In a routine decision in March, a unanimous three-judge panel of a federal appeals court ruled against a Texas inmate who was injured when the ceiling of the hog barn he was working in collapsed. The court, predictably, said the inmate could not overcome qualified immunity, the much-criticized legal shield that protects government officials from suits for constitutional violations.
The author of the decision, Judge Don R. Willett, then did something unusual. He issued a separate concurring opinion to draw attention to the “game-changing arguments” in a recent law review article, one that seemed to demonstrate that the Supreme Court’s entire qualified immunity jurisprudence was based on a mistake.
“Wait, what?” Judge Willett wrote, incredulous.
Don R. Willett, Circuit Judge, concurring:
Today’s decision upholding qualified immunity is compelled by our
controlling precedent. I write separately only to highlight newly published
scholarship that paints the qualified-immunity doctrine as flawed—
foundationally—from its inception. 1
For more than half a century, the Supreme Court has claimed that (1)
certain common-law immunities existed when § 1983 was enacted in 1871,2
and (2) “no evidence” suggests that Congress meant to abrogate these
immunities rather than incorporate them.3 But what if there were such
evidence? Indeed, what if the Reconstruction Congress had explicitly
stated—right there in the original statutory text—that it was nullifying all
common-law defenses against § 1983 actions? That is, what if Congress’s
literal language unequivocally negated the original interpretive premise for
qualified immunity? Professor Alexander Reinert argues precisely this in his
new article, Qualified Immunity’s Flawed Foundation—that courts have been
construing the wrong version of § 1983 for virtually its entire legal life.
1 Alexander A. Reinert, Qualified Immunity’s Flawed Foundation,
111 Cal. L. Rev. 201 (2023) (“This Article takes aim at the roots of the doctrine—
fundamental errors that have never been excavated.”).
2 Pierson v. Ray, 386 U.S. 547, 556–57 (1967) (tethering qualified immunity to
common-law defenses that existed circa 1871, like subjective good faith). Professor William
Baude has challenged this historical premise—forcefully and methodically—arguing that
qualified immunity departs significantly from traditional common-law principles. See
William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45, 49–60 (2018).
Professor Joanna Schwartz likewise questions the doctrine’s origins, contending there were
no common-law immunities. See Joanna C. Schwartz, The Case Against Qualified Immunity,
93 Notre Dame L. Rev. 1797 (2018).
3 Briscoe v. Lahue, 460 U.S. 325, 337 (1983) (“[W]e find no evidence that Congress
intended to abrogate the traditional common-law . . . immunity in § 1983 actions.”).
As passed by the Reconstruction Congress, Section 1 of the Civil
Rights Act of 1871 (now colloquially known as § 1983) read this way:
[A]ny person who, under color of any law, statute, ordinance,
regulation, custom, or usage of any State, shall subject, or cause
to be subjected, any person within the jurisdiction of the
United States to the deprivation of any rights, privileges, or
immunities secured by the Constitution of the United States,
shall, any such law, statute, ordinance, regulation, custom, or
usage of the State to the contrary notwithstanding, be liable to the
party injured in any action at law, suit in equity, or other proper
proceeding for redress . . . .4
The italicized language—the “Notwithstanding Clause,” as Professor
Reinert calls it—explicitly displaces common-law defenses.5 The language
that Congress passed makes clear that § 1983 claims are viable
notwithstanding “any such law, statute, ordinance, regulation, custom, or
usage of the State to contrary.” The language is unsubtle and categorical,
seemingly erasing any need for unwritten, gap-filling implications,
importations, or incorporations. Rights-violating state actors are liable—
period—notwithstanding any state law to the contrary.
Then things went off the rails, quickly and stealthily. For reasons lost
to history, the critical “Notwithstanding Clause” was inexplicably omitted
from the first compilation of federal law in 1874. 6 The Reviser of Federal
4 Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13 (1871).
5 Reinert, supra at 235 and n.230 (observing that “this clause meant to encompass
state common law principles,” noting that this understanding—that “custom or usage”
was synonymous with common law—was, “after all,” why the Court overruled Swift v.
Tyson, 41 U.S. 1 (1842), in Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), and also citing W.
Union Tel Co. v. Call Pub. Co., 181 U.S. 92, 102 (1901), which in turn cites Black’s Law
Dictionary for the proposition that common law derives from “usages and customs”).
6 Reinert, supra at 207, 237.
Statutes made an unauthorized alteration to Congress’s language. And that
error was compounded when the various revised statutes were later
published in the first United States Code in 1926. The Reviser’s error,
whether one of omission or commission, has never been corrected. Today,
152 years after Congress enlisted the federal courts to secure Americans’
constitutional rights, if one were to Google “42 U.S.C. § 1983,” the altered
version that pops up says nothing about common-law defenses. According to
Professor Reinert, that fateful, unexplained omission means that courts and
scholars have never “grappled” with the Notwithstanding Clause’s
All to say, the Supreme Court’s original justification for qualified
immunity—that Congress wouldn’t have abrogated common-law
immunities absent explicit language—is faulty because the 1871 Civil Rights
Act expressly included such language. Those sixteen lost words, by presumably
encompassing state common-law principles, undermine the doctrine’s long-
professed foundation and underscore that what the 1871 Congress meant for
state actors who violate Americans’ federal rights is not immunity, but
liability—indeed, liability notwithstanding any state law to the contrary.8
7 Id. at 236, 244.
8 Beyond excavating the long-lost text of what the Reconstruction Congress
actually passed, Professor Reinert asserts a second fundamental misstep: qualified
immunity is rooted in a flawed application of the checkered “Derogation Canon.” This
canon of statutory interpretation urges that statutes in “derogation” of the common law
should be strictly construed. The Court misapplied this canon, says Professor Reinert,
reading § 1983’s silence regarding immunity as implicit adoption of common-law immunity
defenses rather than rejection of them. Id. at 211 n.56 (collecting cases). Professor Reinert
maintains that the Derogation Canon has always rested on shaky ground, with Justice
Scalia, writing with lexicographer Bryan Garner, branding it “a relic of the courts’
historical hostility to the emergence of statutory law.” Id. at 218 (citing Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 318 (2012)). Even more importantly, Reconstruction-era legislators would
These are game-changing arguments, particularly in this text-centric
judicial era when jurists profess unswerving fidelity to the words Congress
chose. Professor Reinert’s scholarship supercharges the critique that modern
immunity jurisprudence is not just atextual but countertextual. That is, the
doctrine does not merely complement the text—it brazenly contradicts it.
In arguing that qualified immunity is flawed from the ground up,
Professor Reinert poses a provocative question: “If a legislature enacts a
statute, but no one bothers to read it, does it still have interpretive force?”9
It seems a tall order to square the modern qualified-immunity regime with
Congress’s originally enacted language. But however seismic the
implications of this lost-text research, “‘[a]s middle-management circuit
judges,’ we cannot overrule the Supreme Court.”10 Only that Court can
definitively grapple with § 1983’s enacted text and decide whether it means
what it says—and what, if anything, that means for § 1983 immunity
not have understood the canon as operating to dilute § 1983 by implying common-law
defenses. Why? Because since the Founding era, the Supreme Court had only used the
Derogation Canon (criticized by mid-nineteenth courts and treatises for arrogating power
to judges) to protect preexisting common law rights, never to import common law defenses
into new remedial statutes. Reinert, supra at 221–28. In short, the Derogation Canon does
not validly apply to defenses. The more applicable canon, around which Reconstruction-
era courts had coalesced, was a contrary one: remedial statutes—such as § 1983—should
be read broadly. Id. at 219, 227–28. In any event, as argued above, even if the Derogation
Canon did apply to defenses, the as-passed language of § 1983 explicitly displaced any
existing common-law immunities.
9 Id. at 246.
10 Sims v. Griffin, 35 F.4th 945, 951 n.17 (5th Cir. 2022) (quoting Whole Woman’s
Health v. Paxton, 978 F.3d 896, 920 (5th Cir. 2020) (Willett, J., dissenting), rev’d en banc,
10 F.4th 430 (5th Cir. 2021)).
11 Not all Supreme Court Justices have overlooked the Notwithstanding Clause. In
Butz v. Economou, the Court quoted the as-passed statutory language, including the
Notwithstanding Clause, yet, in the same breath, remarked that § 1983’s originally enacted
text “said nothing about immunity for state officials.” 438 U.S. 478, 502–03 & n.29 (1978)
(citing Pierson v. Ray, 386 U.S. 547 (1967), Imbler v. Pachtman, 424 U.S. 409 (1976), and
Scheuer v. Rhodes, 416 U.S. 232 (1974)). Indeed, members of the Supreme Court have often
noted the Notwithstanding Clause’s existence and omission from the U.S. Code. See Hague
v. Comm. for Indus. Org., 307 U.S. 496, 510 (1939); Monroe v. Pape, 365 U.S. 167, 228 (1961)
(Harlan, J., concurring); Adickes v. S. H. Kress & Co., 398 U.S. 144, 203 n.15 (1970)
(Brennan, J., concurring); see also Screws v. United States, 325 U.S. 91, 99 n.8 (1945)
(quoting the originally enacted text, including the Notwithstanding Clause); Monroe, 365
U.S. at 181 n.27 (majority) (same); Examining Bd. of Eng’rs, Architects, & Surveyors v. Flores
de Otero, 426 U.S. 572, 582 n.11 (1976) (same); Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
691–92 (1978) (same); Chapman v. Hous. Welfare Rights Org., 441 U.S. 600, 608 n.15 (1979)
(same); Briscoe v. LaHue, 460 U.S. 325, 357 n.17 (1983) (Marshall, J., dissenting) (same);
Wilson v. Garcia, 471 U.S. 261, 262 n.1 (1985) (same); Jett v. Dall. Indep. Sch. Dist., 491
U.S. 701, 723 (1989) (same); Ngiraingas v. Sanchez, 495 U.S. 182, 188 n.8 (1990)