He’s going to show you the bricks. He’ll show you they got straight sides. He’ll show you how they got the right shape. He’ll show them to you in a very special way, so that they appear to have everything a brick should have. But there’s one thing he’s not gonna show you. When you look at the bricks from the right angle, they’re as thin as this playing card. His whole case is an illusion, a magic trick.1

In 1871, the Forty-Second Congress, on the heels of sociopolitical Reconstruction-era upheaval, passed the Civil Rights Act.2 Oft referred to as the Ku Klux Klan Act of 1871 or the Enforcement Act of 1871, this statute, purported to do exactly that: enforce the Fourteenth Amendment, defeat the Ku Klux Klan, and expand civil rights in the South, protecting both recently enslaved Blacks and white Republican voters who were being disenfranchised.3 Section 1 of this Act lives on today as the highly litigated 42 U.S.C. § 1983. In 1994, one in ten civil district court filings were section 1983 claims.4 More recently, from 2023 to 2024, over 17,000 “other civil rights cases” were filed, of which section 1983 presumably constituted a significant portion.5 Section 1983, today, states, in relevant part:

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, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

This statute is so popular, especially amongst incarcerated persons, because it provides one of the only avenues to seek redress against state officials for alleged violations of Constitutional rights.6 Whilst the language of “[e]very person” appears to clearly encompass all state officials, the Supreme Court has increasingly narrowly tailored this language over the years: (1) Tenney v. Brandhove7 in 1951 which granted absolute immunity for state legislative officials; (2) Pierson v. Ray8 in 1967 which granted qualified immunity for state police officers and absolute immunity for state judges; (3) Scheuer v. Rhodes9 in 1974 which granted qualified immunity for some state executive officials; (4) Wood v. Strickland10 in 1975 which granted qualified immunity for school officials; (5) and Imbler v. Pachtman11 in 1976 which granted absolute immunity for state prosecutors.

This grant of absolute immunity for state prosecutors was a usurpation of legislative powers. This was in direct contradiction with the text and intent of the Civil Rights Act of 1871. It assumed that Congress should have explicitly derogated the common law—with derogation in this context being unheard of—and that Congress should have derogated a common law that simply did not exist. The Supreme Court demonstrated impartiality by upending Congress’s check on state officials—not because it was unconstitutional—but because it did not comply with their policy views, resulting in a lack of accountability for prosecutors.

Part I will analyze how the Supreme Court effectively legislated absolute prosecutorial immunity by (A) looking at the Court’s decision in Imbler to use (B) the derogation canon to ignore (C) Congress’s textual intent of overruling the common law, (D) the sociopolitical climate evident in the legislative history, (E) and the legal framework at the time. This allowed (F) the Court to supplant their version of the common law aligned with their policy goals. Next, in Part II, this paper will denounce the separation of powers issues inherent in (A) removing an important check placed by Congress on state officials that (B) aligned with the late 1800s populist movement and (C) resulted in modern-day rampant prosecutorial misconduct.

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