Scholars, judges, activists, and policymakers alike have criticized the doctrine of qualified immunity, which emerged in Pierson v. Ray to shield government actors from monetary liability in a wide range of suits filed under 42 U.S.C. § 1983, derived from the Civil Rights Act of 1871. These criticisms have ranged from the practical to the principled, but they largely ignore the question of statutory interpretation: is it valid to read § 1983, which makes no mention of any defense or immunity, as incorporating a qualified defense for government officials who acted in good faith and with probable cause? The Court in Pierson found that this defense existed in the common law at the time the Civil Rights Act was passed, and it extrapolated from there that legislators would have barred the good-faith, probable-cause defense explicitly, had they wanted to prevent its successful assertion. This Article will analyze how the Court reached that conclusion, question whether the “dog that didn't bark” canon of congressional silence leads to Pierson's conclusion, and review other approaches to statutory interpretation for a broader look at whether § 1983 incorporates qualified immunity. Finally, it will trace the expansion of qualified immunity far beyond its original (yet still dubious) formulation in Pierson in 1967. Ultimately, this Article will conclude that the foundations of qualified immunity in Pierson's reading of § 1983 are shaky and that the doctrine is poised to fall.
Unincorporating Qualified Immunity,
Loy. U. Chi. L. J.
Available at: https://lawecommons.luc.edu/luclj/vol53/iss2/5