CT Blue

This is interesting. It appears that there’s been some language missing from one of the most important Reconstruction statutes, 42 USC 1983, a statute that has been used to protect Americans from “deprivation of any rights, privileges or immunities secured by the Constitution of the United States”. There has been a lot of important litigation filed using this statute to protect or establish constitutional rights. It can be used to seek declaratory relief, such as a declaration that a given state policy is unconstitutional, or can be used to seek damages against a state actor that has deprived a person or persons of constitutional rights.

The Supreme Court has, however, carved out a massive loophole in the law, known as qualified immunity. Police, for instance, have taken advantage of the loophole for years. Basically, a plaintiff is thrown out of court unless he, she or they can prove that a court has already ruled that the constitutional violation in question is in fact a constitutional violation. So, unless you can find a previous case with an identical fact pattern in which another cop was allowed to escape liability,but the court found that the actions in question did indeed violate the constitution, you are entitled to no more than a judge telling the cop that he or she violated the plaintiff’s constitutional rights, but they are free to walk out of court without penalty, for how were they to know that the particular conduct in which they engaged, heinous as it may have been, violated the constitution.

Apparently, when the federal statutes were first compiled the compiler, whether intentionally or unintentionally, omitted some qualifying language, to the effect that a defendant was liable “any such law, statute, ordinance, regulation, custom or usage of the state to the contrary notwithstanding”.

The Supreme Court based its “qualified immunity” jurisprudence on its assertion that 1983 did not “displace immunities protecting officials that existed when the law was enacted”. In my own humble opinion that was a rather tortured reading of the bowdlerized version of the statute, but it doesn’t pass the sniff test if you consider the language of the statute as actually enacted. The court should certainly reconsider its qualified immunity decisions in light of this discovery.

The cops and similar constitution violaters need not fear however. I’m sure the Supreme Court will find a way to preserve their right to deprive us of our rights. My guess is they’ll give the job to Sammy Alito, who did such a good job of explaining that women have no right to abortion because a 17th century witch hunter said they didn’t.