Piercing the Procedural Veil of Qualified Immunity: From the Guardians of Civil Rights to the Guardians of States’ Rights

Abstract

Scholars have found that despite a split on the burden of proof for qualified immunity, courts agreed that defendants must bear the burden of pleading to raise qualified immunity as a defense. This article is the first to find that over the past decade, this established consensus has been disrupted, culminating in a fresh circuit split.

This article investigates twelve Federal Courts of Appeals’ qualified immunity rulings on 42 U.S.C. § 1983 and finds that six have required plaintiffs to anticipate defendants’ qualified immunity arguments at the pleading stage, essentially treating the negating of qualified immunity as an element of § 1983. This article criticizes this approach, as it distorts the rule-of-law value of the Federal Civil Procedure, and it cannot consolidate with the statutory text and the 42nd Congress’s original intent in enacting the Civil Rights Act of 1871.

This new circuit split should not be understood as merely a procedural split regarding the pleading burden. Courts often take advantage of procedural law’s elusive nature and use it as a veil to shield judicial activism. This circuit split is another example. Behind the veil of the pleading allocation is a clear policy agenda: anti-civil rights and unconditionally pro-law enforcement.

Yet, one subtle, albeit salient, theoretical strand remains underexplored: the undertones of states’ rights embedded within the contemporary qualified immunity jurisprudence. Both the Rehnquist and Roberts Courts exhibited a predilection for interpreting the objective knowledge test in a manner favorable to law enforcement, leading to a predicament the Reconstruction Congress once grappled with: the enforceability of a federal right today often hinges upon a state actor’s acknowledgment of that right. Such an outcome, far from being serendipitous, resonates with the Court’s overt pro-states’ rights disposition on many civil rights matters. Thus, the contemporary qualified immunity jurisprudence reflects a departure from the vision of the Reconstruction Congress, which envisioned federal courts as guardians of civil rights. The prevailing sentiment at the Court suggests a reimagining of a new role for federal courts: guardians of states’ rights.

Keywords: Qualified Immunity, Civil Rights, Burden of Proof, Civil Procedure, § 1983, Movement Lawyering, the Civil Rights Act of 1871, Constitution Enforcement, Statutory Interpretation, Textualism, Congressional Intent, Abolitionist, Critical Legal Studies