Civil Rights

Is qualified immunity based on scrivener's error? Law review article makes case

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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.

Willett nonetheless ruled that qualified immunity protected inmate 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.

The New York Times, via How Appealing, notes the law review article and Willett’s concurrence.

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.”

Willett said Reinert’s article contains “game-changing arguments, particularly in this text-centric judicial era when jurists profess unswerving fidelity to the words Congress chose.”

“In arguing that qualified immunity is flawed from the ground up,” Willett wrote, “Professor Reinert poses a provocative question: ‘If a legislature enacts a statute, but no one bothers to read it, does it still have interpretive force?’”

“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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