N.E. 100, 100–01 (Mass. 1891) (Holmes, J.).
18 Max P. Rapacz, “Protection of Officers Who Act Under Unconstitutional Statutes,” Minnesota Law Review 11 (1927): 585. See also Engdahl, “Immunity and Accountability for Positive Governmental Wrongs,” p. 18 (a public official “was required to judge at his peril whether his contemplated act was actually authorized … [and] judge at his peril whether … the state’s authorization‐in‐fact … was constitutional”).
19 Baude, “Is Qualified Immunity Unlawful?,” pp. 58–60.
20 Thomas M. Cooley, A Treatise on the Law of Torts or the Wrong Which Arise Independently of Contract, ed. John Lewis, 3rd ed. (Chicago: Callaghan and Company, 1906), p. 326 (quoting Ball v. Rawles, 28 P. 937 (Cal. 1892)).
21 238 U.S. 368 (1915).
22 238 U.S. at 371.
23 238 U.S. at 378–79.
24Anderson v. Myers, 182 F. 223, 230 (C.C.D. Md. 1910).
25 Baude, “Is Qualified Immunity Unlawful?,” p. 58 (citation omitted).
26 386 U.S. 547 (1967).
27 386 U.S. at 556–57.
28Scheuer v. Rhodes, 416 U.S. 232, 247–48 (1974).
29 457 U.S. 800 (1982).
30Wood v. Strickland, 420 U.S. 308, 321 (1975).
31Harlow, 457 U.S. at 818.
32 Although Harlow specifically involved a suit against federal officers, under the doctrine articulated in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), the Court nevertheless indicated that the same standard of immunity would apply to state officers under Section 1983. See Harlow, 457 U.S. at 818 n.30.
33 See Filarsky v. Delia, 566 U.S. 377, 383 (2012) (defending qualified immunity on the ground that “[a]t common law, government actors were afforded certain protections from liability”).
34Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting).
35Ziglar v. Abbasi, 137 S. Ct. 1843, 1871 (2017) (Thomas, J., concurring in part and concurring in the judgment).
36Crawford‐El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J., dissenting).
37Wyatt v. Cole, 504 U.S. 158, 170 (1992) (Kennedy, J., concurring).
38Malley v. Briggs, 475 U.S. 335, 342 (1986).
39White v. Pauly, 137 S. Ct. 548, 552 (2017).
40Ashcroft v. al‐Kidd, 563 U.S. 731, 741 (2011).
41 751 F. App’x 869 (6th Cir. 2018).
42Campbell v. City of Springsboro, 700 F.3d 779, 789 (6th Cir. 2012).
43Baxter, 751 F. App’x at 872 (emphasis added).
44878 F.3d 541 (6th Cir. 2017).
45 878 F.3d at 552.
46 878 F.3d at 552–53 (quoting Hermiz v. City of Southfield, 484 F. App’x 13, 17 (6th Cir. 2012)).
47 878 F.3d at 553.
48 878 F.3d at 558 (Clay, J., concurring in part and dissenting in part).
49 533 U.S. 194 (2001).
50 555 U.S. 223 (2009).
51 See Sims v. City of Madisonville, 894 F.3d 632, 638 (5th Cir. 2018) (per curiam) (“This is the fourth time in three years that an appeal has presented the question whether someone who is not a final decisionmaker can be liable for First Amendment retaliation.… Continuing to resolve the question at the clearly established step means the law will never get established.”).
52Kelly v. Borough of Carlisle, 622 F.3d 248, 263 (3d Cir. 2010); and Szymecki v. Houck, 353 F. App’x 852, 853 (4th Cir. 2009).
53Karns v. Shanahan, 879 F.3d 504, 524 (3d Cir. 2018).
54 Aaron L. Nielsen and Christopher J. Walker, “The New Qualified Immunity,” Southern California Law Review 89 (2015): 34–35.
55 28 U.S.C. § 1291 (“The courts of appeals … shall have jurisdiction of appeals from all final decisions of the district courts of the United States.”).
56 Joanna C. Schwartz, “How Qualified Immunity Fails,” Yale Law Journal 127, no. 1 (2017): 48–49.
57Plumhoff v. Rickard, 134 S. Ct. 2012, 2018–19 (2014); and Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
58Wheatt v. City of E. Cleveland, No. 1:17-CV-377, 2017 U.S. Dist. LEXIS 200758, *8–9 (N.D. Ohio Dec. 6, 2017).
59 For discussions by judges, see Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring dubitante) (“[T]he ‘clearly established’ standard [is] neither clear nor established among our Nation’s lower courts.”); and Golodner v. Berliner, 770 F.3d 196, 205 (2d Cir. 2014) (“Few issues related to qualified immunity have caused more ink to be spilled than whether a particular right has been clearly established.”). For discussions by commentators, see Alan K. Chen, “The Intractability of Qualified Immunity,” Notre Dame Law Review 93, no. 5 (2018): 1951 (qualified immunity “has been a nightmare for litigators and judges who confront its implementation on a routine basis”); Erwin Chemerinsky, Federal Jurisdiction, 7th ed. (New York: Wolters Kluwer, 2016), p. 595 (“[T]here is great confusion in the lower courts as to whether and when cases on point are needed to overcome qualified immunity.”); and Schwartz, “How Qualified Immunity Fails,” p. 75 (“[T]he restrictive manner in which [the court] defines ‘clearly established law’ … creates confusion in the lower courts.”).
60Ashcroft v. al‐Kidd, 563 U.S. 731, 742 (2011).
61White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
62Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting White, 137 S. Ct. at 551).
63White, 137 S. Ct. at 552 (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)).
64Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting al‐Kidd, 563 U.S. at 742).
65 From the last few years alone: compare, for example, Demaree v. Pederson, 887 F.3d 870, 884 (9th Cir. 2018) (denying immunity because of “a very specific line of cases … which identified and applied law clearly establishing that children may not be removed from their homes without a court order or warrant absent cogent, fact‐focused reasonable cause to believe the children would be imminently subject to physical injury or physical sexual abuse”); with 887 F.3d at 891 (Zouhary, J., concurring and dissenting in part) (arguing that no case addressed “circumstances like these, where the type of abuse alleged is sexual exploitation, and it would take a social worker at least several days to obtain a removal order”); Sims v. Labowitz, 885 F.3d 254, 264 (4th Cir. 2017) (denying immunity because “well‐established Fourth Amendment limitations … would have placed any reasonable officer on notice that [ordering a teenage boy to masturbate in front of other officers] was unlawful”); with 885 F.3d at 269 (King, J., dissenting) (“[N]o reasonable police officer or lawyer would have considered this search warrant … to violate a clearly established constitutional right.”); Young v. Borders, 850 F.3d 1274, 1281 (11th Cir. 2017) (Hull, J., concurring in the denial of rehearing en banc) (“The dissents define clearly established federal law at too high a level of generality.…”); with 850 F.3d at 1292 (Martin, J., dissenting in the denial of rehearing en banc) (“In circumstances closely resembling this case, this Court held that an officer’s use of deadly force was excessive even though the victim had a gun.”). See also Harte v. Bd. of Comm’rs, 864 F.3d 1154, 1158, 1168, 1198 (10th Cir. 2017) (splintering the panel into three conflicting opinions on whether the various acts of misconduct violated clearly established law).
66 Alexander A. Reinert, “Does Qualified Immunity Matter?,” University of St. Thomas Law Journal 8, no. 3 (2011): 492.
67 936 F.3d 937 (9th Cir. 2019). On May 18, 2020, the Supreme Court decided not to review this case.
68 929 F.3d 1304 (11th Cir. 2019). On June 15, 2020, the Supreme Court decided not to review this case.
69 933 F.3d 975 (8th Cir. 2019) (en banc). On May 18, 2020, the Supreme Court decided not to review this case.
70 876 F.3d 48 (2d Cir. 2017).
71 Gene Demby, “Some Key Facts We’ve Learned about Police Shootings over the Past Year,” NPR, April 13, 2015.
72 Julie Tate et al., “Fatal Force,” Washington Post database (last updated June 19, 2020).
73 Nathan DiCamillo, “About 51,000 People Injured Annually by Police, Study Shows,” Newsweek, April 19, 2017.
74 Wesley Lowery, “On Policing, the National Mood Turns toward Reform,” Washington Post, December 13, 2015.
75 Jeffery M. Jones, “In U.S., Confidence in Police Lowest in 22 Years,” Gallup, June 19, 2015.
76 Rich Morin, Kim Parker, Renee Stepler, and Andrew Mercer, Behind the Badge (Washington: Pew Research Center, 2017), p. 40.
77See Jack McDevitt, Russell Wolff, and Amy Farrell, Promoting Cooperative Strategies to Reduce Racial Profiling (Washington: Institute on Race and Justice, Northeastern University, 2008), pp. 20–21.
78 Fred O. Smith, Jr., “Abstention in a Time of Ferguson,” Harvard Law Review 131, no. 6 (2018): 2356.
79 Morin et al., “Behind the Badge,” pp. 65, 80.
80Zadeh v. Robinson, 928 F.3d 457, 479, 480–81 (5th Cir. 2019).
81Manzanares v. Roosevelt County Adult Detention Ctr., 331 F. Supp.3d 1260, 1294 n.10 (D.N.M. 2018).
82 Lynn Adelman, “The Supreme Court’s Quiet Assault on Civil Rights,” Dissent, Fall 2017.
83 See Jay Schweikert, “Qualified Immunity: The Supreme Court’s Unlawful Assault on Civil Rights and Police Accountability,” Cato Institute Policy Forum, March 1, 2018.
84 See also Horvath v. City of Leander, 946 F.3d 787, 801 (5th Cir. 2020) (Ho, J., concurring in the judgment in part and dissenting in part) (“[T]here is no textualist or originalist basis to support a ‘clearly established’ requirement in § 1983 cases.”); Ventura v. Rutledge, No. 1:17-cv-00237-DAD-SKO, 2019 U.S. Dist. LEXIS 119236, *26 n.6 (E.D. Cal. Jul. 17, 2019) (“[T]his judge joins with those who have endorsed a complete reexamination of [qualified immunity] which, as it is currently applied, mandates illogical, unjust, and puzzling results in many cases.”); Estate of Smart v. City of Wichita, No. 14–2111-JPO, 2018 U.S. Dist. LEXIS 132455, *46 n.174 (D. Kan. Aug. 7, 2018) (“[T]he court is troubled by the continued march toward fully insulating police officers from trial—and thereby denying any relief to victims of excessive force—in contradiction to the plain language of the Fourth Amendment.”); Thompson v. Clark, No. 14-CV-7349, 2018 U.S. Dist. LEXIS 105225, *26 (E.D.N.Y. June 11, 2018) (“The legal precedent for qualified immunity, or its lack, is the subject of intense scrutiny.”); Jon O. Newman, “Here’s a Better Way to Punish the Police: Sue Them for Money,” Washington Post, June 23, 2016 (article by senior judge on the Second Circuit); and Stephen Reinhardt, “The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences,” Michigan Law Review 113, no. 7 (2015): 1219 (article by former judge of the Ninth Circuit).
85 See Jay Schweikert, “The Supreme Court’s Dereliction of Duty on Qualified Immunity,” Unlawful Shield, June 15, 2020.
86 See Tenney v. Brandhove, 341 U.S. 367, 372–76 (1951) (legislators); and Pierson v. Ray, 386 U.S. 547, 553–55 (1967) (judges).
87Imbler v. Pachtman, 424 U. S. 409, 430 (1976).
88Burns v. Reed, 500 U.S. 478, 493 (1991).
89 See Kalina v. Fletcher, 522 U.S. 118, 131–34 (1997) (Scalia, J., joined by Thomas, J., concurring) (arguing that the Court in Imbler misunderstood 1871 common‐law rules).
90 See United States v. Olsen, 737 F.3d 625, 631–32 (2013) (Kozinski, C. J., dissenting from order denying petition for rehearing en banc) (collecting federal and state cases in which courts have vacated convictions and ordered new trials due to the suppression of exculpatory material).
91 403 U.S. 388 (1971).
92 See Harlow v. Fitzgerald, 457 U.S. 800, 809 (1982).
93 See Oklahoma City v. Tuttle, 471 U.S. 808, 834–42 (1985) (Stevens, J., dissenting) (explaining how Section 1983 is best read as incorporating the well‐established common law doctrine of respondeat superior).
94 See Adelman, “The Supreme Court’s Quiet Assault on Civil Rights” (“Many of the problems [with qualified immunity] would go away if the law were changed so that the respondeat superior doctrine applied to constitutional torts.”).
95Thomas v. Mississippi, 380 U.S. 524 (1965).
96 556 U.S. 332 (2009).
97 453 U.S. 454 (1981).
98 Pfander and Hunt, “Public Wrongs and Private Bills,” p. 1867.
99 Joanna C. Schwartz, “Police Indemnification,” New York University Law Review 89, no. 3 (June 2014): 885.
100 See Clark Neily, “Make Cops Carry Liability Insurance: The Private Sector Knows How to Spread Risks, and Costs,” New York Daily News, March 29, 2018.
101Elonis v. United States, 135 S. Ct. 2001, 2009 (2015).
102Graham v. Connor, 490 U.S. 386, 397 (1989).
103 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
104 28 U.S.C. § 1915(g).
105 Aaron L. Nielsen and Christopher J. Walker, “A Qualified Defense of Qualified Immunity,” Notre Dame Law Review 93 (2018): 1856.
106Johnson v. United States, 135 S. Ct. 2551, 2562 (2015) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)).
107Pearson v. Callahan, 555 U.S. 223, 233–34 (2009).
108 365 U.S. 167 (1961).
109 523 U.S. 574, 611 (1991) (Scalia, J., dissenting).
110 Nielsen and Walker, “A Qualified Defense of Qualified Immunity,” pp. 1868–72.
111 See Cole v. Carson, 935 F.3d 444, 477–79 (5th Cir. 2019) (en banc) (Ho & Oldham, J., dissenting).
112 Steven L. Winter, “The Meaning of ‘Under Color of’ Law,” Michigan Law Review 91, no. 3 (1992): 342–46.
113 Nielsen and Walker, to their credit, explicitly discuss this rejoinder and thus acknowledge that “there is historical support for Monroe’s reading of ‘under color of,’” although they discuss reasons why “this defense may not be bulletproof.” Nielsen and Walker, “A Qualified Defense of Qualified Immunity,” pp. 1868–69.
114Horvath v. City of Leander, 946 F.3d 787, 801, 803 (5th Cir. 2020) (Ho, J., concurring in the judgment in part and dissenting in part).
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