Immunity and Accountability in Civil Rights Litigation - Who Should Pay?

75 Pages Posted: 30 Mar 2007

See all articles by Laura E. Oren

Laura E. Oren

University of Houston Law Center


This article has been cited often and over many years. Section 1983 is a Reconstruction-era statute that is the primary vehicle for the vindication of constitutional rights today. Although the text is silent, the Court has read significant defenses into the statute that are enjoyed by individual officers found to be at constitutional fault. In 1982, in Harlow v. Fitzgerald, the Court radically transformed the qualified immunity defense from a two-pronged inquiry that was modeled on similar defenses in the common-law to a much more potent barrier to recovery. The Court transformed the doctrine without initially acknowledging how much of a departure this represented from its avowed methodology of viewing the statute against a background of common law tort liability.

Harlow's transformation of civil rights immunity doctrine could have been justified if it reflected a development similar to the common law trend to substitute governmental for official responsibility (in the nature of a type of enterprise liability). By contrast, however, the case was based on a desire to constrict liability for officials, while at the same time not expanding entity liability. The goal of the new standard of qualified immunity was to end as much litigation as possible at the earliest stage practicable.

The article comprehensively examines the early development of official immunity jurisprudence against the background of the common law. It also considers "municipal liability" (government responsibility) doctrine, before analyzing the changes wrought by Harlow. Finally, the article demonstrates that since Harlow the Court has failed to reconcile qualified immunity (individual officer liability) and municipal liability (governmental entity liability) in a way that makes constitutional sense. It ends by proposing alternatives to achieve a better integration of doctrine, through judicial or legislative lawmaking. These proposals are advanced as a sounder basis for allocating the costs of constitutional injuries between the innocent victim, the wrongdoing official, and the government enterprise.

Keywords: Qualified Immunity, Section 1983, Harlow v. Fitzgerald, Municipal Liability, Civil Rights

Suggested Citation

Oren, Laura E., Immunity and Accountability in Civil Rights Litigation - Who Should Pay?. University of Pittsburgh Law Review, Vol. 50, 935, 1989 , Available at SSRN:

Laura E. Oren (Contact Author)

University of Houston Law Center ( email )

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Houston, TX 77204-6060
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