Prosecuting Immunity: Reconstruction Congress, Modern Courts, and a Purpose-based Approach to Prosecutorial Liability under Section 1983

I. Introduction

“I see no reason why any officer of government should be higher than the Constitution.”

— Tenney v. Brandhove, 341 U.S. 367, 383 (1951) (Douglas, J., dissenting).

After the Civil War, the victorious Union sought to broaden its federal powers and promote political equality by securing key freedoms for both Black and white Americans. The Thirteenth, Fourteenth, and Fifteenth Amendments ensconced these aims into the Constitution by respectively superseding state laws to abolish slavery, expanding the definition and rights of federal citizenship, and granting Black men the right to vote. Amidst this period of unparalleled sociopolitical change,¹ the Forty-Second Congress passed the Civil Rights Act of 1871. Its first section, codified under 42 U.S.C. § 1983, allows an individual to file a federal civil action against any person who acts under the pretense of law to violate their constitutional rights.² Therefore, § 1983 provides remedial relief to numerous injured parties, thus vindicating their rights. 

However, many harmed individuals lack access to § 1983 remedy. Beginning with Imbler v. Pachtman (1976),³ the Supreme Court’s doctrine of absolute prosecutorial immunity⁴ has effectively precluded individuals from seeking redress under § 1983 for injuries caused by prosecutors. Imbler extended the Court’s grants of absolute legislative and judicial immunity in Tenney v. Brandhove (1951)⁵ and Pierson v. Ray (1967)⁶ respectively, to shield those engaging in prosecutorial conduct from liability regardless of whether they violate the law or act maliciously. 

This thesis explores the disconnect between the Forty-Second Congress’ furnishing of a federal remedy and the modern Supreme Court’s denial of § 1983 relief. I examine the Court’s § 1983 immunity doctrine against legislative history to answer the following questions: Considering the Forty-Second Congress’ motivations for enacting the Civil Rights Act of 1871, to what extent did this Congress aim to provide official immunities? To what extent has the Supreme Court’s § 1983 prosecutorial immunity jurisprudence recognized or contravened its statutory purposes? I argue that the discordance between the Reconstruction-era protection of constitutional rights and the Court’s foreclosure of remedial relief stems from the Court’s improper historical analysis of the 1871 Act and its reliance on certain policy bases. I conclude that absolute prosecutorial immunity diverges from the 1871 Act’s purposes and Congress’ vision for official liabilities under the statute. 

Prosecutors are entrusted with vast power: they determine the offenses charged, seek pretrial detention, and substantially influence sentencing decisions.⁷ Lacking meaningful oversight, prosecutorial misconduct typically goes unnoticed. In addition to a “culture of underreporting” misconduct,⁸ prosecutors often have exclusive control over evidence of their wrongdoing, thereby impeding others from uncovering it.⁹ For instance, in a rare opinion, a federal judge condemned U.S. Attorneys for numerous Brady violations,¹⁰ including a conspiracy among at least fourteen prosecutors to obfuscate exonerating evidence from the defense and the Court.¹¹ However, Ali Sadr Hashemi Nejad, the man wrongfully convicted as a result of this improperly handled evidence, lacks any mechanism to vindicate his rights and obtain redress for his unjust imprisonment. Nejad is not alone; in addition to myriad cases wherein courts reject misconduct claims,¹² “prosecutorial misconduct was a factor in dismissed charges, reversed convictions, or reduced sentences in at least 2,012 cases” between 1970 and 2009.¹³ While civil actions provide individuals an opportunity to sue their wrongdoers, absolute prosecutorial immunity doctrine forecloses the possibility of suing prosecutors, thus depriving system-impacted individuals of such remedy. This denial is particularly striking given Reconstruction Congresses’ racially progressive aims and the disparate impact of prosecutorial misconduct on People of Color.¹⁴ Therefore, in addition to recent focus on challenging police officers’ qualified immunity in the wake of the Black Lives Matter Movement and subsequent calls for criminal-legal reforms,¹⁵ a reexamination of prosecutorial misconduct and absolute prosecutorial immunity is warranted. 

Though absent from § 1983, the Court read absolute prosecutorial immunity into the statute¹⁶ by purportedly relying on Anglo-American common law.¹⁷ The common law is a body of judicially created law, predominantly developed by state courts.¹⁸ Under common law, individuals may seek redress for torts––actions that lead to injury or harm––from their wrongdoers. However, some individuals or entities may be immune from suit. Immunity could be qualified, which precludes liability if “clearly established law” is not broken,¹⁹ or absolute, which bars liability regardless of intent or lawlessness.²⁰ Under eighteenth-century British common law, the Crown was absolutely immune from its torts and the torts of its employees.²¹ Though cognizant of English common law, the Framers of the American Constitution recognized that, because the United States derived its power from the people rather than the Crown, governmental officers had different obligations to the public.²² Peter Schuck writes that Article III of the U.S. Constitution, read literally, appears “to abrogate governmental immunity,” yet English common law immunities might have been implicitly incorporated.²³ Early American courts seemed to understand that governmental officers could be liable for their wrongdoing, as Chief Justice Marshall’s Little v. Barreme majority opinion “recognized the general principle of liability for domestic violations by civil officials.”²⁴ However, in the postwar era, some federal courts became more amiable toward official immunities; for example, Judge Learned Hand’s influential Gregoire v. Biddle decision prioritized official discretion despite the harm that officers may inflict upon civilians.²⁵

I argue that Reconstruction Congresses sought to eliminate common-law official immunities in their civil rights legislation, and the Court improperly implied such immunities from the statute to preclude redress. My work builds upon that of scholars who have undermined the Court’s reading of § 1983 by claiming that the Forty-Second Congress could not have recognized a unified common law on a given issue since the common law was fragmented throughout state and federal jurisdictions.²⁶ Indeed, Reconstruction-era legislation often targeted disparate state treatment of rights.²⁷ 

However, I find that the Court's § 1983 immunity jurisprudence has shifted to depend primarily upon a policy rationale that prioritizes governmental officials’ discretion over the protection of civil rights. Scholars have likewise claimed that the Court’s common law approach was supplanted by an analysis of modern tort principles.²⁸ For instance, Wells contends that the Court engages in policy-making by overruling common law when it conflicts with Justices’ desired result.²⁹ Unlike torts, constitutional torts serve to vindicate fundamental rights, hold governmental agents accountable for their harmful conduct, and address federalism concerns.³⁰ Notwithstanding alternative accountability mechanisms, the Court fails to appreciate the gravity of constitutional rights at stake in § 1983 claims. As scholars such as Eisenberg and Wells contend, despite policy arguments for integrating tort immunities into the statute, courts must consider whether the constitutional deprivations at issue may be “too important to go unremedied.”³¹ Specifically, Wells claims the common law “may be insufficiently accommodating, or even hostile to the plaintiff,” because protecting officials seems “more compelling” than compensating injuries vindicated in general tort claims.³² Yet, in § 1983 claims, the constitutional rights implicated tilt the “balance of interests” more strongly towards plaintiffs.³³

Given findings of identified nearly unfettered prosecutorial misconduct³⁴ and its deleterious effects on system-impacted individuals,³⁵ stakeholders in the criminal-legal system should further interrogate this denial of redress. Several scholars have criticized absolute prosecutorial immunity on legal, normative, and policy grounds. Caspar and Joukov assert that prosecutorial immunity conflicts with the Fourteenth Amendment’s Equal Protection Clause and would not survive rational basis review.³⁶ Others claim that governmental officers who deliberately violate constitutional rights should be penalized,³⁷ which absolute immunity precludes. Scholars also critique absolute immunity on policy bases, such as federal courts’ inconsistent application of the doctrine³⁸ and political and legal changes rendering the defense excessive.³⁹

Yet, a minority of scholars find absolute prosecutorial immunity warranted by policy considerations. Meier asserts that strictly defining the advocative conduct protected by absolute immunity would allow litigation of meritorious claims under qualified immunity, thus providing the redress envisioned by the Forty-Second Congress while adhering to Imbler’s concerns of prosecutorial independence.⁴⁰ Favoring Imbler’s policy bases over historical arguments, Kenner claims that prosecutorial functions require the strong defense of absolute immunity. Specifically, he asserts that prosecutors must act courageously and independently to pursue justice, which any liability impedes.⁴¹

Although scholars have made arguments to overturn absolute prosecutorial immunity, there has been a dearth of scholarship examining the Court’s § 1983 doctrine against its legislative history and purposes in the twenty-first century. Unlike recent prosecutorial immunity literature, which obscures the interests the statute was crafted to protect, my analysis of the statute’s history and purposes offers key context for its broad terms. Additionally, in referring to legislative history and recognizing congressional purposes, I emphasize the import of the separation of powers.⁴² Moreover, my consideration of the aims of legislators who were elected to represent the will of the people reifies our government’s democratic values.⁴³ 

I analyze the Court’s absolute prosecutorial immunity doctrine in the context of § 1983 legislative history and purposes to understand how the enacting Congress envisioned official immunities to be invoked. Thus, my examination of statutory history provides crucial context to scrutinize prosecutorial immunity, which in turn allows me to elucidate the ways in which the Court subverted legislative purposes. Cognizant of the limitations of the historical record, I argue that the incoherence between the Forty-Second Congress’ aims of securing and enforcing constitutional rights and the Court’s denial of § 1983 recourse stems from the Court’s improper statutory interpretation. Specifically, I claim that theCourt supplanted legislative purposes with common-law immunities and policy bases that favor official discretion over constitutional rights. In doing so, the Court explicated a deference to state officers and a potential distrust of system-impacted individuals. Ultimately, I conclude that absolute prosecutorial immunity perpetuates harm against system-impacted individuals and contravenes statutory purposes. Accordingly, this doctrine should be overturned. 

In Section II, I defend my use of legislative history and purposes. Subsequent sections consider the history of the 1871 Act. In Section III, I analyze congressional debates pertaining to the Civil Rights Act of 1866 and the Fourteenth Amendment, both notable predecessors to the 1871 Act, which I examine in Section IV. Here, I find that the Forty-Second Congress voided common-law immunities to forcefully safeguard constitutional rights. I examine the Court’s § 1983 immunity jurisprudence in Section V, ultimately claiming that the Court’s failure to thoughtfully engage with legislative history facilitated its granting of absolute prosecutorial immunity, which in turn contravenes statutory purposes.

II. Methodology: A Purpose-Based Approach to Legislative History

To examine the prosecutorial immunity doctrine under 42 U.S.C. § 1983, I analyze the history and purposes that motivated the enactment of the Civil Rights Act of 1871, focusing on the extent to which Congress envisioned official immunities to exist in Section One’s sanction and the Supreme Court’s reading of § 1983 in the mid-twentieth and early twenty-first centuries.

I began by reading Congressional Globe documents from debates over the Fourteenth Amendment, the Civil Rights Act of 1866, and the Civil Rights Act of 1871. An understanding of the 1866 Act and the Fourteenth Amendment is crucial to my inquiry, as the 1871 Act served to respectively amend and enforce this legislation. Specifically, I sought to understand the extent to which the Forty-Second Congress resolved to permit official immunities through evidence pertaining to the scope of protection conferred by this legislation, the actors for whom it provided sanctions, and references to common-law immunities. This analysis is contextualized by scholarship on Reconstruction-era societal, political, and legal trends to reveal the ways in which contemporaneous reforms manifested in the predecessors to § 1983.

My analysis is inspired by Harrington’s “purpose-based” approach to legislative history. I utilize legislative history to expound the animating purposes of § 1983 “that should guide the Court’s construction.”⁴⁴ Importantly, statutory “purpose” differs from statutory “intent”––the former refers to a legislature’s broad goals for a law; the latter refers to merely the textual meaning. This distinction can be exemplified by comparing the purpose-driven question: “What did he intend the enactment of the statute to achieve?” to the intent-driven question: “How did he intend these words to be understood?”⁴⁵ Employing this purpose-driven analysis, I search congressional records to understand whether Congress sought to vindicate constitutional rights at the potential expense of prosecutorial independence. Ultimately, I argue that Congress' explicit recognition of official liability and the broader principles animating the 1871 Act support prosecutorial liability. 

Scholars contest the value of legislative history as a tool for statutory construction. Famous for his textualist approach, Justice Antonin Scalia “object[ed] to the use of legislative history on principle,” because he denied legislative intent as a facet of the law.⁴⁶ Conversely, pragmatists, including Judge Richard Posner, view neither legislation nor its history as determinative; rather, they are “sources of information and limited constraints on” judicial decision-making.⁴⁷ Specific to § 1983, scholars have argued that legislative history is an insufficient interpretive guide,⁴⁸ as too much time has passed for the Court legitimately to ascertain congressional will⁴⁹ and because jurists may manipulate it to craft contradictory arguments based on their political ideologies.⁵⁰ Yet, these scholars appeal to statutory purposes, which they contend provide a legitimate and objective source of law for jurists to construe legislation.⁵¹ Although Coleman identifies statutory purposes by reading the Court’s § 1983 jurisprudence,⁵² Harrington contends that legislative history may illuminate such purposes.⁵³ Justice Stephen Breyer endorses this use of legislative history to clarify statutory purposes.⁵⁴ Incorporating statutory purposes, he claims, upholds the will of the people, allowing jurists to reify democratic principles as they solve contemporary problems.⁵⁵ I utilize this notion of legislative history to elucidate statutory purpose and enforce democratic objectives.

My approach builds on the work of legal scholars who have used congressional records to understand § 1983.⁵⁶ For example, Roessler’s examination of the Forty-Second Congress’ debates illuminates the purposes of the Fourteenth Amendment, thereby demonstrating legislative history’s utility in statutory interpretation.⁵⁷ Advocating a “modest” use of legislative history, Roessler argues that absolutely rejecting this device undermines the Court’s “institutional respect for the manner by which [Congress] interprets the Constitution and…legal texts.”⁵⁸ Considering separation of powers is significant to my analysis, as the Court often warns against “freewheeling policy choice[s]”⁵⁹ in § 1983 cases. Similar to Breyer’s concerns with upholding the will of the people via statutory interpretation, the Court has proclaimed its intention to interpret existing law, rather than supersede the legislature to create its own. Finally, Stack’s “enacted purposes canon,” which implores jurists to infer “the meaning of operative statutory provisions in light of [its] enacted purposes,” is facilitated by an analysis of legislative history, text, and structure.⁶⁰ Subsequently, I read congressional debates to understand legislators’ conception of § 1983 within the context of the broader 1871 Act and Reconstruction aims.

My evaluation of the Court’s § 1983 doctrine focuses on its correlations with and departures from statutory purposes. Tracing the doctrinal development of absolute immunity under § 1983, I begin with Tenney v. Brandhove and Pierson v. Ray, before focusing on prosecutorial immunity with Imbler v. Pachtman, Burns v. Reed, Buckley v. Fitzsimmons, Kalina v. Fletcher, and Van de Kamp v. Goldstein. Although scholars have noted the Court’s disregard of history, their critiques focus on its abandonment of common law tradition;⁶¹ my reading emphasizes the Court’s neglect of statutory history. Within this context, I consider the Court’s policy rationale, namely that burdensome litigation and liability may impede prosecutorial judgment, ultimately claiming that by prioritizing these interests over the vindication of rights, the Court contravenes § 1983’s purposes. 

III. Reconstruction Congress: Declaring and Securing Civil Rights

“[E]very right, when withheld, must have a remedy, and every injury its proper redress.”

— Marbury v. Madison, 5 U.S. 137, 153 (1803).

Reconstruction was contemporaneously viewed as a rare opportunity for profound sociopolitical change.⁶² Congressional Republicans secured civil rights for all people, regardless of race—an agenda facilitated by their concurrent assertion of federal supremacy over states.⁶³ This legislative effort began in earnest with the Thirteenth Amendment (1865), which superseded southern state laws to abolish slavery and confer new rights upon newly freed men.⁶⁴ To give meaning to the new status of former slaves,⁶⁵ Republicans passed the 1866 Act and the Fourteenth Amendment, which broadened the definition of citizenship, enumerated citizens’ rights, and granted the federal government power to vindicate these rights.⁶⁶ The Civil Rights Act of 1871 arose amidst this unprecedented context. 

This section traces congressional debates pertaining to the Civil Rights Act of 1866 and the Fourteenth Amendment, highlighting legislators’ concern with vindicating civil rights and their broad grants of federal power. Congress prioritized individual rights over the ostensible need to shield state officers from litigation, leading it to abolish common-law immunities. In the first subsection, I analyze the 1866 Act, establishing that Congress abrogated official immunities to furnish remedies and protect fundamental rights. Thereafter, my second subsection considers the Fourteenth Amendment’s first and sixth sections to convey Congress’ enduring aims of broadening civil rights and federal power.

A. The Civil Rights Act of 1866 

Congressional debates illuminate Republicans’ interest in vindicating civil rights, which was reflected in its revolutionary legislation. Although numerous Republicans believed the Thirteenth Amendment declared the rights of freedmen, Senator Trumbull noted, “[t]here is very little importance in the general declaration of abstract truths and principles…unless the persons who are to be affected by them have some means of availing themselves of their benefits.”⁶⁷ Section Two of the 1866 Act, codified under 18 U.S.C. § 242, bolstered the Thirteenth Amendment’s declaratory prose by giving injured parties a federal forum to criminally sanction those who violated their rights.⁶⁸ 

Manifest in Congress’ provision for redress was Republicans’ distrust of state officers. This wariness was warranted: state tribunals had “jurisdiction of every single question” the 1866 bill sought to bring to federal courts, yet they failed to provide recourse to Black Americans.⁶⁹ Republicans believed Black rights were vulnerable in many states because “[n]either the judge, nor the jury, nor the officer…[was] willing to execute the law,”⁷⁰ thus requiring federal intervention to secure civil rights. Republicans argued that since states could fail to safeguard federal rights and enact laws to “deprive citizens of these…inalienable rights,”⁷¹ a protective remedy was imperative.⁷² Specifically, Representative Shellabarger, who would go on to introduce the 1871 Act, claimed the 1866 Act was vital to ensure that state officers could not violate rights “with utter impunity.”⁷³ The Act’s remedial and penal provisions thus served as a bulwark against civil right infringements despite the potential disruptions that sanctions could pose to state officers.

Notably, legislators recognized and rejected judicial immunity by voting against Representative Miller’s proposed amendment. This measure would have added the following provision to Section Two: “judges of State courts who decide judicially, under the constitution and laws of the respective States in which they reside, shall be exempted from the penalties imposed by this section.”⁷⁴ As the final Act declared that “any person” who deprives, or causes a deprivation of, an individual’s civil rights shall be subject to penalty,⁷⁵ this failed amendment provides a clear, unsuccessful attempt to immunize judges. Thus, the Thirty-Ninth Congress knowingly repealed official immunities to maximize the availability for redress. 

Further acknowledgement of official liability can be found in President Johnson’s veto, which conveys a general understanding that the proposed legislation allowed the federal government to sanction state actors who violated individual rights. President Johnson wrote that Section Two assumed liability for legislative, judicial, and executive state officers.⁷⁶ Recalling common-law immunities, he found this section superfluous, as state tribunals could provide redress without holding legislators liable, infringing upon judicial independence, or impeding the work of state executives.⁷⁷ Despite Johnson’s attention to the public interests supposedly protected by official immunities, he did not find any statutory reason to allow them. Rather, he found it “clear…that the offenses and penalties provided in the second section are intended for a State judge who, in the clear exercise of his functions as a judge…shall decide contrary to Federal law.”⁷⁸ Although Senator Trumbull refuted the President’s statements pertaining to legislative liability, as legislators’ conduct was too attenuated to the constitutional deprivation,⁷⁹ he found it legitimate to sanction officials for their wrongdoing as long as it could be directly tied to the injury. Trumbull contended official immunity “is akin to the maxim…that the King can do no wrong. It places officials above the law.”⁸⁰ Consequently, he deemed punishing violators of federal law an unquestionable right of the United States, regardless of whether they serve their respective states.⁸¹ Senator Saulsbury responded to the veto, contending that the bill allowed the sanction of judges who violate one’s civil rights, even if such violations were pursued in the execution of State law. Yet, unlike Trumbull, Saulsbury argued the Act could penalize those who enact discriminatory legislation.⁸² Thus, Congress and the President recognized official liabilities under the 1866 Act. 

Congress recognized the profound shift in federalism manifest in the Act’s conferral of federal jurisdiction. Prior to the Civil War, citizens feared a powerful centralized government, and states primarily enforced their citizens’ rights. Yet, following the war and subsequent southern deprivations of freedmen’s civil rights, Republicans claimed the federal government should be the primary protector of individual rights. Consequently, Democrats argued that their Republican colleagues sought “to enter the States,” “regulate their police and municipal affairs,” and “destroy the independence of the State judiciary” with the threat of criminal sanction.⁸³ Though cognizant of this marked shift, many Republicans understood this legislation as an extension of the Thirteenth Amendment’s “measure of national redress” by providing “practical effect…and [federal] enforcement.”⁸⁴ The Act therefore affirmed existing law and fulfilled the federal government’s basic duty to its citizens. Citing early American history, wherein “Congress…provided for punishing officers who, under color of State law, violated the laws of the United States,”⁸⁵ Republicans argued that since states could not be trusted to safeguard rights, Congress must protect all citizens and their enjoyment of constitutional rights.⁸⁶ 

Congress recognized that broad interpretations were not only plausible, but probable, and Republicans endorsed such readings.⁸⁷ The 1866 bill was characterized as “general [in] scope,” and necessary amidst the context within which Congress legislated—a “civil and political revolution which has changed the fundamental principles of Government.”⁸⁸ The Thirty-Ninth Congress’ debates convey their concern with state violations of civil rights, leading Republicans to provide recourse for injured parties and sanction against wrongdoers. To do so, Congress knowingly employed sweeping prose to repeal official immunities. 

B. The Fourteenth Amendment

The debates over the Fourteenth Amendment further demonstrate Reconstruction-era Republicans’ desire to protect and vindicate the rights of citizens, particularly Black citizens. The Amendment’s first section provided all citizens with “the protecting shield of law”⁸⁹ even if Democrats regained federal power. This section was widely recognized to “embod[y] the principles of [the 1866 Act]”⁹⁰ and fulfill Congress’ duty to Black Americans by enacting political equality.⁹¹ Republicans claimed the federal government may “vindicate its authority and dignity” by safeguarding citizens’ rights⁹² and punishing those who violate such rights.⁹³ While under the Fifth Amendment no state ever had the right to abridge a citizen’s rights,⁹⁴ some southern states did so with impunity. Subsequently, deeming it essential that Congress have “the power to enforce this provision throughout the country and compel its observance,”⁹⁵ Republicans expressly prohibited state officers from violating fundamental rights.

Contemporaneous legislators understood the enormity of this Amendment’s assertion of federal power and extension of the definition and rights of citizenship. Congressmen recognized that the Founders never imagined the “unparalleled social revolution”⁹⁶ of the Civil War and Reconstruction and thus “made no [constitutional] provision for it.”⁹⁷ Nevertheless, such unprecedented sociopolitical changes necessitated this Amendment.⁹⁸ Republicans argued this “most unsafe period” required a sweeping measure to protect “[t]he prosperity of the citizen, his security and happiness.”⁹⁹ 

Moreover, Congress recognized that Section One’s sweeping terminology could be construed to broaden individual rights. Under this provision, all who were born or naturalized in the United States, except those not subject to American jurisdiction, are citizens with unspecified “privileges and immunities,” which may not be deprived by any individual or State.¹⁰⁰ Democrats noted the Amendment’s ambiguous language¹⁰¹ and feared it would provide Republicans a basis for further intervening in state affairs.¹⁰² Recognizing Reconstruction Congresses’ proclivity towards liberal constructions of ambiguous texts, one senator noted that while the Thirteenth Amendment’s enforcement clause was “thought to be harmless,” Republicans augmented its “force and scope of meaning” by broadening the definition and rights of citizenship in legislation such as the 1866 Act.¹⁰³ Opponents concluded that, if Congress similarly construed the present amendment, its enforcement section was “most dangerous,” as it provided a stronger basis for expanding federal power and political equality.¹⁰⁴ Congress acknowledged that the Amendment could be read to expand federal power or civil rights, and Republicans’ acceptance, and potential endorsement, of this broad construction is manifest in the Amendment’s passage.

The Thirty-Ninth Congress’ debates reveal a persistent concern that state officials were unwilling or unable to secure civil rights. Subsequently, Republicans resolved to vindicate civil rights in federal tribunals, sanction wrongdoers, and deter future violations. In doing so, Congress voided common-law official immunities. Similar concerns remained in 1871, motivating additional legislation.

IV. The Civil Rights Act of 1871

“[T]his bill throws open the doors of the United States courts to those whose rights under the Constitution are denied or impaired. It punishes…those who...defeat the securities… guarantied by the supreme law.”

– Representative Lowe, Cong. Globe, 42nd Cong., 1st Session, 394.

Despite Congress’ newly enacted assurances of individual rights,¹⁰⁵ an alarming level of violence in the South threatened Republicans’ civil rights agenda and concentration of federal power. This violence was both legal, through measures such as poll taxes, and extralegal, through terrorizing campaigns by white supremacists such as the Ku Klux Klan.¹⁰⁶ Escalating violence after the 1870 elections motivated Republicans to exert congressional power, yet when new legislation¹⁰⁷ proved insufficient, Congress enacted a broader measure: the Civil Rights Act of 1871. In this section, I analyze the extent to which official immunities were meant to be available under the 1871 Act, ultimately finding that Congress sought to sanction state officers to protect civil rights.

On March 28, 1871, Representative Shellabarger introduced H.R. No. 320 “to enforce the provisions of the fourteenth amendment to the Constitution of the United States, and for other purposes.”¹⁰⁸ Its proposed first section, later codified under 42 U.S.C. § 1983, read: 

“[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress, such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the act of the 9th of April, 1866, ‘An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication,’ and the other remedial laws of the United States which are in their nature applicable in such cases.”¹⁰⁹

Though Section One was the Act’s least controversial provision,¹¹⁰ this legislation considerably broadened federal power and the availability of redress for individuals deprived of their constitutional rights.

Republicans continued to deem southern states unwilling or unable to protect fundamental rights. In fact, conditions in the South appeared worse than in 1866. Evidence from Senate hearings revealed that extralegal violence was committed with impunity,¹¹¹ as the Klan’s reign of terror exploited weak southern institutions so that “the criminal goes free,” while “the persecuted citizen looks for redress in vain.”¹¹² As many state officers were in the Klan, supportive of its mission, or afraid of potential retaliation, state tribunals were “utterly powerless.”¹¹³ Consequently, the “administration of impartial justice through the courts” was virtually impossible,¹¹⁴ and scores of people were deprived of fundamental rights. These injustices motivated Congress to exert its power over the states, pursuant to the Fourteenth Amendment, to restore the administration of law and facilitate the vindication of civil rights by creating a federal forum for redress.¹¹⁵

Republicans were concerned about the vulnerability of fundamental rights amidst egregious violence and lawlessness in southern states. Appealing to “a fundamental principle of law that while the citizen owes allegiance to the Government, he has a right to expect and demand protection of life, person, and property,” Republicans found federal intervention into “notoriously powerless” state courts imperative.¹¹⁶ Subsequently, they sought to secure fundamental rights by providing a civil action to those whose rights are violated under color of law.¹¹⁷ Section One’s remedy was to be widely available to injured individuals; it was claimed to reach more tacit violations of personal rights, wherein facially just laws became tools of oppression by their subversion or non-enforcement.¹¹⁸ Further, numerous Republicans thought there to be no “limit whatsoever as to the amount in controversy” for which a person deprived of their constitutional rights could seek federal recourse.¹¹⁹ 

Remedial action—and the vindication of rights it provides—was deemed a critical component of American democracy. Without civil rights, it was asserted, “no republican government can exist,”¹²⁰ and without the proper administration of justice, the Constitution was feared to become “a myth,”¹²¹ thus warranting federal remedies when states failed to secure individual rights. Although concerns about the fortitude of the Union and the endurance of American democracy were salient after the Civil War, many understood this Act to ensure a permanent federal remedy,¹²² rather than act as a temporary rebuke against southern outrages. While some congressmen refuted the Act’s longevity, these sentiments were primarily expressed in regard to the legislation’s authorization of the President to militarily quash insurrections.¹²³ 

Ancillary to Congress’ remedial aim was a desire to sanction violators of such rights. The legislation was recognized to supplement under-utilized state penalties by “[imposing] new [federal] penalties and new remedies.”¹²⁴ These sanctions were also designed to serve a deterrent function,¹²⁵ as prior “immunity from punishment…emboldened [wrong-doers].”¹²⁶ The law incorporated punitive, deterrent, and remedial measures to protect and vindicate individual rights.

Aligning with its predecessors, the Civil Rights Act of 1871 features sweeping terminology. The Act broadly permits “any person” denied of “any rights, privileges, or immunities” under color of law to hold their wrongdoer liable.¹²⁷ Congress appeared cognizant of Section One’s general terms, the seemingly vast powers it conferred upon federal tribunals, and the potential for jurists to broadly interpret it.¹²⁸ As its opponents observed, the bill was “neither defined nor specific, thus leaving the widest latitude to those who may be called on to execute it.”¹²⁹ Similarly, it was claimed that, if read broadly, Section One could allow for extensive sanction against states if their laws were “construed to impair or infringe” individual rights.¹³⁰ Many Republicans endorsed such expansive interpretations; for instance, Representative Rainey, the first Black congressman,¹³¹ “desire[d] that so broad and liberal a construction be placed upon its provisions.”¹³² 

Although only Republicans seemed to welcome the sanction of state officers, members of both parties read the statue to permit such liabilities. Failing to find any official immunities in the statute, Democrats observed, “if the Legislature enacts a law, if the Governor enforces it, if the judge upon the bench renders a judgment, if the sheriff levy an execution, execute a writ, serve a summons, or make an arrest…they are liable,”¹³³ and that “there is no limitation” to the penalty provided under Section One.¹³⁴ 

Moreover, congressmen acknowledged common-law immunities and rejected their incorporation into the statute. Broadly considering the application of English common law, a Democratic senator declared, “there is no similarity between” the legal and sociopolitical contexts of England and the United States.¹³⁵ Another Democrat appears to have surveyed all Anglo-American common law to proclaim “no [American or British] judge or court has been held liable, civilly or criminally, for judicial acts, and the ministerial agents of the law have been covered by the same aegis of exemption. Willfulness and corruption in error alone created a liability.”¹³⁶ Although this reference to “willfulness and corruption” for liability describes a qualified immunity, the present statute was seen to obliterate all immunities to sanction anyone who acted under color of law to violate constitutional rights. Considering judicial liability pursuant to the 1866 Act, it was remarked that a few state judges were criminally sanctioned despite executing the law as they saw fit, thus provoking the question of whether the 1871 measure was “intended to perpetuate…[or] enlarge” this liability.¹³⁷ Republicans’ amplified concerns of southern violence signify that they intended broader liability.

Congressional debates therefore illuminate several animating purposes of the Civil Rights Act of 1871. Republican legislators sought to enforce the Fourteenth Amendment and safeguard constitutional rights by providing federal redress and sanction. They also recognized the potentially liberal constructions of Section One’s sweeping provisions, including the probable sanction of state officers who violate individual rights. Contextualized by Civil War amendments and the Civil Rights Act of 1866, it is clear that the 1871 Act conferred broad powers upon federal tribunals, potentially to the detriment of state officers. Therefore, Congress purposefully enacted official liabilities.

V. Statutory Contravention: Reading Immunities Into 42 U.S.C. § 1983

“We do not have a license to establish immunities from § 1983 actions in the interests of what we judge to be sound public policy.”

— Tower v. Glover, 467 U.S. 914, 923 (1984).

A. Interpreting 42 U.S.C. § 1983

Legislative history indicates that § 1983’s sweeping structure and language was primarily employed to permit an individual to file a civil action against any person who, under color of law, violated their constitutional rights. Such meaning can also be derived from the “fundamental canon of statutory construction” that, “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”¹³⁸ The ordinary meaning of “any person” in the twenty-first and nineteenth centuries¹³⁹ indicates that § 1983 was meant to apply to all who cause the violation of individual rights––including prosecutors.¹⁴⁰ Despite this unambiguous, non-absurd meaning for “any person,” Supreme Court Justices have argued that the statute’s sweeping terms require further analysis.¹⁴¹ Often, when statutory language is insufficient to ascertain a clear meaning, the Court “turn[s] to context and purpose to clarify ambiguity.”¹⁴² To do so, the Court typically looks to the Act’s “broader structure.”¹⁴³ Here too, the expansive nature of Reconstruction legislation supports prosecutorial liability under § 1983. In addition to statutory language and structure, legislative history can “provide a clear and helpful resolution.”¹⁴⁴ Fundamental methods of statutory interpretation therefore indicate that prosecutors can face liability under § 1983. 

This section will demonstrate that although principles of statutory construction seemingly guide the Court to interpret § 1983 by following its broad language and remedial purposes to allow the sanction of prosecutors, Justices instead deemed its language and history too ambiguous to overturn ostensibly well-settled law. Beginning with foundational immunity cases—Tenney and Pierson—I will show that rather than meaningfully looking to statutory history and purposes, the Court insisted that common-law immunities, as they existed in 1871, must be retained under § 1983. My examination of Imbler will establish that the Court’s approach was problematic in its premise and application. Perhaps recognizing its tenuous common law argument, the Court then began giving more credence to policy arguments, particularly after Monroe v. Pape (1961) broadened the types of claims that may be filed under § 1983.¹⁴⁵ Thus, my analysis will show that, in addition to straying further from statutory history, the Court’s doctrine became primarily policy-based in a way that opposed the primacy of individual rights imagined by the Forty-Second Congress, thereby subverting legislative purposes. 

B. Early Immunities: Tenney (1951) & Pierson (1967)

Despite Reconstruction Congresses’ revolutionary aims, late-nineteenth century courts’ failure to forcefully implement civil rights legislation ushered § 1983 into a prolonged period of dormancy. Scholars have posited that federal civil rights enforcement primarily diminished due to economic downturns of the 1870s, rather than “attitudes toward Reconstruction.”¹⁴⁶ Nonetheless, these “[c]hanging politics affected supposedly apolitical federal courts,”¹⁴⁷ which narrowly read the Fourteenth Amendment, thereby curtailing § 1983 utilization.¹⁴⁸ Several decades later, in the wake of the Civil Rights Movement, plaintiffs revived the statute. In this subsection, I examine the Court’s first considerations of official liability under § 1983 in Tenney and Pierson to reveal its neglect of legislative history and purposes.

In December 1950, as the Cold War heated up and McCarthyism intensified,¹⁴⁹ the Court was asked whether members of the California Fact-Finding Committee on Un-American Activities (the “Tenney Committee”) could be held liable for violating one’s constitutional rights.¹⁵⁰ Pursuant to § 1983, William Brandhove, an “admitted Communist,”¹⁵¹ sued members of the Tenney Committee after he was allegedly called before them to be “intimidate[d] and deter[red]” from exercising his First and Fourteenth Amendment rights, rather than any legitimate legislative purpose. Arguing for official immunity, briefs from the Tenney Committee and amici emphasize the import of this case’s Cold War context.¹⁵² Consequently, prevailing politics and concerns with protecting the State may have influenced the Court. 

Writing for the majority, Justice Frankfurter claimed § 1983’s language was too ambiguous for an exclusively textual decision. While he may have looked to the statute’s animating purposes to find Congress’ rejection of official immunities,¹⁵³ Frankfurter’s analysis was driven by his opinion that Congress must not have intended to eliminate long-standing legislative immunities. He asserted the bounds of § 1983 “were not spelled out in debate,” so Congress must not have sought to “impinge on a tradition so well grounded in history and reason by covert inclusion in [the statute’s] general language.”¹⁵⁴ Primarily drawing from laws dating back to sixteenth and seventeenth century England and the founding of the United States, Frankfurter expounded the tradition and import of legislative immunity, which he supported by claiming that any liability would hamper legislative independence and be detrimental to the public good.¹⁵⁵ Thus, Frankfurter found absolute immunity required by common law and the import of legislative discretion.¹⁵⁶ 

In dissent, Justice Douglas expressed concern for individuals who are constitutionally injured by state actors. Though not necessarily advocating for legislative liability in all circumstances, Douglas argued that if a legislator “departs so far from [his] domain to deprive a citizen” of their constitutional rights, he should be liable.¹⁵⁷ Moreover, Douglas asserted this ruling creates an unnecessary anomaly, as “[n]o other public official has complete immunity.”¹⁵⁸ Further diverging from the majority, Douglas grounded his claims in the purposes of the 1871 Act, namely “to secure federal rights against invasion by [state] officers.”¹⁵⁹ Rather than finding unbridled legislative independence necessary for public trust, Douglas echoed nineteenth century concerns of unsanctioned, undeterred wrongdoing to caution that absolute immunity precludes governmental accountability.¹⁶⁰

Ten years after Tenney, the Court radically expanded the scope of § 1983 in Monroe v. Pape. Unlike Tenney, which was entrenched in Cold War anti-communist sentiment, Monroe was contextualized by a period of heightened attention on racial discrimination.¹⁶¹ James Monroe, a Black man, and his family sued Chicago police officers under § 1983 after they broke into and ransacked the Monroe’s home, made the family stand naked during the search, and––lacking an arrest warrant––took Mr. Monroe to the police station.¹⁶² The Monroe Court was asked whether § 1983’s “under color of law” language included the unauthorized conduct of state officers. Writing for the majority, Justice Douglas held that § 1983 can be used against state officers regardless of whether they “act in accordance with their authority.”¹⁶³ This reading of “under color of law” aligned with the Court’s 18 U.S.C. § 242 jurisprudence,¹⁶⁴ yet unlike its criminal analog, Douglas contended that individuals can be civilly liable under § 1983 for the “natural consequences of [their] actions,” regardless of their mindset.¹⁶⁵

In 1967, the Pierson Court extended Tenney to read judicial liability into § 1983. This decision is particularly important following Monroe’s holding that § 1983 applies “to all constitutional claims,”¹⁶⁶ thus allowing for myriad new claims pursuant to the statute. Although Monroe increased injured parties’ access to redress, which aligned with statutory purposes, the increased volume of § 1983 claims led some jurists to believe overzealous plaintiffs exploited the statute “to bring the ‘wrong’ kind of case[s],”¹⁶⁷ thereby supporting policy arguments for absolute immunity. 

The petitioners in Pierson were Black and white “freedom rider” clergymen who were on a pilgrimage “to promote racial equality and integration” in 1961 when they were arrested for using segregated facilities in Jackson, Mississippi.¹⁶⁸ The clergymen waived a jury trial and were convicted by a municipal police justice; however, the case was dropped on appeal. Pursuant to § 1983, they sued the police officers who arrested them and the judge who oversaw their trial. Thus, Pierson asked the Court whether these officials could be liable under § 1983. Although the question of judicial liability under § 1983 was novel to the Supreme Court, some lower courts previously found judges liable under the statute.¹⁶⁹

The Court again emphasized a strong tradition of common-law judicial immunity to argue that it should be incorporated into § 1983. Drawing from Tenney, Chief Justice Warren contended judicial immunity was as established in common law as legislative immunity and subsequently read it into § 1983 by analogy.¹⁷⁰ Warren glossed over congressional debates to claim there was “no clear indication that Congress meant to abolish wholesale all common-law immunities.”¹⁷¹ Exhuming Justice Douglas’ statement from Monroe that § 1983 “should be read against the background of tort liability,”¹⁷² which was taken to mean that the statute did not require violations to be willful, Warren claimed that common-law immunities for one’s torts can be read into § 1983. Further relating to Tenney, Warren cited policy interests purportedly advanced by absolute judicial immunity. Since judicial deprivations of constitutional rights occur over the course of criminal proceedings, Warren contended the availability of error correction on appeal protects defendants and provides sufficient recourse. Moreover, Warren argued, if liable, the threat of burdensome litigation would frustrate judges’ “principled and fearless decision-making” upon which the public interest relies.¹⁷³ Therefore, Pierson reiterated Tenney’s assumption that the history of common-law immunities, and the policy interests which they protect, should guide the Court’s § 1983 decisions.

Dissenting yet again, Justice Douglas scrutinized statutory text and history more than the majority, leading to his concern that Pierson would adversely affect system-impacted individuals. Recognizing the Court’s circumvention of § 1983’s language, Douglas wrote, “every person” does not mean “every person except judges.”¹⁷⁴ Douglas referenced congressional debates to find a “clear” purpose to furnish a federal remedy amidst a “condition of lawlessness” in some states wherein “people were being denied their civil rights.”¹⁷⁵ Douglas claimed Congress understood “certain members of the judiciary [were] implicated in the state of affairs which the statute was intended to rectify,”¹⁷⁶ as judges could be “instruments of oppression,” leading him to contend that the recent “parade” of § 1983 litigation demonstrated that civil rights remained vulnerable.¹⁷⁷ Thus, § 1983 should be read in light of the enacting Congress’ concerns for restoring “the administration of justice,” securing Black rights, and reifying constitutional rule.¹⁷⁸ Subsequently refuting the majority’s policy bases for absolute judicial immunity, Douglas found the denial of recovery to an injured plaintiff atrocious, particularly when common-law immunities need not preclude a “liability which Congress has imposed upon…‘every person.’”¹⁷⁹ He concluded that Pierson, along with recent Court decisions, leaves scores of criminal defendants without redress—an outcome against the aims of the Forty-Second Congress.¹⁸⁰

C. Prosecutorial Immunity: Imbler v. Pachtman (1976)

Led by Chief Justice Warren Burger, the Court continued restricting § 1983 remedies by granting absolute immunity to prosecutors whose conduct is tethered to the judicial phrase of a criminal proceeding.¹⁸¹ Prosecutorial immunity, however, was just one piece of the Burger Court’s attack on “the rights of criminal defendants” and racial equality;¹⁸² it “curtail[ed] or entirely eliminate[d] the right of individuals to obtain redress against a variety of state and local officials for violation of their constitutional rights.”¹⁸³ Though in the wake of the Watergate scandal, the Court held that the President is not above the law,¹⁸⁴ two years later it essentially allowed prosecutors to violate individual rights with impunity. My analysis of Imbler v. Pachtman will reveal the ways in which the Court utilized Tenney and Pierson and certain policy bases to authorize nearly unfettered prosecutorial power and restrict remedial relief.

Primarily based upon eyewitness testimony and identification, and despite a corroborated alibi, Paul Imbler was convicted of first-degree murder and sentenced to death in 1961. Less than one month before Imbler’s execution date, District Attorney Pachtman, who oversaw Imbler’s trial, found evidence supporting Imbler’s alibi and undermining key witness testimony. Although Imbler unsuccessfully filed a habeas corpus petition with the California State Supreme Court in 1963, the following year, the same court overturned his sentence on unrelated grounds. At resentencing, the State stipulated a life sentence, leading Imbler to file a federal habeas corpus petition. Here, the District Court found errors of false or misleading testimony and suppression of evidence from Imbler’s trial.¹⁸⁵ Following ten years and arduous litigation that held his life in the balance, Imbler was released. Subsequently, he sued Pachtman and other state officers under § 1983, alleging they illegally conspired “to charge and convict him,” leading to his “loss of liberty and other grievous injury.”¹⁸⁶ Imbler’s case reached the Supreme Court approximately fifteen years after his arrest.

Extending earlier conferrals of legislative and judicial immunity, the Court granted prosecutors absolute immunity for conduct “intimately associated with the judicial phase of the criminal process.”¹⁸⁷ Similar to Tenney and Pierson, the Imbler Court relied on a tradition of prosecutorial immunity rather than legislative history. Powell cited Monroe to assert § 1983 “creates a species of tort liability” which, although facially admitting no immunities, the Court reads to exempt state officers from liability if they had common-law immunity in 1871.¹⁸⁸ Powell’s common law analysis began with Griffith v. Slinkard, a state court case from a quarter-century after § 1983 was enacted, wherein a malicious prosecution tort action was dismissed against a local prosecutor.¹⁸⁹ Powell then cited a twentieth-century federal case, Yaselli v. Goff,¹⁹⁰ which involved the same tort against a federal prosecutor. Although Powell referenced the Yaselli Court’s review of the development of common-law immunities, he crucially omitted that its analysis of prosecutorial immunity began with Griffith. Rather than finding an established tradition of prosecutorial immunity, the Second Circuit focused on judicial immunity and analogized it to prosecutors––a tactic Powell employed to grant prosecutors absolute immunity under § 1983.

Straying further from history, Powell dedicated more than one entire section to public policy considerations.¹⁹¹ He argued that the rationale undergirding common-law immunity for judges and grand jurors applied to prosecutors; this rationale included a fear that “unfounded litigation” would lead officers to divert attention from their official duties and that a threat of liability would improperly influence official decision-making.¹⁹² Powell asserted prosecutorial liability would lead to burgeoning federal caseloads premised upon meritless claims,¹⁹³ which he argued would impede the vast prosecutorial independence ostensibly vital to the criminal-legal system. He therefore deemed absolute immunity necessary to prevent disruptions to prosecutorial function and the larger system within which it operates. Nevertheless, acknowledging the constitutional rights at stake in § 1983 claims, Powell cited the availability of criminal penalty under 18 U.S.C. § 242 and the “unique…amenability” of prosecutors to professional disciplinary sanction to claim that “genuinely” wronged individuals will have recourse against “malicious or dishonest” prosecutors.¹⁹⁴ 

In concurrence, Justice White, joined by Justices Brennan and Marshall, noted the Court’s subversion of § 1983 and denial of recourse to injured parties. White presciently feared the majority opinion may be improperly extended to absolve any prosecutor of liability, regardless of how egregious their misconduct, thereby going beyond the bounds of prosecutors’ common-law immunity and what “is necessary to protect the judicial process.”¹⁹⁵ Such broad constructions of Imbler, he contended, could “injure the judicial process and…interfere with Congress’ purpose in enacting 42 U.S.C. § 1983, without any support in statutory language or history.”¹⁹⁶ White found the statutory “language itself makes clear” its “central purpose…to ‘give a remedy to parties deprived of constitutional rights, privileges, and immunities by an Official’s abuse of his position.’”¹⁹⁷ Thus, granting a class of state officers absolute immunity undermines the statute’s intended remedy.¹⁹⁸ Further citing legislative history, White noted the deterrent effect of liability, which he deemed “precisely the proposition upon which § 1983 was enacted.”¹⁹⁹ Consequently, the integrity of judicial proceedings would actually be bolstered by making “prosecutors who engage in unconstitutional conduct” liable.²⁰⁰ 

D. Inverted Purposes & Imbler’s Progeny

Lacking clear guidance from the Supreme Court, lower courts struggled to uniformly implement Imbler’s broad grant of absolute immunity to conduct “intimately associated with the judicial phase of criminal procedure.”²⁰¹ Eventually, the Supreme Court began to distinguish advocative functions from investigative and administrative functions using the so-called functional approach. Under this analysis, the Court claims to consider the conduct, not the actor, to determine whether qualified or absolute immunity is applicable. Notably, under the functional approach, a tradition of common-law immunity, rather than an understanding of § 1983’s history and purposes, is a necessary condition for absolute immunity.²⁰² Upon finding such tradition for the function at issue, the Court determines whether public policy warrants absolute immunity. Yet, the Court has come to rely on policy grounds more than any form of history, often finding the interests of prosecutorial independence paramount to the protection of individual rights.²⁰³ In this subsection, I examine the Court’s policy rationale to demonstrate its subversion of statutory purposes.

The Court’s emphasis on policy rationale can be found in Burns v. Reed, as it began delineating between advocatory and investigatory conduct.²⁰⁴ Burns asked whether a prosecutor should receive absolute immunity for furnishing legal advice to police officers and participating in a probable cause hearing. Cathy Burns was charged with the attempted murder of her sons after she allegedly made a confession while police hypnotized her. However, Burns’s motion to suppress this evidence was granted, and prosecutor Reed dropped all charges. Unlike the furnishing of legal advice, which the Court found insufficiently based in common law or policy, the prosecutor’s conduct at the probable cause hearing²⁰⁵ was deemed sufficiently tied to the judicial phase of criminal procedure and recognized by common-law defamation immunity. The Court determined § 1983 was not meant to abolish defamation immunity, which could be stretched from applying to statements made before juries to include statements made at probable cause hearings. Crucially, Justice White noted, without such immunity, “vexatious litigation” would frustrate prosecutorial independence.²⁰⁶ Therefore, absolute immunity was deemed necessary, under common law, and proper to protect the unfettered exercise of prosecutorial discretion.

Two years later, the Buckley Court augmented Imbler’s functional approach to make the determination of probable cause another necessary condition for absolute immunity.²⁰⁷ The conduct at issue was a prosecutor’s fabrication of evidence during a preliminary investigation and false statements they made at a press conference, both of which received qualified immunity. Recalling that administrative and investigatory actions unrelated “to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings are not entitled to immunity,”²⁰⁸ Justice Stevens found that prosecutors are not “advocate[s] before [they have] probable cause.”²⁰⁹ He observed that absolute immunity for fabricating evidence prior to the establishment of probable cause could lead prosecutors to “shield [their] investigative work…merely because” they could “retrospectively [describe it] as ‘preparation’ for a possible trial.”²¹⁰ However, Buckley did not entirely solve the problem, as Justice Kennedy wrote in dissent. Kennedy took issue with Buckley’s bright-line rule because it denies “parity in treatment among state actors,” which he claimed to be “one of unquestioned goals” of the Court’s § 1983 jurisprudence. ²¹¹ He criticized Buckley because it leaves prosecutors who decline to initiate a prosecution open to liability, as they lack the probable cause necessary for absolute immunity. Thus, Buckley represents the Court’s shift to prioritizing policy over common-law immunities.

Four years later, the Court was asked “whether a prosecutor may be liable for conduct in obtaining an arrest warrant.”²¹² On the basis of inaccurate statements, personally certified by prosecutor Kalina, Rodney Fletcher was erroneously charged, arrested, and detained for burgling a school; one month later, Kalina dropped all charges. Although Imbler dictated that only conduct “intimately associated with the judicial phase of the criminal process” may receive absolute immunity,²¹³ and Malley v. Briggs held that seeking an arrest warrant was too far removed from this judicial phase to receive absolute immunity,²¹⁴ Justice Stevens found it “quite clear” that preparing and filing documents for an arrest warrant were advocative functions entitled to absolute immunity.²¹⁵ Kalina thus served to “protect the prosecutor’s role as an advocate”²¹⁶ and allow prosecutors to exert their discretion without the impediment of potential sanction. 

Though the Court maintained that absolute immunity would only be conferred upon advocatory conduct that hews closely to the judicial phase of criminal procedure, the Van de Kamp Court unanimously granted absolute immunity to administrative actions.²¹⁷ In 1980, significantly owing to the false testimony of a jailhouse informant, Thomas Goldstein was convicted of murder. While imprisoned in 1998, Goldstein successfully filed a federal habeas corpus action, alleging members of the District Attorney’s Office knowingly relied on untrustworthy testimony. Upon his release, Goldstein sued Van de Kamp, the former Los Angeles County district attorney and chief deputy district attorney, on the basis of his failure to train and supervise prosecutors and his failure to establish an information system. The Court unanimously deemed this conduct “a certain kind of administrative obligation… directly connected with the conduct of a trial,” as it “necessarily require[d] legal knowledge.”²¹⁸ Conveying the import of protecting all legal discretion, Justice Breyer argued the “most important” consideration made in finding for Van de Kamp was “the ease with which a plaintiff could restyle a complaint charging a trial failure” to make it “a complaint charging a failure of training or supervision.”²¹⁹ The Court thus prioritized “the fair efficient functioning of a prosecutorial office”²²⁰ over the vindication of individual rights. 

From tracing the doctrine of absolute prosecutorial immunity, we see that although the Court’s own principles of statutory construction seemingly required it to follow the plain meaning of § 1983, using statutory purposes to provide context as needed, it circumvented legislative text and history to enact a doctrine contrary to the aims of the Forty-Second Congress. This subversion of statutory purposes began in Tenney, as the Court’s negligible attempt to ascertain historical context led it to conclude Congress could not have implicitly abrogated long-standing legislative immunity. Relying on Tenney’s reasoning, the Pierson Court analogized legislative immunity to judges. By supplanting legislative history with that of common law, the Court contorted § 1983’s purposes to enact its own policy, which prioritized the discretion and protection of state officers, despite their potentially egregious conduct, over the vindication of constitutional rights. Continuing to deviate from the Forty-Second Congress, the Court asserted that unbridled official discretion was critical to upholding public trust in the criminal-legal system. The Court further justified absolute immunity by finding alternative modes of recourse, such as appeal motions, sufficient. Notwithstanding the infrequency of reversals on error,²²¹ this rationale trivializes the magnitude of the constitutional rights Congress resolved to vindicate. 

The Imbler Court strayed further from statutory purposes by granting prosecutors absolute immunity. Subverting the text of Monroe, the Court grafted common-law immunities onto § 1983; yet in enacting absolute prosecutorial immunity, the Court diverged from common law history and its own jurisprudence by erroneously declaring that public prosecutors—who had not existed in 1871²²²—received absolute immunity when the Forty-Second Congress legislated. In addition to historical arguments, the Court sought to support its holding by analogizing prosecutorial immunity to judicial immunity, which itself was conferred by analogy in Pierson. Perhaps recognizing the futility of an argument purely based on common-law immunities, the Court began to defer to policy arguments. Justice Powell argued that absent absolute immunity, burdensome § 1983 litigation would frustrate prosecutorial discretion, subsequently compromising public trust in the criminal-legal system; however, legislative history reveals that the Forty-Second Congress deemed the protection of individual rights, not official discretion, paramount to ensuring public trust in American governance. The Court therefore abandoned the history of § 1983, which expressly provides its purposeful design to furnish federal remedies to injured parties. 

The Court’s subsequent prosecutorial immunity decisions primarily focused on protecting state officers. In deferring to state officials, the Court more explicitly elucidated its distrust of plaintiffs by warning that without absolute prosecutorial immunity, system-impacted individuals would abuse the federal court system to seek vengeance against prosecutors. Guided by this distrust of system-impacted individuals and the notion that unfettered prosecutorial independence ameliorated public trust, the Court developed a historically and functionally unsound doctrine. By supplanting the statute’s history and remedial purposes with its policy preferences, the Court reached illogical outcomes by its own standards, such as the finding that administrative conduct becomes advocative when legal knowledge is even remotely required.²²³ In addition to denying system-impacted individuals meaningful recourse, the Court’s doctrine fails to deter prosecutorial misconduct. For instance, between Kalina (1997) and Van de Kamp (2009), Californian jurists identified prosecutorial misconduct in an average of one appellate case per week—a statistic that “undoubtedly understates” the true incidence of misconduct––yet over 77% of convictions were upheld.²²⁴ Compounding this issue is the fact that about 97% of felony cases result in guilty pleas, leaving many unable to challenge misconduct on appeal.²²⁵ Therefore, prosecutorial immunity is conceptually unsound and tangibly harmful.

VI. Conclusion

“There is a certain irony in this lack of discipline of those charged with enforcing the law: prosecutors escape discipline while non-prosecutors are vigorously disciplined.”

—Margaret Z. Johns, “Unsupportable and Unjustified: A Critique of Absolute Immunity,” 519.

The Imbler Court fallaciously interpreted 42 U.S.C. § 1983 to retain an unsubstantiated tradition of prosecutorial immunity. The Court’s reading of immunities into the statute was itself erroneous, as legislative history and broad goals of Reconstruction evince congressional Republicans’ desire to radically expand federal power and civil rights, notwithstanding liability’s potential impediment to official function. Therefore, by relying on the common law and policy concerns, wherein prosecutorial discretion and federal dockets superseded constitutional rights, the Court needlessly precluded the vindication of rights and contravened § 1983’s purposes. To conclude this thesis, I will demonstrate the inadequacy of alternatives to § 1983 and briefly outline the prospects for reforming prosecutorial immunity. 

A. Insufficient Alternatives to § 1983 

The Court’s restriction of § 1983 remedies is particularly egregious when contextualized by broader denials of recourse to system-impacted individuals. The Court precluded opportunities for redress by holding that a single Brady violation cannot create liability for a prosecutorial office’s failure to train.²²⁶ Moreover, Justice Powell’s claim that criminal and professional sanctions provide sufficient recourse to injured parties has proven false. Although prosecutors could be found liable under 18 U.S.C. § 242 for intentionally violating one’s constitutional rights, such sanctions are rarely invoked²²⁷ and are therefore ineffective.²²⁸ Professional disciplinary sanctions also offer negligible recourse. Although the American Bar Association Model Rules of Professional Conduct include a rule exclusively for prosecutorial conduct, “[p]rosecutors are disciplined less frequently than other practicing attorneys.”²²⁹ Even if strengthened, these alternatives lack the remedial element of civil actions. 

Consequently, scholars have proposed reforms to curb prosecutorial misconduct and provide meaningful recourse. One popular recommendation is state or municipality indemnification statutes to compensate individuals who were wrongly convicted. The Court may be more amenable to this proposal since indemnification “shifts the costs of misconduct from officials to the government as a whole,” thus retaining prosecutorial independence while providing monetary redress.²³⁰ However, shifting liability away from officers dulls the mechanism’s deterrent effect.²³¹ Scholars also advocate for state rules governing prosecutorial conduct and criminal procedure to mitigate misconduct and wrongful convictions.²³² Yet, this proposal lacks the remedial element of § 1983. Moreover, both reforms would be enacted and enforced by states, thus failing to provide the federal recourse imagined by the Forty-Second Congress. 

Finally, scholars have asserted that prosecutors should receive only qualified immunity under § 1983. This argument may be persuasive to the Court, as it declared: “qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties.”²³³ Moreover, to address concerns of frivolous litigation, scholars contend that recent qualified immunity holdings²³⁴ facilitate courts’ ability to dismiss suits claims against prosecutors, thereby rendering absolute immunity unnecessary.²³⁵ Yet, in seeking to align with the Court’s policy rationale, this suggestion continues to prioritize prosecutorial independence over individual rights. Further, as scholars including William Baude argue, qualified immunity is legally, conceptually, and historically unfounded, as it did not exist in common law, it is normatively improper to grant government officials this defense, and the enacting Congress did not mean for qualified immunity to be implied from the statute.²³⁶ To sufficiently remedy, deter, and sanction prosecutorial misconduct, the Court should overturn its prosecutorial immunity doctrine and instead recognize the extent to which the Forty-Second Congress envisioned prosecutors to be held liable.

B. The Potential for Reform 

Despite the compelling need to reform prosecutorial immunity doctrine, neither the Supreme Court nor Congress appear poised to act. In 2010, the Court almost decided whether a prosecutor was liable under § 1983 for framing an individual prior to indicting them, yet the case was settled before the Court issued an opinion.²³⁷ While during oral arguments some Justices noted the “perverse incentives” of absolute immunity and “prosecutors’ lack of accountability,” suggesting a more favorable outcome, others echoed policy concerns delineated in Imbler and its progeny, including prosecutorial independence and prosecutors’ frequent engagement in investigatory work.²³⁸ This term, however, the Court may decide whether a plaintiff can challenge a pretrial detention decision based upon fabricated evidence, yet supported by independent probable cause, under § 1983.²³⁹ Though I do not seek to speculate as to the Court’s ruling, its Van de Kamp holding and record on qualified immunity²⁴⁰ suggest it is an unlikely source of reform.

While some members of Congress have introduced legislation to address § 1983 immunities, these proposals concern qualified immunity standards and primarily pertain to the conduct of police officers, rather than that of prosecutors and their grant of absolute immunity. Moreover, these proposals appear destined to fail if Democrats lack Republican support and the filibuster remains.²⁴¹ Congress therefore seems unlikely to even consider overturning prosecutorial immunity, particularly amidst Democrats’ position of tenuous political power. Though not certain, further scholarship and activism focused on prosecutorial immunity could pressure legislators to reassert their power and provide for the vindication of constitutional rights under § 1983, as intended by the Forty-Second Congress.

1.    David Achtenberg, “Immunity Under 42 U.S.C. § 1983: Interpretive Approach and the Search for the Legislative Will,” Northwestern University Law Review 86, no. 3 (1992): 497-549. \See David Achtenberg, “A ‘Milder Measure of Villainy’: The Unknown History of 42 U.S.C. § 1983 and the Meaning of ‘Under Color of’ Law,’” Utah Law Review 1999, no. 1 (1999), 59. Similar recourse was extended to individuals injured by federal officers in Bivens v. Six Unnamed Agents, 403 U.S. 388 (1967).
2.     See David Achtenberg, “A ‘Milder Measure of Villainy’: The Unknown History of 42 U.S.C. § 1983 and the Meaning of ‘Under Color of’ Law,’” Utah Law Review 1999, no. 1 (1999), 59. Similar recourse was extended to individuals injured by federal officers in Bivens v. Six Unnamed Agents, 403 U.S. 388 (1967). 
3.    424 U.S. 409 (1976). 
4.    See infra pg. 4.  
5.    341 U.S. 367 (1951). 
6.    386 U.S. 547 (1967). 
7.    Inmates of Attica Correctional Facility v. Rockefeller, 477 F. 2d 375 (2d. Cir. 1973); Bordenkircher v. Hayes, 435 U.S. 918 (1978). 
8.    Innocence Project, “Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson,” Innocence Project (March 29, 2016). 
9.    Emma Zack, “Why Holding Prosecutors Accountable is So Difficult,” Innocence Project (April 23, 2020).  10.    Brady violations occur when a prosecutor fails to disclose evidence favorable to the accused. Brady v. Maryland, 373 U.S. 83 (1963). 
11.    United States v. Nejad, 2020 U.S. Dist. LEXIS 169686 (S.D.N.Y., September 16, 2020). 
12.    Kathleen M. Ridolfi and Maurice Possley, “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009,” Northern California Innocence Project Publications, Book 2 (2010), 2. In over 3,000 of 4,000 cases studied, judges rejected allegations of prosecutorial misconduct. 
13.    John F. Terzano, Joyce A. McGee, and Alanna D. Holt, “Improving Prosecutorial Accountability: A Policy Review,” The Justice Project (2009), 2. 
14.    Samuel R. Gross, Maurice J. Possley, Kaitlin Jackson Roll, and Klara Huber Stephens, “Government Misconduct and Convicting the Innocent: The Role of Prosecutors, Police, and Other Law Enforcement,” National Registry of Exonerations (September 1, 2020). 
15.    Hailey Fuchs, “Qualified Immunity Protection for Police Emerges as Flash Point Amid Protests,” New York Times (June 23, 2020).  16.    In 1996, the statute was revised to exempt judges from liability. 42 U.S.C. § 1983.  17.    See Theodore Eisenberg, “Section 1983: Doctrinal Foundations and an Empirical Study,” Cornell Law Review 67, no. 3 (March 1982), 492; Mark Niles, “A New Balance of Evils: Prosecutorial Misconduct, Iqbal, and the End of Absolute Immunity,” Stanford Journal of Civil Rights & Civil Liberties 13, no. 2 (2017), 160. 
18.    “Common Law,” Legal Information Institute, Cornell Law School (last modified May 2020).  
19.    Harlow v. Fitzgerald, 457 U.S. 800 (1982). 
20.    Bidish Sarma, “Private: After 40 Years, Is It Time to Reconsider Absolute Immunity for Prosecutors?” American Constitution Society (July 19, 2016). 
21.    Peter H. Schuck, Suing Government: Citizen Remedies for Official Wrongs. Chicago, IL: Univ. of Chicago Press (1983), 34. 
22.    Ibid., 35. 
23.    Ibid., 35-36.  
24.    William Baude, “Is Qualified Immunity Unlawful?” University of Chicago Public Law & Legal Theory Paper Series, no. 610 (January 2017), 13. See also Little v. Barreme, 6 U.S. 170 (1804). 
25.    177 F.2d 579, 581 (2d Cir. 1949). (“In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.”) 
26.    Jennifer A. Coleman, “42 U.S.C. § 1988: A Congressionally Mandated Approach to the Construction of Section 1983,” Indiana Law Review 19, no. 3 (1986), 676; Jack M. Beermann, “A Critical Approach to Section 1983 with Special Attention to Sources of Law,” Stanford Law Review 42, no. 1 (November 1989), 71. 
27.    Coleman, 677. 
28.    Coleman, 691. 
29.    Michael Wells, “Constitutional Remedies, Section 1983, and the Common Law,” Mississippi Law Journal 68, no. 1 (Fall 1998), 180. 
30.    Sheldon Nahmod, Michael Wells, and Thomas Eaton. Constitutional Torts, 3rd ed. Matthew Bender & Company, Inc. (2010), 1. Tort law is generally seen as a way “to generate… the cost-justified—level of accidents and safety.” Richard Posner, “A Theory of Negligence,” Journal of Legal Studies 1, no. 29 (1972), 33. Constitutional torts are civil actions filed to remedy constitutional violations, such as those involved in § 1983 cases; they must be evaluated through a “constitutional interpretation,” emphasizing compensation for plaintiffs and deterrence. Sheldon Nahmod, “Section 1983 and the ‘Background’ of Tort Liability,” Indiana Law Journal 50, no. 1 (Fall 1974), 13. 
31.    Eisenberg, 495.  
32.    Wells, 189. 
33.    Ibid., 198. 
34.    Ridolfi & Possley; and David Keenan, Deborah J. Cooper, David Lebowitz, and Tamar Lerer. “Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect against Prosecutorial Misconduct,” Yale Legal Journal Forum 121 (2011-12): 203-65.  
35.    See Terzano et al.  
36.    Samantha M. Caspar & Artem M. Joukov, “The Case for Abolishing Absolute Prosecutorial Immunity on Equal Protection Grounds,” Hofstra Law Review 49 (2021), 354.  
37.    “Liability of Judicial Officers under Section 1983,” The Yale Law Journal 79, no. 2 (December 1969), 332. 
38.    Margaret Z. Johns, “Unsupportable and Unjustified: A Critique of Absolute Immunity,” Fordham Law Review 80, no. 2 (November 2011): 527-35.  
39.    Malia N. Brink. “A Pendulum Swung Too Far: Why the Supreme Court Must Place Limits on Prosecutorial Immunity,” Charleston Law Review 4, no. 1 (Fall 2009): 1-36.  
40.    Anthony Meier, “Prosecutorial Immunity: Can 1983 Provide an Effective Deterrent to Prosecutorial Misconduct,” Arizona State Law Journal 30, no. 4 (Winter 1998), 1182.  
41.    James P. Kenner, “Prosecutorial Immunity: Removal of the Shield Destroys the Effectiveness of the Sword,” Washburn Law Journal 33, no. 2 (Spring 1994), 427-28.  
42.    Achtenberg, “Immunity,” 511.
43.    See Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution, United Kingdom: Knopf Doubleday Publishing Group (2007). 
44.    Eric A. Harrington, “Judicial Misuse of History and § 1983: Toward. Purpose-Based Approach,” Texas Law Review 85, no. 4 (March 2007), 1019. 
45.    Gerald C. MacCallum, Jr., “Legislative Intent,” The Yale Law Journal 75 (1966), 757. See King v. Burwell, 576 U.S. 473 (2015), where the Court used the structure and purposes of the Patient Protection and Affordable Care Act to understand the availability of federal income tax credits under the Act.  
46.    Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law. Princeton, NJ: Princeton Univ. Press (1997), 31. 
47.    Richard A. Posner, “Pragmatic Adjudication,” Cardozo Law Review 18, no. 1 (1996-97), 5. 
48.    Coleman, 680. 
49.    Eisenberg, 487.  
50.    Wells, 55-56, 88. 
51.    Harrington, 1018. 
52.    Coleman, 680-83. 
53.    Harrington, 1018. (“Legislative history…can help determine the purpose that the legislation fosters.”) 
54.    Stephen Breyer, “On the Uses of Legislative History in Interpreting Statutes,” Southern California Law Review 65, no. 2 (January 1992), 848. 
55.    Breyer, Active Liberty. 
56.    Cass R. Sunstein, “Section 1983 and Private Enforcement of Federal Law,” The University of Chicago Law Review 49, no. 2 (Spring 1982), 435; Achtenberg, “Immunity,” 511; William Hawkins, “Section 1983: A Basic Understanding,” American Journal of Trial Advocacy 12, no. 2 (Fall 1988): 355-66; Douglas J. Kellerman, “Civil Rights—Immunity—Prosecutor’s Immunity from Civil Rights Liability Under 1983 of the Civil Rights Act of 1871: A Revaluation,” Wayne Law Review 13, no. 2 (Winter 1967), 385.  
57.    Michael F. Roessler, “Mistaking Doubts and Qualms for Constitutional Law: Against the Rejection of Legislative History as a Tool of Legal Interpretation,” Southwestern Law Review 39, no. 1 (2009): 103-154.  
58.    Ibid., 144. 
59.    Malley v. Briggs, 475 U.S. 335, 342 (1986). 
60.    Kevin M. Stack, “The Enacted Purposes Canon,” Iowa Law Review 105, no. 1 (2019), 318.  
61.    See e.g., Coleman, Section C.2; Beermann, Section C.1-2. 
62.    Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877, New York, NY: Harper & Row (1988), 230. 
63.    Ibid., 231-32; Robert J. Kaczorowski, “Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction,” New York University Law Review 61 (1986), 871.  
65.    Congressional Globe, 39th Cong., 1st Session, 575 (1866). 
64.    According to some Republicans. 
66.    Richard A. Matasar, “Personal Immunities Under Section 1983: The Limits of the Court’s History,” Arkansas Law Review 40, no. 4 (1987), 781; Eric Foner, “The Supreme Court and the History of Reconstruction—And Vice Versa,” Columbia Law Review 112, no. 7 (November 2012), 1586. 
67.    Cong. Globe, 39th Cong, 1st Session, 474. 
68.    Ibid., Ch. 31, § 2.  
69.    Cong. Globe, 39th Cong,1st Session, 601. 
70.    Ibid., 602-603. 
71.    Ibid., 1833. 
72.    Ibid., 1294. 
73.    Ibid. 
74.    Ibid., 1156 (emphasis added). 
75.    Ibid., Ch. 31, § 2.  
76.    Cong. Globe, 39th Cong, 1st Session, 1680. 
77.    Ibid., 1858. 
78.    Ibid., 1680 (emphasis added).  
79.    Ibid., 1758. Trumbull deemed the causal chain between the legislators’ enactment of a law and the injurious enforcement of such a law to be too tenuous to warrant liability. 
80.    Ibid., 1809. 
81.    Ibid., 1759. 
82.    Ibid., 1809. 
83.    Ibid., 1154. 
84.    Ibid., 1151. 
85.    Ibid.  
86.    Ibid., 1118. 
87.    Ibid., 1264 (“The broad and comprehensive justice of this measure…is one of the first efforts … to give practical effect to the principles of the Declaration of Independence.”) Interpretive concerns were premised upon the rights secured by the Act, not those who may be sanctioned. 
88.    Cong. Globe, 42nd Cong., 1st Session, 570 (1871). 
89.    Cong. Globe, 39th Cong., 1st Session, 2462. 
90.    Ibid., 2467. 
91.    Ibid., 2534. 
92.    Ibid., 2542. 
93.    Ibid., 2534 
94.    “No person shall be…deprived of life, liberty, or property, without due process of law.” U.S. Const., amend. V. The Fourteenth Amendment alters the language such that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” U.S. Const., amend. XIV, sec. 1. 
95.    Cong. Globe, 39th Cong., 1st Session, 2961. 
96.    Ibid., 2964. 
97.    Ibid., 2962. 
98.    Ibid., 2534. 
99.    Ibid., 2938. Many Republicans wanted suffrage expanded to Black Americans and denied to ex-confederates. Ibid., 3148. 
100.    U.S. Const. amend. XIV, sec. 1. 
101.    Ibid., 2467. 
102.    Ibid., 2530. 
103.    Ibid., 2940. 
104.    Ibid. 
105.    The Fifteenth Amendment was ratified in 1870. 
106.    See Foner, Reconstruction, 422-23; and Cong. Globe, 42nd Cong., 1st Session, Appendix, 78. 
107.    These earlier acts primarily pertained to suffrage rights. Cong. Globe, 41st Cong., 2nd Session, Ch. 114, § 3-7 (1870); Cong. Globe, 41st Cong., 3rd Session, Ch. 99, § 1-2 (1871).  
108.    Cong. Globe, 42nd Cong., 1st Session, 317. 
109.    Ibid. 
110.    Ibid., Ch. 22, §§ 2-6. These sections provided criminal sanction against those who conspire to violate an individual’s civil rights and authorization for the President to intervene military or suspend habeas corpus in states that violated the Fourteenth Amendment.  
111.    Cong. Globe, 42nd Cong., 1st Session, 320. See Foner, Reconstruction, 425. 
112.    Cong. Globe, 42nd Cong., 1st Session, 459. 
113.    Ibid., 653. 
114.    Ibid., 312. 
115.    Ibid., 335. (Representative Hoar observed the “clear case of denial of government” in some states.); Ibid., 653 (“If the State courts had proven themselves competent to suppress the local disorders, or to maintain law and order, we should not have been called upon…But they have not done so.”); Ibid., 397 (Representative Rice claimed that the bill was “founded on mistrust of the State government”); and Ibid., Appendix, 92. (Senator Pool asked, “whether the reconstruction policy of Congress…shall be carried into practical effect, or whether it shall practically be nullified by local violence.”) 
116.    Ibid., 322. 
117.    Ibid., 807; Appendix, 262. 
118.    Ibid., 153. 
119.    Ibid., 216.  
120.    Ibid., 334. 
121.    Ibid., 512. 
122.    Ibid., 368. 
123.    Ibid., 335. 
124.    Ibid., 373. 
125.    Ibid., 665. 
126.    Ibid., 666. 
127.    Ibid., Ch. 22, § 1 (emphasis added). 
128.    Unlike later sections, Section One remained virtually untouched. See e.g., supra pg. 16, no. 87. 
129.    Cong. Globe, 42nd Cong., 1st Session, 322. 
130.    Ibid., 373. 
131.    “RAINEY, Joseph Hayne,” History, Art & Archives, United States House of Representatives (Accessed March 1, 2022).  
132.    Cong. Globe, 42nd Cong., 1st Session, 395. 
133.    Ibid., 366 (emphasis added). 
134.    Ibid., Appendix, 217. 
135.    Ibid., 765. 
136.    Ibid., 366. Representative Arthur noted the threat of liability could frustrate state officers’ independence and discretion (Ibid., 367).  
137.    Ibid., 217. 
138.    Perrin v. United States, 444 U.S. 37, 42 (1979). See King v. Burwell, 576 U.S. 473, 474 (2015) (“If the statutory language is plain, the Court must enforce it according to its terms.”); and Larry M. Eig, “Statutory Interpretation: General Principles and Recent Trends,” Congressional Research Service (September 24, 2014) (“[A]ll approaches start (if not necessarily end) with the language and structure of the statute.”) 
139.    The Revised Statutes of 1878 changed “any person” to “every person.” 
140.    “any.” Merriam-Webster.com. 2022 (Defined as “one or some indiscriminately of whatever kind”); and “person.” This same meaning was ascribed to the phrase “any person,” in 1866 and 1871. See supra, Sections III-IV. 
141.    Maine v. Thiboutot, 448 U.S. 1, 13 (1980). (“[S]tatutes are to be interpreted ‘not only by a consideration of the words themselves, but … the context, the purposes of the law, and the circumstances under which the words were employed.’”) (citations omitted) (quoting District of Columbia v. Carter, 409 U.S. 418, 420 (1973)). 
142.    Breyer, “On the Uses,” 848.  
143.    576 U.S. at 473 (quoting United Sav. Assn. of Tex. V. Timbers of Inwood Forest Associates, Ltd., 44 U.S. 365, 371). Reconstruction Congresses recognized this interpretive device; see Cong. Globe, 39th Cong., 1st Session, 596 (quoting 3 Md. 535, 554 (1797)). 
144.    Breyer, “On the Uses,” 854. 
145.    365 U.S. 167 (1961). 
146.    William J. Stuntz, The Collapse of American Criminal Justice, Cambridge, MA: Harvard Univ. Press (2011), 111. 
147.    Ibid., 112. 
148.    Slaughter-House Cases, 83 U.S. 36 (1873); United States v. Cruikshank, 92 U.S. 542 (1875); The Civil Rights Cases, 109 U.S. 3 (1883).  
149.    Sheldon Nahmod, “Section 1983 is Born: The Interlocking Supreme Court Stories of Tenney and Monroe,” Lewis & Clark Law Review 17, no. 4 (2013), 1024.  
150.    341 U.S. at 369. 
151.    Nahmod, “Section 1983 is Born,” 1026. 
152.    Ibid., 1031. 
153.    Frankfurter chooses to rely on the recent holdings from Screws v. United States, 325 U.S. 91 (1945) and United States v. Williams, 341 U.S. 70 (1951) rather than truly engaging in § 1983 construction. 
154.    341 U.S. at 376. 
155.    Id. at 377. 
156.    Id. at 374-75. 
157.    Id. at 382 (Douglas, J., dissenting). 
158.    Id. 
159.    Id. at 383 (Douglas, J., dissenting). 
160.    Id. 
161.    Nahmod, “Section 1983 is Born,” 1022. 
162.    365 U.S. at 169. 
163.    Id. at 172.  
164.    United States v. Classic, 313 U.S. 299 (1941); Screws v. United States, 325 U.S. 91 (1945). 
165.    365 U.S. at 187. 
166.    Eisenberg, 504.  
167.    Ibid., 536. 
168.    386 U.S. at 552. 
169.    Picking v. Pennsylvania R. Co., 151 F.2d 240 (3d Cir. 1945); Burt v. City of New York, 156 F.2d 791 (2d Cir. 1946); McShane v. Moldovan, 172 F.2d 1019 (6th Cir. 1949). However, there was a circuit split. See Bottone v. Lindsley, 170 F.2d 705 (10th Cir. 1948). 
170.    The use of analogy may itself be problematic; see Hawkins, 324. 
171.    386 U.S. at 554. 
172.    365 U.S. at 187.  
173.    386 U.S. at 554. 
174.    Id. at 559 (Douglas, J. dissenting) (emphasis added). 
175.    Id.  
176.    Id. 
177.    Id. at 561 (Douglas, J., dissenting). 
178.    Id. at 560 (Douglas, J., dissenting). 
179.    Id. at 563-64 (Douglas, J., dissenting). 
180.    See City of Greenwood v. Peacock, 384 U.S. 808 (1967) (Holding that defendants cannot remove their cases to federal courts to prevent state deprivations of their civil rights).  
181.    424 U.S. 409.  
182.    Michael J. Graetz & Linda Greenhouse, The Burger Court and the Rise of the Judicial Right. New York, NY: Simon & Schuster (2017), 4. 
183.    Alan B. Morrison, “Rights Without Remedies: The Burger Court Takes the Federal Courts of the Business of Protecting Federal Rights,” Rutgers Law Review 30 (1997), 849.  
184.    United States v. Nixon, 418 U.S. 683 (1974). 
185.    424 U.S. at 414. 
186.    Id. at 416. 
187.    Id. at 430. 
188.    Id. at 421. 
189.    146 Ind. 117 (1896). 
190.    12 F.2d 396 (2d Cir. 1926). See also 1927 U.S. LEXIS 324 (1927) (per curiam). 
191.    424 U.S. at 422-29. 
192.    Id. at 423. Powell finds these dangers particularly relevant for prosecutors because they handle so many cases, claiming that absolute immunity prevents them from expending significant energy to essentially retry cases. Id. at 425-26.  
193.    These fears are misplaced. See Eisenberg. 
194.    424 U.S. at 429. 
195.    Id. at 433 (White, J., concurring). 
196.    Id. (emphasis added). 
197.    Id. (quoting 365 U.S. 167, 172 (1961)). 
198.    Id. at 434 (White, J., concurring). 
199.    Id. at 441-42 (White, J., concurring). 
200.    Id. at 442 (White, J., concurring). 
201.    Id. at 430. 
202.    500 U.S. 478, 497 (1991) (Scalia, J., concurring in part and dissenting in part). 
203.    Achtenberg, “Immunity,” 529. 
204.    500 U.S. 497 (1991). 
205.    At the hearing, Reed asked the police officers about Burns’ testimony but failed to inform the judge that the officers obtained a ‘confession’ by hypnotizing the accused. Id. at 482. 
206.    Id. at 492. 
207.    509 U.S. 259, 275, no. 5 (1993).  
208.    Id. at 273. 
209.    Id. at 274. 
210.    Id. at 276. 
211.    Id. at 288 (Kennedy, J., dissenting in part). 
212.    522 U.S. 118, 123 (1997). 
213.    424 U.S. at 430. 
214.    475 U.S. at 342-43.  
215.    522 U.S. at 129. Kalina’s certification of documents received qualified immunity because it was deemed the conduct of a witness; see Id. at 135 (Scalia, J., concurring). 
216.    Id. at 127. 
217.    555 U.S. 335 (2009). 
218.    Id. at 344. 
219.    Id. at 347. 
220.    Id. at 348. 
221.    “Harmless error” dictates that trial results can stand unless the error substantially bore on the trial’s outcome, thus creating a high bar for appellees. Daniel Epps, “Harmless Errors and Substantial Rights,” Harvard Law Review 131, no. 8 (June 2018), 2120. 
222.    522 U.S. at 124, no. 11. 
223.    555 U.S. at 344. See Kenner, 420. (“Application of the ‘functional approach’ to the diverse role of the prosecutor can lead to confusing, and often inconsistent results.”); and 500 U.S. at 495 (“Almost any action by a prosecutor…could be said to be in some way related to the ultimate decision whether to prosecute.”) 
224.    Ridolfi & Possley, 2. 
225.    Ibid., 3.  
226.    Connick v. Thompson, 563 U.S. 51 (2011). 
227.    This low usage has primarily been attributed to professional norms and the Court’s high evidentiary standards. See Keenan et al., 218; Bidish Sarma, “Using Deterrence Theory to Promote Prosecutorial Accountability,” Lewis & Clark Law Review 21, no. 3 (2017), 607.  
228.    Keenan et al., 217. (The first verdict––an acquittal––in a felony prosecution of a prosecutor occurred in 1999.) 
229.    Sarma, “Using Deterrence,” 610. The rule itself is vague and limited in scope, and similar to § 242, professional norms and procedural hurdles preclude its use. See Ibid., 615; Keenan et al., 227. 
230.    Schuck, 82. 
231.    Joanna C. Schwartz, “Police Indemnification,” New York University Law Review 89, no. 3 (June 2014), 939-40; and John P. Taddei, “Beyond Absolute Immunity: Alternative Protections for Prosecutors Against Ultimate Liability for § 1983 Suits,” Northwestern University Law Review 106, no. 4 (2012), 1883. 
232.    Paulina DeAraujo, “Free of Charge: An Analysis of Absolute Immunity in Prosecutorial Misconduct,” Rutgers Law Record 47 (2019-20), 168.  
233.    500 U.S. at 486-87. 
234.    Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic v. Twombly, 550 U.S. 554 (2007). 
235.    See Niles. 
236.    See Baude, 
237.    Pottawattamie County v. McGhee, 558 U.S. 1103 (2010). 
238.    Ephraim Unell, “A Right Not to Be Framed: Preserving Civil Liability of Prosecutors in the Face of Absolute Immunity,” Georgetown Journal of Legal Ethics 23 (2010), 958. 
239.    City of New York v. Frost, No. 20-1788, cert pending, 980 F.3d 231 (U.S., June 21, 2021).  
240.    See supra, 43 no. 234, Ashcroft v. al-Kidd, 563 U.S. 731 (2011); Hernandez v. Mesa, 140 S. Ct. 735 (2020); Plumhoff v. Rickard, 572 U.S. 765 (2014); Mullenix v. Luna, 577 U.S. 7 (2015); City of Escondido v. Emmons, 139 S. Ct. 500 (2019). See also Rehberg v. Paulk, 566 U.S. 356 (2012). 
241.    Republican Senator Braun introduced the Reforming Qualified Immunity Act, but most Republicans seem against reforming qualified immunity. Manu Raju and Jessica Dean, “Changes to Qualified Immunity in Policing Deal Face Senate GOP Resistance,” CNN, Cable News Network (May 26, 2021).