See also: How to refer to laws, Prison Litigation Reform Act
42 U.S.C. § 1983 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, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Originally enacted in the wake of the U.S. Civil War, § 1983 allows individuals to suefor damages for violations of their constitutional rights by State officials and agencies acting "under color of State law" (i.e. making use of authority granted by State law). For many years after its enactment there was very little litigation under § 1983, primarily because of the original understanding of the phrase "under color of state law." Originally, courts construed "under color of" to mean that, in order to violate § 1983, the unconstitutional action of a State official had to be authorised by State law. Thus, if a State official violated the Constitution and State law, a § 1983 action would have to be dismissed. This left only a very narrow field of application for § 1983.

The U.S. Supreme Court changed all that with its decision in Monroe v. Pape, 365 US 167 (1961). In Monroe, the Court rejected the argument that officials who abused the authority granted them by State law were not acting "under color of state law," holding that "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law," 365 US, at 183, and thus actionable under § 1983.

Having substantially broadened the scope of § 1983 liability, the Court gradually began to balance out the general liability for constitutional violations by State officials with a doctrine of "qualified immunity" from suit1. In Pierson v. Ray, 386 US 547, 557, for example, the Court noted that "a police officer is not charged with predicting the future course of constitutional law," and held that State officials were entitled to immunity from suit for an unconstitutional arrest if could show that they acted in "good faith" - i.e. in the sincere belief that their actions were lawful - and with probable cause. This limited immunity was later conditioned by Wood v. Strickland, 420 US 308 (1975) on proof that the defendant could show that the challenged act was "objectively reasonable" in light of "settled, indisputable law," and that the defendant acted in subjective good faith.

All this changed in 1982 with the Harlow v. Fitzgerald decision, 457 US 800. Harlow eliminated the "good faith" prong, and, with the following words, ushered in a new era of solicitude to government officials sued for constitutional violations:
In the context of Butz' attempted balancing of competing values, it now is clear that substantial costs attend the litigation of the subjective good faith of government officials. Not only are there the general costs of subjecting officials to the risks of trial - distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service. There are special costs to "subjective" inquiries of this kind. Immunity generally is available only to officials performing discretionary functions. In contrast with the thought processes accompanying "ministerial" tasks, the judgments surrounding discretionary action almost inevitably are influenced by the decisionmaker's experiences, values, and emotions. These variables explain in part why questions of subjective intent so rarely can be decided by summary judgment. Yet they also frame a background in which there often is no clear end to the relevant evidence. Judicial inquiry into subjective motivation therefore may entail broad-ranging discovery and the deposing of numerous persons, including an official's professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government.

457 US, at 816-817. The burdens of litigation for the defendant and the disruption of effective government have become the new refrain of the qualified immunity doctrine. This marked a radical departure from the original understanding of immunity. When the Pierson Court recognised that individual defendants accused of constitutional violations under § 1983 were entitled to "qualified immunity," it was merely reiterating a principle of law that had long been in existence at the time that § 1983 was adopted. The common law immunity of Pierson was based on the same rationale on which common law immunity has generally been based: good faith. If, the reasoning goes, the defendant was acting in good faith, i.e. honestly believed her actions to be lawful/constitutional, then there was no need for deterrence - one can assume that someone who inadvertently violates a person's constitutional rights wouldn't have done it if she'd known that it was unconstitutional.

Under Harlow, it does not matter if the defendant acted with malice or evil intent. Instead, the entire qualified immunity inquiry focuses on whether the right that the defendant allegedly violated was "clearly established" at the time of the defendant's actions, and, for twenty years now, courts have been trying to figure out just what "clearly established" means.

The current understanding of "qualified immunity" - at least until the Supreme Court hears its next § 1983 case - is as follows:

If a defendant moves to dismiss the lawsuit based on qualified immunity, the plaintiff must show that the defendant's conduct was made unconstitutional by "clearly established" law prior to the date of the defendant's actions and that the right the defendant allegedly violated is "currently cognisable," i.e. the right exists at the time of suit. In order to show that a right is "currently cognisable," the plaintiff must be able to point to authoritative precedent - preferably from the Supreme Court or the court of appeals for the judicial circuit in which the case is being tried - to show that the right that the plaintiff asserts currently exists. Of course, just because it exists at the time of the suit doesn't mean that the defendant can't assert qualified immunity. It just means that there are grounds to allow the suit to proceed assuming that the plaintiff can show that his rights were clearly established at the time of the defendant's challenged actions. On the other hand, if the alleged right is not "currently cognisable," then the plaintiff hasn't stated a claim at all, and the entire suit must be dismissed - unlike a mere judgment that the defendant is entitled to qualified immunity, the defendant will not only be off the hook for money damages, but for injunctive and declaratory relief as well. The one major advantage of this approach is that of giving the courts leeway to further develop the law surrounding the asserted rights.

If the plaintiff has shown that his rights have indeed been violated by the defendant, the next question is whether those rights were "clearly established" at the time of the alleged violation. There are several ways of doing this. First, the plaintiff may seek to show that the defendant's actions were so obviously out of line with constitutionally acceptable conduct that a reasonable official wouldn't need a judicial opinion to know it was unconstitutional. This is the outgrowth of the Court's decision in United States v. Lanier2, 520 US 259 (1997), which dealt with a State judge who sexually assaulted women who had cases before him, threatening to rule against them if they did not submit. In a long overdue tribute to common sense in qualified immunity, the Court held that a government official who commits sexual assault in his official capacity can't possibly believe such conduct to be in compliance with the Constitution.

Of course, a plaintiff who defeats qualified immunity based on Lanier and has it upheld on appeal3 would be advised to invest in a lottery ticket, because such luck is exceedingly rare. Courts are loathe to deny qualified immunity based on "general principles," as was done in Lanier. If the court does not believe the constitutional violation to be obvious to all but the willingly blind, the plaintiff must try to establish that there is specific precedent from the defendant's judicial circuit that establishes the right, and, barring that, that there is a consensus amongst other jurisdictions that the right exists.

There is, of course, one obvious objection to be made to the current qualified immunity doctrine: it's stupid. Immunity, like evidentiary privilege (allowing people to refuse to testify), has traditionally been the exception, only to be applied when the grounds for granting immunity outweigh the strong policy in favour of holding wrongdoers accountable for their unawful acts. As originally conceived in Pierson, qualified immunity functioned in just this way. Since the 1980s, however, this approach, which made liability for unconstitutional acts the norm, has been all but vanquished. Under current law, an official who has no idea that he's violating "clearly established law" (likely the majority) is liable despite acting in subjective good faith. On the other hand, an official defendant who acted out of sheer malice, intending to cause unlawful harm to the plaintiff, will not be subject to liability if the judge considers the law sufficiently unclear. It is hard to see how the doctrine's asserted justification - preventing able, well-intentioned people from being discouraged from entering public service by the fear of insubstantial § 1983 suits - can possibly justify such a broad, intent-neutral doctrine.




1 Qualified immunity applies only to suits for damages. A defendant entitled to qualified immunity can still be sued for a declaratory judgment stating that the defendant's actions were unconstitutional or an injunction requiring the defendant to refrain from such actions in the future.
2 Lanier did not specifically deal with § 1983, but with an analogous criminal provision (18 USC § 242). Courts have held that § 242 cases are relevant to § 1983 cases.
3 Caution: Only try in the Ninth Circuit!