Qualified Immunity's Flawed Foundation

47 Pages Posted: 6 Aug 2022 Last revised: 2 Apr 2023

See all articles by Alex Reinert

Alex Reinert

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: August 2, 2022


Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine – fundamental errors that have never before been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction – namely that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common-law immunity defenses. As this Article shows, the Derogation Canon has no appropriate role to play in interpreting Section 1983. Its viability has been continuously called into question for more than a century. Even when it has been applied, the canon has been used as a reason to disfavor displacement of common-law claims, not common-law defenses. And it is always operating in tension with a contrary canon that remedial statutes, like Section 1983, should be given a broad reading.

This Article also identifies a second significant failing in the Court’s qualified immunity law. For even if the Derogation Canon were valid, the Reconstruction Congress that passed Section 1983 meant to explicitly displace common-law immunities. Most critically, scholars and courts have overlooked the originally-enacted version of Section 1983, which contained a provision that specifically disapproved of any state law limitations on the new cause of action. For unknown reasons, that provision was not included by the Reviser of the Federal Statutes in the first compilation of federal law in 1874. This Article is the first to unearth the lost text of Section 1983 and demonstrate its implications.

Taken together, these twin insights show that the problems with the Court’s immunity doctrine run deeper than prior scholarly criticism has imagined. Much of current qualified immunity scholarship has addressed, in compelling fashion, how the Court has taken immunity doctrine too far from its common-law origins. But this Article shows that qualified immunity is flawed from the ground up. In other words, the problem with current qualified immunity doctrine is not just that it departs from the common law immunity that existed in 1871. The problem is that the Court has failed to grapple with the strong arguments that no immunity doctrine at all should apply in Section 1983 actions.

Keywords: qualified immunity, derogation, common-law, civil rights, Section 1983

Suggested Citation

Reinert, Alexander A., Qualified Immunity's Flawed Foundation (August 2, 2022). 111 Cal. L. Rev. 201 (2023), Cardozo Legal Studies Research Paper No. 686, Available at SSRN: https://ssrn.com/abstract=4179628 or http://dx.doi.org/10.2139/ssrn.4179628

Alexander A. Reinert (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

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