The statute
Section 1983 is the federal civil rights law under which a person may sue a government official for violating his rights. Clark Neily, describing the statute’s origin, said it was enacted in the wake of the Civil War, when Congress was aware of the systematic abuse and violation of individual rights, particularly in the South, by many government actors—sheriffs and constables and so forth. Congress responded with what was then called the First Enforcement Act, also known as the Ku Klux Klan Act; it is referred to today as Section 1983 because that is where it appears in the U.S. Code, 42 U.S.C. Section 1983. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
Neily quoted the operative language: any state actor—meaning any police officer, any other government official employed by a state or local government—shall be liable to the person injured for the deprivation of any right. He called it a sweeping protection of civil rights, providing individuals whose rights had been violated by government officials, including police, the ability to file a civil rights lawsuit in federal court to vindicate those rights and seek compensation. Bob Zadek framed the design as a substitute for other remedies: the civil law system, not the criminal law system and not any bureaucracy, would police bad actors in state and local government, on the theory that once people are liable for their bad acts they are less likely to commit them. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
In a later episode Neily returned to the same language, noting that it has not changed for 150 years, and that up until 1967 courts simply applied it as written: if you violated somebody’s rights, you were going to be liable to them. Judicial Round-Up with Clark Neily (2022)
Judicial amendment: Pierson v. Ray
Neily dated the Supreme Court’s involvement to the mid-twentieth century, when the Court began to hold that the Constitution, and specifically the 14th Amendment, protects a variety of individual rights against violation by state and local actors. Not long after, he said, the Court began the process of judicially amending Section 1983 to limit its scope and make it a less effective accountability mechanism than the one Congress designed. That process began with a 1967 case, Pierson v. Ray. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
As Neily described the case, government officials—police and a couple of judges—were involved in the enforcement of a racial segregation law that was later struck down. Sued, they argued 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 Court agreed in essence, holding that a police officer who enforces a law thought to be constitutional, later struck down, should not be liable simply because of the later ruling. Neily characterized this as the invention of a good faith exception, and noted that Congress could have written the exception into the text of the statute but did not—a point he said most conservatives consider relevant, since if the language is not there it is not for the court to make it up. Judicial Round-Up with Clark Neily (2022)
Zadek called the first step benign and unobjectionable, asking how one could impose on a police officer the duty to predict subsequent unconstitutionality. Neily agreed it was a narrow exception and probably illegitimate, but said it would not do much work because it addressed a unique set of circumstances. He described it instead as the nose of the judicial camel under the proverbial tent. Judicial Round-Up with Clark Neily (2022)
Harlow v. Fitzgerald and the “clearly established” standard
Fifteen years later, Neily said, the Supreme Court made the really big move, in Harlow v. Fitzgerald (1982). The Court took the narrow good faith concept and expanded it, in effect rewriting the text of Section 1983: instead of being able to sue for the deprivation of any right, which is what Congress said, the Supreme Court inserted two words and said you can only sue for the deprivation of a clearly established right. That language, Neily stressed, does not appear in the text of the congressionally written statute. Judicial Round-Up with Clark Neily (2022)
The practical consequence Neily described is a demanding showing: 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 offered a hypothetical formulation of the required specificity—courts having already said you cannot punch a guy on the left side of the face on a Tuesday when he is wearing handcuffs behind his back—and said that if any one of those facts is different in the next case, the right is not clearly established and courts hand out free passes. His verdict on the doctrine was blunt: it has been a disaster. Judicial Round-Up with Clark Neily (2022)
Scope and effect
Neily stated that qualified immunity applies everywhere: it is a doctrine announced and enforced by the U.S. Supreme Court, and all lower federal courts are bound to apply it. There is no place in the country where one can escape it, at least when attempting to sue a government official under Section 1983. He noted that some states have state-level civil rights laws, and some of those states also have qualified immunity at the state level, but not all of them do; generally speaking, he said, it is very difficult to sue a state official under state law, so without the federal cause of action a plaintiff is often out of luck. Qualified immunity, he concluded, applies in every single Section 1983 case in every single part of the country. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
Zadek placed the doctrine within a broader account of accountability. He identified three basic controls on bad police behavior: criminal prosecution, which he called rare to nonexistent because the criminal justice system does not eat its own; internal affairs, which he called a highly ineffective check, often regulated by union contract that will try to neuter its effect, with officers’ records often unavailable to the general public; and the civil lawsuit, which ought to have been effective except that, as a result of qualified immunity, the third and last control is gone. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
In the 2022 episode Neily offered a definition of immunity as a free pass, analogizing it to a hypothetical state law giving left-handed people immunity from tort cases arising out of their use of a motor vehicle. Applied to officials, he said, qualified immunity enables a government actor to say that he might be at fault and might well have injured the plaintiff, but that the particular way in which he injured the plaintiff has not arisen in that jurisdiction yet, so he was not on notice and the suit is dismissed even though it may be meritorious. He called it a get-out-of-responsibility free card for rights-violating government officials. Judicial Round-Up with Clark Neily (2022)
Across episodes: the same argument, twice
The topic is argued in the same terms across the excerpts: the June 2020 episode “An Unprecedented Opportunity to Revisit Unqualified Immunity” and the July 2022 “Judicial Round-Up with Clark Neily” both feature Clark Neily walking through the 1871 statute, Pierson v. Ray, and Harlow v. Fitzgerald, with Zadek supplying the framing; the excerpts show no development between the earlier and later treatment beyond the addition in 2022 of the left-handed-driver analogy and the “clearly established” hypothetical about the handcuffed man. A third episode, “Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity,” carries a near-identical segment on the origins of qualified immunity, but the excerpt is a duplicate of the 2022 round-up and adds nothing new. Judicial Round-Up with Clark Neily (2022) Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)
What the sources do not cover
The excerpts do not state the outcome of any case beyond the general holdings Neily attributes to Pierson v. Ray and Harlow v. Fitzgerald, nor do they identify the plaintiff in either case or the jurisdiction. They do not describe any legislative effort to amend or repeal Section 1983 or qualified immunity, and they do not name the states that have their own civil rights laws or their own qualified immunity doctrines. The excerpts also break off mid-segment at several points, so the discussion of the rationale for immunity and the role of juries is not available.