The 1967 decision and the good faith exception
Pierson v. Ray is a 1967 Supreme Court case that Clark Neily describes as the first step in the judiciary’s amendment of Section 1983. In the case, government officials—police and, in Neily’s account, a couple of judges—were involved in enforcing a racial segregation law that was later struck down. When they were sued, their argument was that at the time they enforced the law it was on the books and valid, and they had no reason to know it would later be struck down. The Supreme Court agreed, holding in essence that the officials were acting in good faith and that, as offensive as segregation might look later, at the time it was the law of the land. Neily says the Court invented what it called a good faith exception Judicial Round-Up with Clark Neily (2022).
Neily characterizes the exception as narrow and probably illegitimate, but not doing much work because it addressed a unique set of circumstances. He notes that Congress could have written the exception into the text of the statute but did not, and that most conservatives consider that relevant: if the language is not there, it is not for the court to make it up just because it seems more fair Judicial Round-Up with Clark Neily (2022).
In the earlier 2020 episode, Neily gives a slightly different emphasis. He says the Court held that if a police officer enforces a law that is then thought to be constitutional, and that law is later struck down, the officer should not be liable for enforcing what he and everyone else thought was a constitutional law simply because it was later struck down. Neily calls this a first step that was not hugely objectionable except for the fact that it was beginning to rewrite the statute, and he describes it as the first tiny snowball that gathered momentum down the hill of non-accountability and turned into an avalanche that caught up with Section 1983 and gutted the statute An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
Bob Zadek, in that same episode, frames the decision as one that one could not really question. He says the Supreme Court was simply doing its job of helping understand a statute and how it applies to changed circumstances, and that it makes sense not to impose on a police officer or other state actor the duty to predict subsequent unconstitutionality, which he calls impossible and unfair. He then asks what happened next, since the first step seems benign and unobjectionable An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
Section 1983 and the Enforcement Act of 1871
The statute at issue is the Enforcement Act of 1871, which Neily says is called Section 1983 today because that is where it appears in the US Code. He describes its operative language as quite simple and unchanged for 150 years: any state actor—anybody employed by a state or local government—shall be liable to the person injured for the deprivation of any right. Neily calls the language broad and says it was meant to be so Judicial Round-Up with Clark Neily (2022).
Bob Zadek describes the statute as about 150 years old, a post-Civil War statute enacted because of abuses during Reconstruction at the state level, designed to prevent state and local officials from abusing the rights of Americans. He says Congress did its job and the statute was appropriately drafted for a good purpose, then asks how the courts got involved and how they took a statute designed to fix the abuse and, acting alone without legislation, reversed its positive effects Judicial Round-Up with Clark Neily (2022).
Neily says that up until 1967, courts just applied the statute as written, and if you violated somebody’s rights you were going to be liable to them. He identifies Pierson v. Ray as the 1967 case that changed this, and says the Court’s decision represented the nose of the judicial camel under the proverbial tent Judicial Round-Up with Clark Neily (2022).
From Pierson to Harlow v. Fitzgerald
Neily argues that the significance of Pierson v. Ray lies less in its own holding than in what followed. He says that 15 years later the Supreme Court made the really big move in Harlow v. Fitzgerald (1982), taking the narrow good faith concept from Pierson and expanding it unbelievably. In Neily’s account, the Court in Harlow effectively rewrote the text of Section 1983 so that instead of being able to sue for the deprivation of any right, as Congress said, plaintiffs could only sue for the deprivation of a clearly established right. That language, he says, does not appear in the congressionally written statute Judicial Round-Up with Clark Neily (2022).
Neily describes the “clearly established” requirement as part of a judicially concocted civil rights law. To satisfy it, he says, it is not enough to show that your rights were violated; you must show that the particular way in which they were violated has already been the subject of a prior court case in the relevant jurisdiction. He gives the example of a court saying you cannot punch a guy on the left side of the face on a Tuesday when he is wearing handcuffs behind his back, and says that if any one of those facts is different in the next case, then it is not clearly established and courts hand out free passes. He calls this a disaster Judicial Round-Up with Clark Neily (2022).
In the 2020 episode, Neily makes the same point about the trajectory from Pierson to the present, saying the first tiny snowball gathered momentum and turned into an avalanche that ultimately caught up with Section 1983 and rendered it largely ineffective An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
Qualified immunity as a judicially invented defense
In the 2022-07-08 episode, Neily defines qualified immunity as a defense invented by the judiciary that enables a government official to say that even though he might be at fault and might well have injured the plaintiff, the particular way in which he injured the plaintiff has not arisen in that jurisdiction yet, so there is no court ruling saying the specific thing he did was improper. Because he was not on notice, he gets a free pass and the suit is dismissed even though it may be meritorious. Neily calls this a “get out of responsibility” free card for rights-violating government officials Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
He offers an analogy: imagine that in his state, because he is left-handed, he lobbies for a law giving left-handed people immunity from tort cases arising out of their use of a motor vehicle. He could then drive down the street, run into people, and not have to compensate them—not because it was not his fault, but simply because he is left-handed. Neily says this is a fair analogy to what happens when a police officer or other government official harms somebody through misconduct and gets sued Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
Neily also states the baseline principle that if you injure another person through your own misconduct—say you are driving down the street messing around with your phone and run into their car—you have both a moral and a legal obligation to compensate them for the harm you have done. Immunity, he says, is a concept that is essentially a kind of free pass Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
Across episodes: the same argument in three episodes
The same question—how the judiciary amended Section 1983 and what Pierson v. Ray had to do with it—is argued in all three episodes, with Clark Neily advancing the account each time. The 2020-06-10 episode treats Pierson as the first small step in a process that became an avalanche, and Bob Zadek supplies the framing that the first decision seems benign and unobjectionable. The 2022-07-04 episode gives the fullest account of the statutory language and the trajectory from Pierson to Harlow v. Fitzgerald, including the “clearly established” standard. The 2022-07-08 episode repeats the Pierson and Harlow narrative and adds Neily’s definition of qualified immunity and his left-handed-driver analogy. The excerpts show no development or change in the argument across the three episodes; Neily’s position is consistent throughout.
What the sources do not cover
The excerpts do not state the jurisdiction or court in which Pierson v. Ray arose, the names of the parties, or the amendment on which the case turned. They do not give the date of the Enforcement Act of 1871 beyond Neily’s and Zadek’s statements that it is about 150 years old, nor do they identify the racial segregation law at issue in Pierson. The excerpts also do not describe the outcome of Harlow v. Fitzgerald beyond Neily’s account of the “clearly established” standard, and they do not state whether Pierson itself was unanimous or what other holdings it may have contained.