Was Qualified Immunity A Scrivener’s Error?

Not that long ago, people wrote things by hand. I know, but the ability to do so was a skill of some value before computers and printers, and then who needs printers anyway, right? But in 1874, someone got the bright idea to compile all federal statutes into a code, and the duty to do so was given to the Reviser of the Federal Statutes.

Most critically, scholars and courts have overlooked the originally-enacted version of Section 1983, which contained a provision that specifically disapproved of any state law limitations on the new cause of action. For unknown reasons, that provision was not included by the Reviser of the Federal Statutes in the first compilation of federal law in 1874. This Article is the first to unearth the lost text of Section 1983 and demonstrate its implications.

Is it possible? Today, we pull up § 1983, secure in the knowledge that the text we’re seeing on the screen is the accurate text of the statute, and we have no reason to question it because it’s the same text it’s always been, we’ve always seen, on our screen and in the United States Code (whether or not annotated) books (physical items generally with white-ish pages with squiggly black lines) in our law libraries (rooms in law offices [places where lawyers went during the day when they weren’t in court] where law books were kept). But I digest.

At some point long ago, Congress enacted a statute that said something. We assume that what we now read in § 1983 is what Congress enacted, because the very notion that the law enacted before computers and the compilation of laws into a standardized set of books was different and somebody made an “oopsie” somewhere along the way would be unfathomable. And indeed, it would be, but that doesn’t mean it didn’t happen.

The version of Section 1983 one finds in the United States Code appears silent as to any common-law defenses:

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. . . .

But the Civil Rights Act of 1871 as enacted contained additional significant text, what I call the Notwithstanding Clause. In between the words “shall” and “be liable,” it contained the following clause: “any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding.”

This “notwithstanding clause” certainly appears to obviate any claim that unmentioned and contradictory common law defenses were specifically precluded. Whether there is any argument over the meaning of this clause is, for the moment, irrelevant since no court has ever considered it because it doesn’t appear in the code as it currently exists. How is that possible?

Notably, the distinction between Section 1983 as enacted and as reflected in the United States Code is not the product of any positive lawmaking. Rather, the version of the statute we find on the shelves of any law library is the product of a decision by the first Reviser of federal statutes to, for unclear reasons, remove the italicized language when the first edition of the Revised Statutes of the United States was published in 1874. Although the Revised Statutes were supplemented and corrected over time until the first United States Code was published in 1926, the Reviser’s error in omitting the Notwithstanding Clause from the reported version of the Civil Rights Act of 1871 was never corrected.

And therein lies the dilemma. Apparently, the Reviser made some mistakes here and there in consolidating the statutes at large into the Revised Statutes, which were corrected from time to time until the United States Code as we now know it was published. While these errors meant that the Revised Statutes were not conclusive, but merely prima facie evidence of the law, while the original statutes were definitive. But after corrections and modifications over the years, resulting in the creation of the United States Code, did we finally achieve a conclusive version of The Law?

There is no known reason why the Reviser left the “Notwithstanding Clause” out of § 1983, Maybe he didn’t like it. Maybe his son was a cop. Maybe he had one mead too many at lunch that day. Who knows? What we do know, now, is that this clause was in the original version of § 1983 enacted by Congress and signed by the president, and then disappeared and was never corrected, supplemented or modified by any official or branch of government thereafter.

There are certainly other arguments at play relevant to the existence and interpretation of qualified immunity under § 1983, so it would be a mistake to assume that the inclusion of this clause would instantaneously eliminate all the grief and impropriety QI has caused. And Cardozo prawf Alex Reinert’s remarkable law review article doesn’t quite address what we’re to do now with this “dereliction” of duty by the Reviser in 1871 that could have been, but never was, cured in the intervening years.

But the notion is stunning that this very significant issue that has caused some serious havoc in the law might never have existed but for some guy with a quill having inexplicably decided to blow it off, and either nobody noticing or everybody being okay with the error. Is this a law that isn’t the law anybody enacted? And if so, what other laws are floating around out there that aren’t quite what Congress enacted?

11 thoughts on “Was Qualified Immunity A Scrivener’s Error?

  1. B. McLeod

    When a clause falls in the Revisor’s Office, but no lawyer finds it, and then the courts make rulings contrary to its existence, it is gone.

    1. Charles

      As to modern laws, no. See footnote 243.

      U.S. Nat’l Bank of Oregon v. Indep. Insurance Agents of Am., Inc., 508 U.S. 439, 448
      (1993) (“Though the appearance of a provision in the current edition of the United States Code is ‘prima facie’ evidence that the provision has the force of law, it is the Statutes at Large that provides the legal evidence of laws.”) (cleaned up); United States v. Welden, 377 U.S. 95, 98 n.4 (1964) (“[T]he very meaning of prima facie is that the Code cannot prevail over the Statutes at Large when the two are inconsistent.”) (cleaned up); Stephan v. United States, 319 U.S. 423, 426 (1943) (“[T]he Code cannot prevail over the Statutes at Large when the two are inconsistent.”); see also Turner v. Glickman, 207 F.3d 419, 428 (7th Cir. 2000) (according no weight to placement of provision of Statutes at Large in criminal code because decision was made by reviser); Preston v. Heckler, 734 F.2d 1359, 1367–69 (9th Cir. 1984) (holding that Office of Law Revision Counsel erred in omitting as obsolete phrase “without regard to civil-service laws” from codification of Indian Preference Act).

      1. SHG Post author

        It would seem that anyone raising the original statutes at large text in their case would both resolve the question and prevail on the QI issue. Want to bet?

        1. Charles

          For a modern law, yes. For QI, SCOTUS is so fond of it that I think they would use the acceptance of the codification by Congress as their justification for keeping their QI-blinders on.

  2. Charles

    He really undercuts his argument when he points out that Congress actually adopted the codification as legal evidence of the laws of the U.S.:

    “The many errors contained in the first version of the Revised Statutes prompted consternation, but they nonetheless constitute ‘legal evidence’ of federal law. Congress made clear that subsequent versions of the Revised Statutes can be taken only as ‘prima facie’ evidence of the law, which can be rebutted by pointing to the originally-enacted version, unless Congress has specifically adopted the codification as part of the laws of the United States.”

    If a link can be permitted, [Ed. Note: It can. It isn’t.]

  3. Rengit

    Maybe the Congress that passed Section 1983, or more properly a subsequent Congress since the 1871-1872 Congress had ended, decided that they didn’t like the statute as they had drafted it, and instead of revising the statute, one of the Members went and suggested, off-the-record, that the Reviser omit the Notwithstanding language? It was the 19th Century, so the Congressmen of the time were not quite the sticklers for rigid parliamentary rules and formal legalism that we (mostly) are today, and favored a short-cut to the process of amending the statute; I can see this happening in a smoke-filled room, perhaps as part of some handshake agreement concerning the goings-on of Reconstruction.

  4. szr

    Well, there is a precedential opinion from the Court of Claims that addressed this issue, albiet not in the exact same context. In Flensburger Dampfercompagnie v. United States, 59 F.2d 464, 471 (Ct.Cl. 1932), the court held that statutes governing the duties on Prussian steamships were still in force, notwithstanding their accidental omission from the first consolidated U.S. Code in 1926.

    In my next QI case, I fully intend to argue that Flensburger Dampfercompagnie is relevant in the QI context to show QI is not available. After all, if the accidental omission of an entire statue in the Code did not defeat the enacted text, there are no principled arguments that a less severe omission does. In addition, the Flensburger court noted that the first adopted Code was prefaced with the following statement: “No new law is enacted and no law repealed. It is prima facie the law. It is presumed to be the law. The presumption is rebuttable by production of prior unrepealed Acts of Congress at variance with the Code.”

    It probably won’t work, but I think it is worth fighting this issue on appeal.

  5. Bryan Burroughs

    I realize this is a total dumbest question, but the multiple negatives floating around are making this hard to comprehend for my non-lawyer self. The additional text makes it say:
    “Shall be liable no matter what” OR
    “Shall be liable unless there’s something somewhere that says otherwise”.

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