The Fourteenth Amendment was added to the Constitution against the backdrop of police and mob violence directed against African Americans. The authors of the Fourteenth Amendment detailed the need for universal guarantees of liberty and equality, and they laid out, often in gruesome detail, a campaign of unending violence against African Americans perpetrated by police and white mobs. The Fourteenth Amendment was designed to put an end to such police violence and killings. The Amendment’s authors recognized that African Americans could not take their place as equal citizens in our nation if the states and their officers were free to brutalize them. The Reconstruction-era Congress wrote 42 U.S.C. § 1983 to enforce the Fourteenth Amendment’s promise of liberty and equality by holding police and other state actors accountable for violating the constitutional rights of the public they swear to protect. The text of Section 1983 is as clear as can be: it makes officials acting under color of state law categorically liable for constitutional violations and provides no immunities from suit. Rather than heeding this text, the Supreme Court has interpreted Section 1983 to give officers sweeping immunity from suit, even when they engage in brutal conduct, disproportionately harming the marginalized communities the Fourteenth Amendment was meant to protect.

In 1967, the U.S. Supreme Court created from whole cloth the legal doctrine of qualified immunity, which shields government officials from civil liability when they violate people’s constitutional rights in all but the rarest cases, creating a sweeping defense that does not exist in the text of our laws. Under the doctrine of qualified immunity, as it currently exists, government officials cannot be held personally liable unless they have violated a constitutional right that was “clearly established” at the time of the violation. In practice, it has become very difficult to meet this standard, because plaintiffs are often required to identify prior case law involving nearly identical fact patterns. Even in cases in which the defendant’s actions were obviously wrong, the plaintiff is often denied relief and the government official escapes accountability.

The judge-made qualified immunity doctrine leaves a gaping hole in federal civil rights laws, frustrating congressional intent to hold government actors accountable for unconstitutional acts. As a result, instead of a system of remedies for misconduct, we have a system that breeds impunity. We cannot hope to rein in abuses of power if courts give the police and other state actors a free pass when they violate an individual’s rights.