Police Can Legally Set You On Fire Because Someone In The 1800s Made A Copying Error

If the Reviser were alive today, maybe we'd give him qualified immunity for all the lives he's ruined.

oops keyboardQualified immunity, the Supreme Court-approved doctrine that law enforcement can violate constitutional rights as long as it’s within the scope of their official duties and the right isn’t “clearly established,” covers everything from locking people up for satirical Facebook posts to tasing a man covered in gasoline to set him on fire to shooting unarmed 10-year-olds in their front lawn while aiming for a “non-threatening” dog.

You’d think, based on the word “qualified,” that this protection is relatively circumscribed, but you’d be wrong. Courts routinely shrug that violations are not “clearly established” rights because they’ve never had an opportunity to rule on them before… and therefore they cannot rule on them now. Nice little dystopian paradox!

But an upcoming article in the Cal Law Review has an extra layer of Kafkaesque news for you: the whole doctrine may be the result of a scrivener’s error.

In Qualified Immunity’s Flawed Foundation, Cardozo Law’s Alexander A. Reinert delves into the history of the doctrine and finds its foundation not only flawed, but non-existent:

Most critically, scholars and courts have overlooked the originally-enacted version of Section 1983, which contained a provision that specifically disapproved of any state law limitations on the new cause of action. For unknown reasons, that provision was not included by the Reviser of the Federal Statutes in the first compilation of federal law in 1874. This Article is the first to unearth the lost text of Section 1983 and demonstrate its implications.

WHAT?!?!? This is beyond momentous. The “first to unearth the lost text” makes it sound like Reinert hired Nic Cage to go spelunking under the Capitol rotunda, but it’s not nearly that conspiratorial — he just looked at the original text in the records:

In between the words “shall” and “be liable,” it contained the following clause: “any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding.”

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Qualified immunity rests on the Court’s claim that common law immunities shield law enforcement absent a clear statement from Congress that Section 1983 overrides existing legal customs. The statute Congress enacted included a clear statement from Congress that Section 1983 overrides existing legal customs.

Notably, the distinction between Section 1983 as enacted and as reflected in the United States Code is not the product of any positive lawmaking. Rather, the version of the statute we find on the shelves of any law library is the product of a decision by the first Reviser of federal statutes to, for unclear reasons, remove the italicized language when the first edition of the Revised Statutes of the United States was published in 1874. Although the Revised Statutes were supplemented and corrected over time until the first United States Code was published in 1926, the Reviser’s error in omitting the Notwithstanding Clause from the reported version of the Civil Rights Act of 1871 was never corrected.

So because Bartleby over here preferred not to copy the statute in its entirety in 1874, cops are mostly free to squash constitutional rights today.[1] By the way, Professor Reinert includes in the footnotes that Congress ultimately hired a new Reviser “because of complaints about the accuracy” so it’s not like this guy earned the benefit of the doubt over his copying skills.

We’ll see how this article plays in future civil rights cases, but the big winner coming out of this article might well be Clarence Thomas, who’s been hankering for a solid Originalist argument to revisit qualified immunity for some time now:

“We have ‘substitute[d] our own policy preferences for the mandates of Congress’ by conjuring up blanket immunity,” noted Thomas, “and then failed to justify our enacted policy.”

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And that’s what he thought before he knew what Congress actually mandated!


[1] The article also does a deep dive on the doctrine’s reliance upon a janky application of the derogation canon, which is problematic because the canon is meant to apply to claims not defenses and it’s also contrary to the principle that remedial statutes should be read broadly.

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.