The statutory backdrop
Clark Neily describes Section 1983 as the operative language of the Enforcement Act of 1871, a post-Civil War statute enacted in response to abuses at the state level during Reconstruction and designed to prevent state and local officials from abusing the rights of Americans. He says the language is simple and has not changed for 150 years: any state actor — anyone employed by a state or local government — shall be liable to the person injured for the deprivation of any right. Up until 1967, he says, courts applied it as written, and if you violated somebody’s rights you were liable to them. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)
Pierson v. Ray and the good faith exception
Neily dates the first judicial move to 1967, in Pierson v. Ray. Government officials — police and a couple of judges — had enforced a racial segregation law that was later struck down, and argued that at the time they enforced it the law was on the books and valid, so they had no reason to know it would later be struck down. Neily says the Supreme Court agreed in essence that they acted in good faith and invented what was called a good faith exception. He calls the exception narrow, probably illegitimate, and unlikely to do much work given the unique circumstances, but characterizes it as the nose of the judicial camel under the proverbial tent. He notes that Congress could have written the exception into the text of the statute but did not, and that most conservatives consider that relevant: if the language is not there, it is not for the court to make it up. Judicial Round-Up with Clark Neily (2022)
Harlow and the “clearly established” requirement
Fifteen years later, Neily says, the Supreme Court made the really big move in Harlow v. Fitzgerald (1982), taking the narrow good faith concept and expanding it. In his account, the Court in effect rewrote the text of Section 1983: instead of being able to sue for the deprivation of any right, you can now only sue for the deprivation of a clearly established right. That language, he says, does not appear in the congressionally written statute. He describes the Court as acting in its infinite wisdom, apparently trying to be fair and to do better policy than Congress had, at least in its own minds. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
Neily says Harlow is where the doctrine went haywire and became the modern heart and soul of qualified immunity. To satisfy the clearly established requirement, he says, it is not enough to show your rights were violated; you must show that the particular way in which they were violated has already been the subject of a prior court case in the relevant jurisdiction. He offers the illustration that courts have said you cannot punch a guy on the left side of the face on a Tuesday when he is wearing handcuffs behind his back, and that if any one of those facts differs in the next case, the right is not clearly established and courts hand out free passes. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)
The first-case problem and the order of analysis
Bob Zadek frames the consequence: once the clearly established requirement is law, there will never be a first case to serve as the preexisting case, because the first case is the first case, which means the two words in effect neuter the statute. Neily answers that Zadek is not exaggerating by much and that the instinct is exactly right. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
Neily adds a procedural dimension. Up until the late 1990s, he says, the Supreme Court required lower courts to handle these cases in what he calls the intuitively correct manner: first ask whether there was a constitutional violation, and only if the answer was yes go on to ask whether the right was clearly established. The Supreme Court then allowed lower courts to approach the analysis in whatever order they wish, and many courts now skip the first step entirely — putting aside whether the officer acted unconstitutionally and holding that because there was no case on point the right cannot be clearly established. Neily’s conclusion is that the law stagnates and police can continue engaging in blatantly unconstitutional behavior over and over because the first case that would declare the conduct unconstitutional never arrives. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
Immunity as a free pass
In the 2022-07-08 episode Neily defines immunity generally as a kind of free pass, offering the analogy of a left-handed driver who lobbies for a law giving left-handed people immunity from tort cases arising out of their use of a motor vehicle, so that he can run into people without compensating them — not because it was not his fault, but simply because he is left-handed. He says that is a fair analogy to what happens when a police officer or other government official harms somebody through their own misconduct and gets sued. The right to sue a rights-violating government official in federal court, he says, was created by Congress about 150 years ago, but the judiciary invented the qualified immunity defense that lets an official say the particular way he injured you has not arisen in this jurisdiction yet, so he was not on notice, and therefore the suit is dismissed even though it may be meritorious. Neily calls this a get-out-of-responsibility free card for rights-violating government officials. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)
Across episodes: the same account, twice told
The same history is argued in the 2022-07-04 and 2022-07-08 episodes, both with Clark Neily, and the excerpts show no development or revision between them: the 1871 statute, Pierson v. Ray in 1967, and Harlow v. Fitzgerald in 1982 are presented in the same sequence and with the same characterization of the Court as having inserted language Congress never wrote. The 2020-06-10 episode, also with Neily, treats the same case but emphasizes the downstream mechanics — the first-case problem and the order-of-analysis change — rather than the legislative history. Bob Zadek’s contribution across the episodes is the framing of the statute as Congress doing its job and the courts acting alone to reverse its positive effects, and the first-case objection he puts to Neily. Judicial Round-Up with Clark Neily (2022) An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
What the sources do not cover
The excerpts do not state the facts of Harlow v. Fitzgerald itself, the parties involved, or the holding beyond the clearly established formulation Neily attributes to it. They do not identify the 1967 case’s citation, the jurisdiction, or the specific segregation law at issue beyond Neily’s description. The excerpts also break off at points — the 2022-07-04 episode ends with Bob Zadek’s name and no text under the heading on the rationale for immunity and the role of juries, and the 2022-07-08 episode ends the same way under the heading on the clearly established standard — so nothing from those segments is reported here.