Judge Don Willett of the Fifth Circuit has long been one of the foremost judicial critics of qualified immunity and a leading voice urging the Supreme Court to reconsider this unjust and unlawful doctrine. In 2018, he wrote a separate opinion “concurring dubitante” in a decision granting immunity to register his concern with “the kudzu-like creep of the modern immunity regime” and explaining how the doctrine “smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”

Over the last few years, Judge Willett has written several additional opinions elaborating on various concerns with the doctrine, both in terms of its underlying justifications and practical application. And last week, in a case called Rogers v. Jarrett, he added to this judicial anthology, with a concurring opinion highlighting Professor Alex Reinert’s recent scholarship, which explains how the legal justifications for qualified immunity are even weaker than previously believed.

On the merits, Rogers isn’t the most remarkable qualified immunity decision. The case involves a prison inmate, Kevion Rogers, who was working unsupervised in a hog barn when the ceiling collapsed on him. He told several prison staffers that he needed medical attention, but they told him his injuries didn’t look serious enough. Shortly thereafter, he blacked out and was taken to a nearby hospital, where he was diagnosed with a traumatic brain injury. Rogers subsequently brought a Section 1983 claim against these prison officials for alleged violations of his Eighth Amendment rights, but the district court held they were entitled to qualified immunity.

The Fifth Circuit, in a majority opinion authored by Judge Willett, affirmed, holding that Rogers had failed even to substantiate an underlying constitutional violation. Though the defendants’ failure to get Rogers medical attention might have been negligent, the panel held there was no evidence the defendants acted with “deliberate indifference,” the high bar necessary to show an Eighth Amendment violation. The panel then explained how the alleged right here wasn’t “clearly established,” but this isn’t really a case where qualified immunity mattered, because the court concluded there was no rights violation in the first place.

However, Judge Willett wrote a separate concurring opinion “to highlight newly published scholarship that paints the qualified-immunity doctrine as flawed—foundationally—from its inception”; specifically, Alex Reinert’s recent article Qualified Immunity’s Flawed Foundation.

To briefly summarize the relevant background, the basic legal case against qualified immunity is that (1) Section 1983 make no mention of any immunities and (2) the modern doctrine is inconsistent with the nineteenth-century common law against which the statute was passed. This is the thrust of Will Baude’s 2018 article Is Qualified Immunity Unlawful?, and though some scholars have argued that the common law included more robust immunities than Baude suggests, all agree at least that the modern “clearly established law” standard is historically unsupported.

As it turns out, however, this historical debate about the scope of nineteenth-century immunities is irrelevant, because the first version of Section 1983 passed by the Reconstruction Congress (in Judge Willett’s words) “explicitly stated—right there in the original statutory text—that it was nullifying all common-law defenses against § 1983 actions.”

Reinert’s article reveals that original language of the law we now call “Section 1983” stated as follows:

[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 .…

The emphasized language—what Reinert calls the “Notwithstanding Clause”—makes unmistakably clear that, whatever common-law immunities might have existed in 1871, they were not meant to preclude relief under this new civil rights law. In other words, they clarify that Section 1983 means exactly what it says—a public official who violates someone’s constitutional rights is liable, period.

But for reasons lost to history, this “Notwithstanding Clause” was “inexplicably omitted from the first compilation of federal law in 1874.” To be clear, this is not a case of an earlier draft of legislation that was changed before enactment; this is an example of the Reviser of Federal Statutes making an unauthorized change to the law Congress actually enacted. That error, whatever its origin, has never been corrected, and today, 152 years after its original passage, the “official” version of Section 1983 continues to omit the language explicitly negating the availability of common-law defenses.

As Judge Willett correctly concludes, “[t]hese are game-changing arguments, particularly in this text-centric judicial era when jurists profess unswerving fidelity to the words Congress chose.” Though there was already a clear consensus that the “clearly established law” standard was unsupported by the text or history of Section 1983, scholars and jurists disagreed on what, if anything, should replace it. Now, however, that potentially difficult question has been answered—the precise scope of nineteenth-century common-law immunities is irrelevant, because the original version of Section 1983 explicitly stated that no such defenses were available. This is all the more reason for the Supreme Court to finally do what it ought to have done years ago—reconsider and abolish the fundamentally flawed doctrine of qualified immunity.