Amid the protests and riots in the wake of the tragic death of African-American Minnesotan George Floyd, the lone Libertarian member of Congress, Representative Justin Amash of Michigan’s third district, sponsored legislation in the United States House of Representatives to amend 42 U.S.C. § 1983, a federal civil rights statute that enables a person to file a civil lawsuit against a state governmental actor who violates the person’s constitutional rights.  Congressman Amash’s legislation would amend the text of the statute to simply say that the defense of qualified immunity and the predecessor defenses from which it evolved are not available to a state governmental actor as affirmative defenses when the state governmental actor is sued under § 1983 for an alleged constitutional violation.  In the following open letter to my new congressman, Rep. Mark Green, I explain why I think it is important for him to cosponsor and vote for passage of Congressman Amash’s bill.

Thank you for reading.

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The Honorable Mark Green, M.D.
533 Cannon HOB
Washington, DC 20515

RE: Constituent Support for the Ending Qualified Immunity Act

Dear Dr. Green:

My name is George Scoville, and I am a lawyer in Nashville, Tennessee.  Earlier this year, my wife and I moved to Nolensville, which is in Tennessee’s 7th district.  In addition to my law practice, I am a published constitutional scholar and a professor of American government and constitutional law at Belmont University in Nashville.  I earned my law degree with honors from the University of Memphis, where I served as the editor-in-chief of The University of Memphis Law Review, a justice on the Honor Council, and a graduate research assistant to an expert in constitutional law.  Before entering private practice last year, I began my legal career as a judicial law clerk to the Honorable Sheryl H. Lipman in the United States District Court for the Western District of Tennessee, where I helped the court resolve numerous constitutional and civil rights issues.

As one of your constituents, speaking only for myself, and because I have specialized knowledge and experience in the areas of constitutional law and civil rights and liberties, I write to formally express my support for the Ending Qualified Immunity Act.  I strongly encourage you not only to vote for its passage but also to cosponsor it.

When you campaigned for office, you rightly worried that, “instead of a legislative branch that makes laws, the new ‘lawmakers’ of the land have become the whim of nine judges on the Supreme Court.”[1]  You have carried that important vision with you to Washington, stating that “we must follow the U.S. Constitution” and “we must transfer back to the people by empowering Congress to fulfill its duties laid out in Article I” because “[t]he Judiciary has overtaken the legislative branch.”[2]  By supporting the Ending Qualified Immunity Act, you can begin delivering on the promise to uphold the separation of powers that our Constitution contemplates.  One of your Republican colleagues has already joined as a cosponsor;[3] you could be, and should be, next.

To provide some brief background, the Radical Republicans of the 39th Congress worried that racial prejudices that lingered after the Civil War, particularly among Ku Klux Klan members in the South, would motivate state governmental actors to deprive newly emancipated slaves of their constitutional rights in various inventive and often brutish ways.[4]  Pursuant to the authority granted to them by both Section 5 of the Fourteenth Amendment and the Necessary and Proper Clause of Article I, the Radical Republicans enacted legislation that provides a federal legal remedy when a state actor violates a person’s federal constitutional or statutory rights.[5]  The text of the statute is straightforward:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States], shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .[6]

That is, when any person acting under color of state law violates a person’s constitutional rights, the injured person is entitled to legal relief, including compensatory damages and injunctions against further similar actions.[7]  The only defense to liability that the statute’s text mentions is that a person cannot use the statute to obtain an injunction against a judge (except in very narrow circumstances).[8]

Barely 40 years ago, however, in the case of Harlow v. Fitzgerald, 457 U.S. 800 (1982), an 8–1 majority of the Supreme Court of the United States usurped the people’s will and Congress’s lawmaking prerogative by fabricating an impenetrable defense to § 1983 claims[9] out of whole cloth:  the modern defense of “qualified immunity,” which is the surviving descendent of prior Supreme Court precedents dating back to the late 1960s that also conjured defenses to § 1983 claims out of thin air.  Under qualified immunity today, a state governmental actor who violates a person’s fundamental constitutional rights can escape legal liability for that violation if, in a judge’s sole opinion, the governmental actor’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[10]  Justice Powell, writing for the majority, reasoned that, if governmental actors had no immunity from suit at all, then the floodgates of frivolous litigation would open, discouraging those actors from doing their jobs effectively for fear of personal financial ruin that can follow even the filing of a lawsuit against them.[11]

In reaching this conclusion, however, Justice Powell and his unelected, life-tenured colleagues aggrandized the Supreme Court at Congress’s expense by making a policy judgment—by exercising a legislative prerogative—and substituting their own policy judgment for the people’s judgment, expressed through the duly enacted legislation of their duly elected representatives in the House and Senate.  Indeed, qualified immunity, as espoused by the Court in Harlow, is not supported by either the text of § 1983 or Congress’s purpose in enacting it.[12]  Qualified immunity is also not supported by any provision of the Constitution of the United States.

When announcing the modern iteration of qualified immunity in Harlow, Justice Powell promised that the defense would not become a “license to lawless conduct.”[13]  Sadly, in practice, history has proven Justice Powell resoundingly wrong.  When an aggrieved plaintiff files a constitutional lawsuit against a state governmental actor under § 1983, qualified immunity empowers the defendant to seek dismissal of the lawsuit without discovery or a trial by arguing that he or she is immune from suit altogether.  At that point, the burden shifts to the plaintiff to (a) prove, by reference to judicial interpretations of the Constitution’s scope and meaning, that the right he or she asserts has been “clearly established,” and (b) convince the judge hearing the case that a reasonable person in the defendant’s shoes would have been aware that his or her conduct violated that “clearly established” right.  But proving that a right is “clearly established” is nearly impossible.

Most prior cases—even if they have nearly identical facts—have often also been summarily dismissed on qualified immunity grounds, and thus they offer no precedential aid to even a grievously harmed individual.  Moreover, because the financial and opportunity costs of an appeal are extraordinary, even for people with means, rarely does intermediate appellate review set a precedent that “clearly establishes” a right.  And even when a person can afford to appeal and subsequently wins on the merits, that precedent “clearly establishing” the right applies only prospectively; it does not apply to the particular appellant’s case, leaving him or her without a remedy for their injuries.  As a result, people everywhere, including Tennesseans of the 7th district, must cross their fingers and hope that, if a state governmental actor ever does violate their fundamental rights, the violation occurs after the United States Court of Appeals for the Sixth Circuit or the Supreme Court “clearly establishes” the right by a judicial decision.

This paradigm offers grim prospects in the interim because (a) even getting to an appellate tribunal is a costly endeavor, and (b) the Supreme Court’s docket has been shrinking every year for several years now, meaning that if a person loses at the Sixth Circuit, their case basically ends.  And because plaintiffs can very rarely accomplish the Herculean feat of proving that their asserted right was “clearly established,” courts accordingly rarely ever reach the reasonableness analysis.  As such, § 1983 suits routinely fail before discovery, much less a trial on the merits.  Under no reasonable analysis of these dynamics of our legal landscape does the status quo honor Congress’s intent and purpose in enacting § 1983, let alone square with the text of the statute itself or the Constitution.

The country is engulfed in turmoil right now over the police-involved deaths of George Floyd, Breonna Taylor, and countless other tragically slain African Americans.  I wish it were not so, but none of us can ignore that the United States has historically struggled, and continues to struggle, with social, cultural, and political prejudices against non-Whites that erect a myriad of barriers to the full realization of the promises of the Declaration of Independence, the Constitution of the United States, and the Bill of Rights.  But the doctrine of qualified immunity—this Supreme Court-manufactured legal fiction—hurts everybody.  Luckily, we can do something about it.  You can do something about it.

Imagine, if you will, a police officer working at a protest.  A protester, whose identity is obscured because she is wearing a surgical mask during the global COVID-19 pandemic, stands directly in front of the officer, chanting slogans and calling for policy reform.  As the crowd swells to a crescendo, the protester reaches for her cellphone to take videos and pictures of the scene, which she enjoys a First Amendment right to do.  But the police officer mistakes her movement as reaching for a weapon, and he tackles and subdues her on the concrete, cracking open her skull and causing permanent brain damage that will require medical attention for the rest of her life.

Now imagine that the protester is a White Christian conservative pro-life advocate, and that the protest is occurring outside a Planned Parenthood facility.

In any other kind of civil lawsuit against any other kind of defendant, the protester would be entitled to recover compensatory damages to pay doctors like you to care for her.  But when this protester files a § 1983 lawsuit against the police officer, asserting violations of her Fourth Amendment right against unreasonable seizures and due process right to bodily integrity, the officer may be able to escape paying for the life-altering brain injuries that he caused because he may receive legal protection under the Supreme Court-manufactured defense of qualified immunity.  Imagine what you would say to the protester—indeed, what you could say—if you had the opportunity to end qualified immunity in 2020, but, for whatever reason, you passed.

The Ending Qualified Immunity Act contemplates a very simple legislative fix.  By simply and expressly stating that the modern doctrine of qualified immunity (and its previous iterations) is not available as an affirmative defense to a § 1983 claim, this legislation would make clear, in no uncertain terms, that no court may rewrite duly enacted legislation based on the policy preferences of a majority of nine unelected, life-tenured justices.  Supporting the Ending Qualified Immunity Act with your vote and cosponsorship, and working with your colleagues on both sides of the aisle to shepherd it through to enactment, is thus a very easy and straightforward way for you to deliver on your promise to uphold the separation of powers.

Dr. Green, you and I have both sworn oaths to support and defend the Constitution of the United States against all enemies, foreign and domestic.  It is past time to end our country’s disastrous experiment with qualified immunity.  The nation and the world are watching what we do next.  I am attempting to do my part by writing you this letter.  Please do not let me down by failing to do yours.

Sincerely yours,

George S. Scoville III, Esq.
Concerned citizen

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[1] Separation of Powers, Dr. Mark Green for Congress: Issues, https://bit.ly/3dxDKIp (last visited June 5, 2020).

[2] Government Reform, Dr. Mark Green: Congressman for Tenn.’s 7th District, https://bit.ly/2XCVP20 (last visited June 5, 2020).

[3] Billy Binion, With 1 Republican Cosponsor, Rep. Justin Amash Gains Tripartisan Support to End Qualified Immunity, Reason (June 11, 2020, 5:10PM), https://bit.ly/2UBTnqS.

[4] See, e.g., George Scoville, Purged by Press Release: First Responders, Free Speech, and Public Employment Retaliation in the Digital Age, 97 Or. L. Rev. 477, 486 (2019).

[5] Id.

[6] 42 U.S.C. § 1983.

[7] See id.

[8] See id.

[9] To be clear, the petitioners in Harlow were federal government officials, and the respondent brought his case pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), whereas § 1983 is the vehicle for constitutional cases against state government officials.  See id. at 802, 805–06.  This distinction is legally insignificant, however, because “a Bivens claim is a ‘federal analog’ to § 1983, and courts use the tests established in the jurisprudence of each interchangeably.”  Scoville, supra note 4, at 548.

[10] Harlow, 457 U.S. at 818.

[11] See id. at 807–08.

[12] See 42 U.S.C. § 1983; Scoville, supra note 4.

[13] Harlow, 457 U.S. at 819.