Official Immunity at the Founding

Abstract

It is unclear to me that originalists’ qualified-immunity debate is framed in the correct terms. Or that it is framed in the correct time period. The current debate turns on whether officers enjoyed common-law tort immunities in 1871, when Congress passed the Enforcement Act that today appears in 42 U.S.C. § 1983. I wonder whether the more appropriate question is whether officers enjoyed constitutional immunities in 1791, when the People ratified the Bill of Rights. And I wonder whether historical pleading practices—embraced in English common law and by our first Congresses—mean the answer is “yes.” This Article challenges the premises of the current debate by considering the archetypal qualified-immunity case: a Fourth Amendment plaintiff’s claim against an officer who allegedly executed an “unreasonable” search or seizure. In 1791, the word “unreasonable” meant “against the reason of the common law.” And that common law brought with it a host of immunities for officers charged with searching and seizing. Thus, it is possible that a Fourth Amendment claim at the Founding required plaintiffs to show that an officer’s search or seizure was not only wrongful but so wrongful that the plaintiff could overcome the officer’s common-law immunities. If that is correct, then today’s originalist critics of qualified immunity must broaden their focus and shift their debate.