OP-ED: The Supreme Court Bears Responsibility for George Floyd’s Death
The murder of George Floyd one year ago by Minneapolis police officer Derek Chauvin once again exposed the gaping chasm between our Constitution’s promises and the reality of policing in America. While the criminal conviction of Derek Chauvin by a Minneapolis jury provides some accountability for Floyd’s murder, our current system has done little to stanch the flood of police violence that took Floyd’s life—and the lives of so many others—because the Supreme Court has repeatedly gutted one of our most important federal civil rights laws.
Congress must begin the work of repairing our system of constitutional accountability by undoing the court’s decimation of one key law. Known as Section 1983, the law allows individuals to go to court to redress violations of constitutional rights by state and local governments and their agents. The Supreme Court, though, over the years has eviscerated it by inventing doctrines found nowhere in the text or history of the law.
In order to enforce the 14th Amendment, Section 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State” subjects any person “to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured” in a court of law. Enacted in 1871 against the backdrop of horrific state and Ku Klux Klan violence aimed at undoing Reconstruction’s promises of racial justice, Section 1983 gave those victimized by official abuse of power a critically important tool to hold governments and their agents accountable in a court of law. The law aimed to stop state actors and others from killing, brutalizing, and terrorizing Black people with impunity.
To this end, the text of Section 1983 does not recognize any immunities from accountability.
Congress made a conscious choice not to provide any official immunities because it sought to hold state officials accountable for violating constitutional rights, not to permit such officials to flout the law with impunity.
What is less well-known is that Congress explicitly rejected the idea that persons should be exempt from responsibility simply because they held a position of power. Congress modeled Section 1983’s design of constitutional accountability on the Civil Rights Act of 1866, which contained criminal penalties against state officials that violated the law’s prohibitions on racial discrimination. In debates over this precursor to Section 1983, the law’s supporters insisted that official immunities are akin to the idea that “the King can do no wrong” and wrongfully “places officials above the law.” Section 1983 incorporated an identical remedial framework. Section 1983, like the 1866 Act, did not provide any immunities because Congress refused to place officials “above the law.”
The Supreme Court has repeatedly insisted that the court’s role in statutory interpretation is to enforce the plain meaning of the words chosen by Congress. But it has repeatedly ignored the text, context, and history of Section 1983, doing violence to the language chosen by Congress. By gutting Section 1983 through judicial fiat, the Supreme Court has let state and local governments and their agents violate our most cherished constitutional rights with impunity and left those victimized by abuse of power without any remedy.
In its cases interpreting—or rather rewriting—Section 1983, the Supreme Court has made the words “clearly established” and “policy” paramount. Let’s start with “clearly established.” Under the judicially created doctrine of qualified immunity, a suit against a government officer must be dismissed unless the state or local officer violated clearly established constitutional rights. In practice, unless the plaintiff can point to a prior precedent with essentially identical facts, courts insist that the law is not clearly established. That means that much of the time, constitutional violations go unremedied and justice is denied to those victimized by abuse of power. Moreover, because a court can dismiss a case without ruling on whether the official violated the plaintiff’s constitutional rights, the contours of constitutional rights may remain frozen in place, preventing rights from ever becoming clearly established and bolting the courthouse doors firmly shut to those aggrieved by official abuse of power.
The word “policy” is equally important to the story of how the Supreme Court has gutted Section 1983. Employers in the private sector are liable for the legal wrongs committed by their employees and agents, but the Supreme Court has refused to apply this longstanding principle of accountability to municipalities. Instead, local governments, with few exceptions, cannot be held liable for constitutional violations committed by their officers and agents within the scope of their duties. As a result, one of the most powerful tools for systemic reform—holding the government itself liable—is off the table.
In the 1978 case of Monell v. Department of Social Services, the Supreme Court held in essence that a city can only be held liable if a municipal “policy” caused the constitutional deprivation. (A municipal custom will count as well, but the court has basically ignored that category entirely.) The “policy” requirement for local governmental liability, like qualified immunity’s “clearly established” law requirement, is a dead end for accountability. The last time the Supreme Court held that a municipal “policy” caused a constitutional violation was in 1986, more than three decades ago.
Read the text of Section 1983. You will not find “clearly established” or “policy” in the language enacted into law by Congress. The Supreme Court simply made these words up to allow the government and its agents to evade accountability. As Justice John Paul Stevens put it in denouncing the policy requirement for governmental liability, it is “judicial legislation of the most blatant kind.”
By creating a nearly insurmountable barrier to suing the officer who violated someone’s constitutional rights and the government that made the officer’s abuse of power possible, the Supreme Court’s judicially-created doctrines operate synergistically to allow constitutional rights to be violated with impunity. Together they form a system of government unaccountability. As a result, the cycle of racialized policing and racial violence that took George Floyd’s life continues unchecked. And policing is just one small slice of the abuses Section 1983 concerns. By gutting Section 1983 in a myriad of ways, the court has sanctioned deprivations of free speech, allowed prosecutors to destroy innocent lives, and let abuse of power in prison flourish. Rather than giving full effect to a law designed to enforce the 14th Amendment, the Supreme Court has gutted it to protect governments and their agents and legitimize violations of constitutional rights.
Congress can change this. One year after the killing of George Floyd, Congress has the opportunity and the responsibility to begin repairing our system of constitutional accountability and to ensure that our most cherished constitutional guarantees do not exist merely on paper. The only way to fix the long line of immunity doctrines devised by the court is to end them and ensure that those victimized by the government can seek justice in the courts.