Brian Collins

Those of us who practice in the realm of civil rights litigation know the drill by now: Government and government officials are generally immune from suit.

There are certain exceptions. Civil rights claims brought under Title 42 of the U.S. Code, Section 1983, are one such exception, but only some of the time.

Thus, we arrive at the doctrine of qualified immunity — those times when a plaintiff can recover against a government official or a municipality, among other government actors and entities, for civil rights abuses if the claimant meets certain criteria.

To prevail on a qualified immunity claim, plaintiffs must meet a two-part test. As the U.S. Court of Appeals for the Fifth Circuit articulated in its recent Rogers v. Jarrett decision, plaintiffs must "(1) raise a fact dispute on whether [their] constitutional rights were violated by the defendants' individual conduct, and (2) show those rights were 'clearly established at the time of the violation.'"

It is the second part of the test that does most of the work, or the damage, depending on your perspective.

In other words, taken to its extreme, the second part of the test excuses government officials for admitted constitutional violations, i.e., bad behavior, so long as they were the first to do it.

It has the potential to swallow the first part of the test, and can leave plaintiffs who were wronged with no recourse.

That said, a concurrence in Rogers v. Jarrett and new legal scholarship the concurrence cites provide the basis for additional avenues and arguments for plaintiffs to attack qualified immunity at its foundations.

Where Qualified Immunity Comes From

First, some background: Section 1983, passed by the Reconstruction Congress following the Civil War, was aimed at overcoming the reluctance of government officials to enforce Reconstruction rights.

You may recall these amendments from your constitutional law or civics class as the 13th, 14th and 15th Amendments, which abolished slavery, served as the basis for equal protection and due process rights against the states, and afforded the right to vote to all men, respectively.

Therefore, given the new state of the union following the Civil War, the Reconstruction Congress passed Section 1983.

The statute itself makes no reference to immunity at all, so the doctrine of qualified immunity does not come from the statute, but rather is a product of judge-created law.

At first, it existed as a good faith exception to immunity, which was parallel to the immunities that existed in 1871 when Congress passed Section 1983.

However, over time, the doctrine evolved into the one we know today with the above two-prong analysis.

The doctrine is not without its detractors, for a variety of reasons and from both sides of the political spectrum. For example, Justice Clarence Thomas is a notable critic and skeptic of the doctrine, viewing it as judicial overreach.

Justice Thomas has criticized the doctrine for its lack of textual support and its seeming contradiction with the original intent of the Reconstruction Congress.[1]

This criticism from Justice Thomas, among others, makes the recent developments out of the Fifth Circuit and the legal academy interesting to watch.

Rogers v. Jarrett: A Harbinger, or Much Ado About Nothing?

There is nothing remarkable in the facts of Rogers v. Jarrett, beyond the tragedy that befell the plaintiff — a tragedy for which, according to the federal courts, there is at present no recourse.[2]

Kevion Rogers was incarcerated at a prison in Texas and trusted by prison staff to work unsupervised in the hog barn. While working in the barn, the ceiling collapsed, striking him in the head.

He told a prison agricultural specialist that he needed medical attention. The agricultural specialist looked him over, thought he looked OK and ordered him back to work.

A short time later, Rogers asked another prison staffer for medical attention. This staffer radioed a supervisor, who, based on the staffer's report, thought Rogers was not in a serious condition, and did not immediately grant the request for medical attention.

Rogers' condition later worsened. The prison staff then quickly sent him for medical attention. He went to the hospital, where he was diagnosed with a traumatic brain injury.

Rogers sued the agricultural specialist, the specialist's supervisor and the Texas Department of Criminal Justice under Section 1983, alleging that "prison staff violated his Eighth and Fourteenth Amendment rights by acting with deliberate indifference towards him." 

The U.S. District Court for the Southern District of Texas dismissed the claim on qualified immunity grounds, and subsequently, the Fifth Circuit affirmed.

If this history and facts were the extent of the case, it would be unremarkable.

The Fifth Circuit held first that there was no constitutional violation; that is, that the defendants did not act with deliberate indifference toward Rogers and his serious medical condition such that they violated the Eighth and 14th Amendments — a conclusion that is debatable on the facts.

Second, the Fifth Circuit ruled that even with a constitutional violation, the constitutional right was not clearly established, and thus qualified immunity applied.

U.S. Circuit Judge Don Willett, who wrote the majority opinion and has expressed doubts about the propriety of qualified immunity in previous rulings, wrote a separate concurrence that highlighted new scholarship — a California Law Review article titled "Qualified Immunity's Flawed Foundation," published by Alexander Reinert of Yeshiva University's Benjamin N. Cardozo School of Law — questioning the foundations of qualified immunity.

The article posits, and Judge Willett cites favorably, the proposition that the original version of Section 1983 passed by the Reconstruction Congress included a clause, dubbed the "notwithstanding clause," which was omitted from the published versions of the U.S. Code.

The notwithstanding clause, italicized below within the full text of Section 1983, would potentially upend all qualified immunity jurisprudence if full effect were given to its apparent plain meaning:


In other words, the text of the statute as passed by the Reconstruction Congress says that the remedies under Section 1983 are available, regardless of any law, statute, ordinance, regulation, custom or usage to the contrary.

This language is significant because of the role that the "derogation canon" — a well-established canon of statutory construction — has played in the interpretation of Section 1983 and the development of qualified immunity.

The derogation canon says that statutes in derogation — or abolishing certain aspects — of the common law should be strictly construed, the idea being that courts will not displace the common law when faced with a statute potentially to the contrary, unless the statute explicitly says that it intends to displace the common law.

In the context of Section 1983, the U.S. Supreme Court has used the canon as a means of importing common law defenses of immunity from suit that were in place at the time of the passage of Section 1983, the rationale being that the Reconstruction Congress did not say that it intended to displace immunity defenses, so they must survive the passage of Section 1983.

The current state of qualified immunity, however, goes beyond the original defenses available, moving from a good faith-based justification to the more rigid constitutional violation of a clearly established right. The latter did not exist at the time of the Reconstruction Congress and is wholly judge-created.

Further, use of the derogation canon in this context differs from its typical use; that is, the derogation canon is typically used to prevent the displacement of rights or claims, not defenses such as immunity.

Besides these flaws, Reinert's article and Judge Willett's concurrence note that not only does qualified immunity have no basis in the text of Section 1983, but the Reconstruction Congress also does appear to have specifically approved language meant to displace common law defenses by the passage of the notwithstanding clause.

This language is wholly logical when taken in the historical context. The Reconstruction Congress was reacting to resistance to enforcement of constitutional and other rights, so Congress would want to allow Section 1983 to have the fullest impact possible and would seek for its enforcement, notwithstanding existing law to the contrary.

What This Means for Practitioners

So what does this mean for practitioners? Does the notwithstanding clause and Judge Willett's concurrence provide a magic bullet?

Unfortunately, magic bullets in the law are rare, and this is no exception. First, although the original language passed may differ from what is in the U.S. Code, the version of Section 1983 published in the U.S. Code is the only version that stands as positive law, meaning it is the only version with legal effect.

Second, there is the reality that judges at all levels may be reluctant to cast aside long-standing Supreme Court precedent based on an obscure finding by a law professor, no matter how well reasoned.

However, it would still be advantageous for practitioners to highlight the concurrence and the article when challenging qualified immunity — arguing that the court has misapplied the derogation canon, and that the immunity even reaches beyond the immunities in place at the time that the Reconstruction Congress passed the law — while also marrying this novel argument to the more classic arguments against it discussed above.

Having the ability to also argue that the very foundation of the doctrine is flawed because it goes directly against the actual intent of the legislators adds another potentially powerful arrow to the attorney's quiver.

Only the Supreme Court can truly change the landscape of qualified immunity as it exists. Perhaps Justice Thomas will prevail upon his colleagues, and perhaps this additional argument, which ties back to the original intentions of the legislators, will provide the new impetus needed to succeed.

Until there is a more broad-based disruption in the qualified immunity jurisprudence, plaintiffs will have to continue to construct creative factual and legal arguments to secure legal recourse when government officials violate their rights.

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Brian Collins is an associate at Van Naarden Spizer Chase and Pinto.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See, e.g., Hoggard v. Rhodes, et. al , 594 U.S. ___ (2021) (Statement of Thomas, J. on Denial of Writ of Certiorari).

[2] Rogers v. Jarrett , No. 21-20200 (5th Cir. March 30, 2023).