Angel Sanchez, a formerly incarcerated criminal justice activist, asserts “the prison system is like a social cancer: we should fight to eradicate it but never stop treating those affected by it.” In other words, Sanchez argues that the ultimate objective is prison abolition, but in the meantime, activists should work to mitigate the harm perpetuated by the system. Until prison and police abolition are fully implemented, incarcerated individuals and people of color will continue to experience severe and unjust violence perpetrated by state agents. Therefore, it is essential that those who choose to vindicate their constitutional rights through the civil legal system can do so. Passed in 1871 as part of the Ku Klux Klan Act, Congress drafted 42 U.S.C § 1983 to allow individuals to sue state actors that violated their constitutional rights. One barrier to this civil lawsuit is the doctrine of “qualified immunity.” When a defendant government official asserts qualified immunity as a defense, courts are required to halt analysis on the merits of the case and apply the qualified immunity test: whether there was a constitutional violation and whether the law was clearly established at the time of the violation. Courts are not required to rule on a potential constitutional violation before dismissing a case if the law was not clearly established. Also, if the legal standard was not clearly established, a police officer is immune from liability for his or her acts, even if the court finds there was a constitutional violation. Courts have interpreted the “clearly established” prong to require the plaintiffs to provide precedent, from the Supreme Court or the same circuit, with substantially similar facts where the conduct was also found to be unconstitutional. Therefore, if the plaintiff’s lawyer cannot produce a nearly identical case, the § 1983 claim will be dismissed.

Many scholars and activists have called to abolish qualified immunity. My paper contributes to this literature by connecting the constitutional and policy arguments to abolitionist constitutionalism philosophy. Part I provides an overview of “abolition constitutionalism” and the connection between historical abolitionist movements and the modern movements to abolish qualified immunity. Part II will discuss the modalities the Supreme Court can utilize to abolish qualified immunity, namely the history and purpose of the Ku Klux Klan Act, the flawed foundational precedents, the precedential impact of Tanvir, the text of § 1983, the inaccurate policy justifications behind its inception, and the structural commitment to Congress to decide if policy justifications require immunity. Part III encourages lower courts to act as “movement judges” and first, produce a favorable outcome denying qualified immunity by applying Taylor and McCoy broadly to mean that a previous case with similar facts is not required to satisfy the “clearly established” prong and second, denounce structures that uphold white supremacy, like prisons and policing.

Read More