Amicus Curiae Brief — National Rifle Association of America, Petitioner v. Maria T. Vullo

No. 25-479

In the

Supreme Court of the United States

_____________

THE NATIONAL RIFLE ASSOCIATION OF AMERICA,

Petitioner,

v.

MARIA T. VULLO,

_____________

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

_____________

AMICUS CURIAE BRIEF OF THE

NEW CIVIL LIBERTIES ALLIANCE

IN SUPPORT OF PETITIONER

_____________

Jacob Huebert

Counsel of Record

Markham S. Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

4250 N. Fairfax Drive, Suite 300

Arlington, Virginia 22203

(202) 869-5210

jacob.huebert@ncla.legal

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF THE AMICUS CURIAE....................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................2

I.

THE COURT SHOULD OVERRULE THE

“CLEARLY ESTABLISHED LAW” STANDARD .......... 5

A. The Judge-Made “Clearly Established

Law” Standard Lacks Any Textual or

Historical Basis .......................................... 5

B. By Balancing Policy Concerns in Adopting

the “Clearly Established Law” Standard,

the Court Inappropriately Assumed a

Legislative Role .......................................... 7

C. Policy Reasons Do Not Justify the “Clearly

Established Law” Standard—Especially

Outside the Law-Enforcement Context in

Which It Arose ............................................ 9

II. QUALIFIED IMMUNITY WAS TEXTUALLY AND

HISTORICALLY BASELESS FROM THE START ...... 14

A. The Plain Language and Historical

Context of § 1983 Provide No Basis

for Qualified Immunity ............................ 14

B. No Well-Established Good-Faith Defense

Existed When Congress Enacted § 1983 . 16

C. Pierson’s Reliance on the “Derogation”

Canon of Construction Was Unsound ..... 17

ii

D. Section 1983’s Legislative History

Confirms the Pierson Court’s Error......... 18

III. STARE DECISIS CANNOT JUSTIFY KEEPING THE

CURRENT “CLEARLY ESTABLISHED LAW”

STANDARD......................................................... 21

CONCLUSION ..........................................................24

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Creighton,

483 U.S. 635 (1987) ..................................................7

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ................................................22

Baxter v. Bracey,

140 S. Ct. 1862 (2020) .............................. 6, 7, 15, 21

Bostock v. Clayton County,

590 U.S. 644 (2020) ................................................14

Briscoe v. LaHue,

460 U.S. 325 (1983) ................................................15

Buckley v. Fitzsimmons,

509 U.S. 259 (1993) ................................................16

Crawford-El v. Britton,

523 U.S. 574 (1998) ..............................................7, 8

Filarsky v. Delia,

566 U.S. 377 (2012) ................................................17

Gregoire v. Biddle,

177 F.2d 579 (2d Cir. 1949) .....................................4

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .................................. 2, 3, 4, 7, 9

Henson v. Santander Consumer USA Inc.,

582 U.S. 79 (2017) ....................................................8

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021) ...................................... 12, 21

Horvath v. City of Leander,

946 F.3d 787 (5th Cir. 2020)..................................12

iv

Imbler v. Pachtman,

424 U.S. 409 (1976) ............................................ 6, 17

Janus v. AFSCME,

585 U.S. 878 (2018) .................................... 21, 22, 23

Jones v. Alfred H. Mayer Co.,

392 U.S. 409 (1968) ................................................19

Kisela v. Hughes,

584 U.S. 100 (2018) ............................................ 9, 10

Little v. Barreme,

6 U.S. (2 Cranch) 170 (1804) .................................16

Lombardo v. City of St. Louis,

143 S. Ct. 2419 (2023) ...................................... 10, 24

Malley v. Briggs,

475 U.S. 335 (1986) ................................ 3, 6, 8, 9, 11

Milner v. Dep’t of Navy,

562 U.S. 562 (2011) ................................................14

Mitchum v. Foster,

407 U.S. 225 (1972) ................................................15

Monroe v. Pape,

365 U.S. 167 (1961) ..................................................6

Myer v. Car Co.,

102 U.S. 1 (1880) ....................................................20

N.S. v. Kan. City Bd. of Police Comm’rs,

143 S. Ct. 2422 (2023) ............................................10

Nieves v. Bartlett,

587 U.S. 391 (2019) ..................................................8

Owen v. City of Independence,

445 U.S. 622 (1980) ............................................ 6, 11

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................10

v

Pierson v. Ray,

386 U.S. 547 (1967) ................ 2, 6, 14, 15, 16, 17, 18

Rehberg v. Paulk,

566 U.S. 356 (2012) ..................................................8

Richardson v. McKnight,

521 U.S. 399 (1997) ................................................11

Rogers v. Jarrett,

63 F.4th 971 (5th Cir. 2023) ............................ 18, 20

Ross v. Blake,

578 U.S. 632 (2016) ..................................................6

Tower v. Glover,

467 U.S. 914 (1984) ..................................................8

United States v. Bowen,

100 U.S. 508 (1879) ................................................20

Villareal v. City of Laredo,

94 F.4th 374 (5th Cir. 2024) ..................................13

White v. Pauly,

580 U.S. 73 (2017) ..................................................22

Wyatt v. Cole,

504 U.S. 158 (1992) ..................................................7

Young v. Borders,

850 F.3d 1274 (11th Cir. 2017)................................9

Zadeh v. Robinson,

902 F.3d 483 (5th Cir. 2018)..................................10

Zadeh v. Robinson,

928 F.3d 457 (5th Cir. 2019)..................................22

Ziglar v. Abbasi,

582 U.S. 120 (2017) ..................................................8

vi

Statutes

42 U.S.C. § 1983 .................................................. 2, 3, 5

Civil Rights Act of 1871,

ch. 22, 17 Stat. 13 ............................................ 14, 19

Other Authorities

Alexander A. Reinert,

Qualified Immunity’s Flawed Foundation,

111 Cal. L. Rev. 201 (2023) ....................... 15, 17, 19

Ann Woolhandler,

Patterns of Official Immunity and Accountability,

37 Case W. Res. L. Rev. 396 (1987) .......................17

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts

(2012) ......................................................................17

Christopher Keleher,

The Antidote of Free Speech: Censorship During

the Pandemic,

73 Cath. U. L. Rev. 213 (2024) ..............................13

David E. Engdahl,

Immunity and Accountability for Positive

Governmental Wrongs,

44 U. Colo. L. Rev. 1 (1972) ...................................16

James E. Pfander & Jonathan L. Hunt,

Public Wrongs and Private Bills: Indemnification

and Government Accountability in the Early

Republic,

85 N.Y.U. L. Rev. 1862 (2010) ...............................17

vii

Jay R. Schweikert,

Qualified Immunity: A Legal, Practical, and Moral

Failure,

Cato Inst. Policy Analysis No. 901

(Sept. 14, 2020) ......................................................22

Joanna C. Schwartz,

How Qualified Immunity Fails,

127 Yale L.J. 2 (2017) ...................................... 10, 11

Joanna C. Schwartz,

Police Indemnification,

89 N.Y.U. L. Rev. 885 (2014) .................................12

Joanna C. Schwartz,

The Case Against Qualified Immunity,

93 Notre Dame L. Rev. 1797 (2018) ................ 10, 11

Jonathan Turley,

Harm and Hegemony: The Decline of Free Speech

in the United States,

45 Harv. J. L. & Pub. Pol’y 571 (2022) ..................13

Ralph H. Dwan & Ernest R. Feidler,

The Federal Statutes—Their History and Use,

22 Minn. L. Rev. 1008 (1938) ................................19

Richard A. Matasar,

Personal Immunities Under Section 1983: The

Limits of the Court’s Historical Analysis,

40 Ark. L. Rev. 741 (1987) .....................................16

William Baude,

Is Qualified Immunity Unlawful?,

106 Cal. L. Rev. 45 (2018) ........................... 7, 13, 16

1

INTEREST OF THE AMICUS CURIAE1

The New Civil Liberties Alliance (“NCLA”) is a

nonpartisan, nonprofit civil rights organization and

public-interest law firm devoted to defending

constitutional freedoms from the administrative

state’s depredations. Professor Philip Hamburger

founded NCLA to challenge multiple constitutional

defects in the modern administrative state through

original litigation, amicus curiae briefs, and other

advocacy.

The “civil liberties” of the organization’s name

include rights at least as old as the U.S. Constitution

itself, such as jury trial, due process of law, and the

right to have laws made by the nation’s elected

lawmakers through constitutionally prescribed

channels (i.e., the right to self-government). These

selfsame civil rights are also very contemporary—and

in dire need of renewed vindication—precisely

because Congress, the President, federal agencies,

and sometimes even the Judiciary, have neglected

them for so long. NCLA aims to defend these civil

liberties, primarily by advocating for constitutional

constraints on the administrative state.

NCLA opposes the judge-made doctrine of

qualified immunity because it defies the text of a

statute enacted by Congress—and thus both violates

the Separation of Powers and deprives Americans of a

vital means of obtaining redress for, and deterring,

1 In accordance with Supreme Court Rule 37.2, NCLA provided

timely notice to counsel of record for the parties of its intention

to file this brief. No party’s counsel authored any portion of this

brief, and no party, party counsel, or person other than amicus

curiae made a monetary contribution intended to fund this brief’s

preparation or submission. See S. Ct. R. 37.6.

2

violations of rights guaranteed by federal law and the

United States Constitution.

INTRODUCTION AND SUMMARY OF

ARGUMENT

In 42 U.S.C. § 1983, Congress provided that

“[e]very person” acting “under color” of state law who

deprives another of rights, privileges or immunities

secured by the U.S. Constitution or federal laws “shall

be liable to the party injured in an action at law …”

(emphasis added). Yet this Court has created a

qualified-immunity doctrine under which state actors

often cannot be held liable under § 1983 for their

violations of federal law or constitutional rights,

despite the statute’s clear text, which provides for no

immunities or other exceptions.

First, the Court held in Pierson v. Ray, 386 U.S.

547 (1967), that officers sued under § 1983 could raise

a “good faith and probable cause” defense that

supposedly was available at common law, which

Congress supposedly intended to preserve when it

enacted the Civil Rights Act of 1871. Id. at 557. Later,

the Court greatly expanded qualified immunity in

Harlow v. Fitzgerald, holding § 1983 makes state

actors liable only for actions that “violate clearly

established statutory or constitutional rights of which

a reasonable person would have known.” 457 U.S. 800,

818 (1982).

The Court should, at a minimum, overrule

Harlow to the extent that its “clearly established” law

standard protects officials like Respondent Vullo who

engage in deliberate decision-making and have time

to seek legal advice before acting.

3

Harlow’s “clearly established law” standard

directly contradicts the statute’s text and history. The

statute’s terms demand liability for every violation of

constitutional rights—not just violations based on

conduct specifically held to be unconstitutional in a

previous court decision. See 42 U.S.C. § 1983 (“Every

person … .” (emphasis added)).

Further, by adding the “clearly established

law” rule to § 1983, the Court improperly assumed a

legislative role. Harlow deemed the rule necessary to

balance “competing values”: on the one hand, the need

to redress violations of federal law; on the other hand,

“the expenses of litigation, the diversion of official

energy from pressing public issues, and the deterrence

of able citizens from acceptance of public office.” 457

U.S. at 814. But the weighing of such values is the

exclusive role of Congress; as the Court frequently

recognizes in other contexts, courts may not rewrite

statutes based on judges’ own views on public policy

or guesses about what Congress might have wanted.

Moreover, the “clearly established law” rule

does not even achieve the “balance” it purports to

seek. It does not merely weed out “insubstantial”

claims to eliminate needless burdens on state actors

and the courts, Malley v. Briggs, 475 U.S. 335, 341

(1986); rather, it broadly bars redress for—and

reduces state actors’ incentive to avoid—even

egregious constitutional violations. It also stunts the

development of constitutional law, as it allows courts

to avoid reaching the merits of constitutional claims,

which prevents the law from ever becoming “clearly

established.”

Harlow expressed concern over the prospect of

liability “dampen[ing] the ardor” of officials in

4

carrying out their duties. 457 U.S. at 814 (quoting

Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)).

But there is little reason to believe that the prospect

of liability—however valid that concern might be for

law-enforcement officers who make split-second, heatof-the-moment decisions—it makes no sense for

officials—like Respondent Vullo—who do not act in

the heat of the moment but engage in deliberate

decision making. Besides, the law should “dampen the

ardor” of such officials who—like Respondent Vullo—

are inclined to use their power to suppress speech of

which they disapprove. See id. Making state decision

makers stop to think twice about the constitutionality

of their actions is not an unforeseen side effect of

§ 1983—it’s one of the statute’s primary benefits and

purposes.

Further, the Court’s initial recognition of

qualified immunity in Pierson was ill-founded. Again,

the statute’s plain text is absolute, with no exception

for the common-law “good faith” defense that Pierson

recognized. In fact, Congress’s original language in

the Civil Rights Act of 1871, which was somehow

erroneously omitted when federal statutes were

codified in 1874, made clear that officials were to be

held liable notwithstanding any state law to the

contrary—demonstrating that Congress meant to

abrogate, not preserve, any common-law defenses.

And recent scholarship has shown that the Pierson

Court’s belief that the common law gave government

officials a “good faith” defense was incorrect—so there

was no such defense that Congress could have

intended to preserve. See infra at 17-19.

The “clearly established law” rule does not

warrant the benefit of stare decisis, at least outside

the context of split-second, life-or-death decisions. It

5

is contrary to § 1983’s unambiguous text and the

product of unconstitutional judicial lawmaking.

Moreover, the standard is unworkable, as courts have,

for decades, struggled and failed to apply it in an

objective, consistent way—resulting in absurd, unjust

results like the lower court’s decision here. The Court

should prevent such cases from arising in the future—

as they otherwise inevitably will—by overruling

Harlow, at least as it applies to officials who engage

in deliberate decision making.

I.

THE COURT SHOULD OVERRULE THE

“CLEARLY ESTABLISHED LAW” STANDARD

A.

The

Judge-Made

“Clearly

Established Law” Standard Lacks

Any Textual or Historical Basis

The “clearly established law” standard at issue

in this case lacks any textual or historical basis.

Section 1983 is clear:

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory or the

District of Columbia, subjects, or causes

to be subjected, any citizen of the United

States or other person within the

jurisdiction thereof to the deprivation of

any rights, privileges, or immunities

secured by the Constitution and laws,

shall be liable to the party injured in an

action at law, suit in equity, or other

proper proceeding for redress … .

42 U.S.C. § 1983 (emphasis added).

The statute makes no reference to immunity.

To the contrary, “[i]ts language is absolute and

6

unqualified,” with “no mention … made of any

privileges, immunities, or defenses that may be

asserted.” Owen v. City of Independence, 445 U.S. 622,

635 (1980). See also Malley, 475 U.S. at 339 (“[T]he

statute on its face admits of no immunities.”); Imbler

v. Pachtman, 424 U.S. 409, 417 (1976) (same). It

applies “categorically to [every] deprivation of

constitutional rights under color of state law.” Baxter

v. Bracey, 140 S. Ct. 1862, 1862-63 (2020) (Thomas, J.,

dissenting from denial of certiorari).

Despite the statute’s unequivocal statement

that “every” state actor “shall be liable” for

constitutional violations, 42 U.S.C. § 1983 (emphasis

added)—and even though “statutory interpretation” is

supposed to “begin[] with the text,” Ross v. Blake, 578

U.S. 632, 638 (2016)—Pierson read a good-faith

defense into the statute. Pierson said that § 1983

“should be read against the background of tort

liability that makes a man responsible for the natural

consequences of his actions,” 386 U.S. at 556 (quoting

Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled

by, Monell v. Dep’t of Soc. Servs. of New York, 436 U.S.

658 (1978)). It thus held that the defense of good faith

and probable cause available to officers in commonlaw actions for false arrest and imprisonment also

provided a “good faith” defense to § 1983 claims.

As discussed below, infra at 14-20, that

conclusion is dubious enough—but at least it was

(ostensibly) grounded in the common law of 1871, the

background against which Congress enacted § 1983.

But the Court eliminated even that common-law

foundation for immunity in Harlow. Pierson had

adopted a “good faith” defense based on the elements

of the torts at issue in that case, false arrest and

imprisonment; Harlow, however, recast the defense as

7

an across-the-board immunity, untethered to

common-law torts and their defenses. See Anderson v.

Creighton, 483 U.S. 635, 642-43 (1987); see also

William Baude, Is Qualified Immunity Unlawful?,

106 Cal. L. Rev. 45, 60-61 (2018). Under Harlow,

courts no longer ask whether a particular defense was

available at common law; instead, the question is

whether the defendant “violate[d] clearly established

statutory or constitutional rights of which a

reasonable person would have known.” Harlow, 457

U.S. at 818.

Thus, the “clearly established law” standard

lacks any basis in the statute’s text—and lacks any

analytical connection to the reasoning that underlay

Pierson’s recognition of a good-faith defense in the

first place. See Baxter, 140 S. Ct. at 1864 (Thomas, J.,

dissenting); Crawford-El v. Britton, 523 U.S. 574, 611

(1998) (Scalia, J., dissenting) (“[O]ur treatment of

qualified immunity under 42 U.S.C. § 1983 has not

purported to be faithful to the common-law

immunities that existed when § 1983 was enacted,

and that the statute presumably intended to

subsume.”); Wyatt v. Cole, 504 U.S. 158, 170 (1992)

(Kennedy, J., concurring) (“In the context of qualified

immunity … we have diverged to a substantial degree

from the historical standards.”).

B.

By Balancing Policy Concerns in

Adopting the “Clearly Established

Law”

Standard,

the

Court

Inappropriately

Assumed

a

Legislative Role

In adopting the “clearly established law”

standard, the Court rewrote § 1983 and thus

substituted its own public-policy views for those of

8

Congress. The Court has at times insisted that the

standard emanates from § 1983 itself and is not

simply a “freewheeling policy choice.” Malley, 475 U.S.

at 342. See also Rehberg v. Paulk, 566 U.S. 356, 363

(2012); Tower v. Glover, 467 U.S. 914, 922-23 (1984)

(“We do not have a license to establish immunities

from” suits brought under the Act “in the interests of

what we judge to be sound public policy.”). But in fact,

the Court’s “qualified immunity precedents …

represent precisely the sort of freewheeling policy

choices that [the Court has] previously disclaimed the

power to make.” Ziglar v. Abbasi, 582 U.S. 120, 15960 (2017) (Thomas, J., concurring) (cleaned up). See

also Crawford-El, 523 U.S. at 611-12 (Scalia, J.,

dissenting).

“[I]t is never [the Court’s] job to rewrite a

constitutionally valid statutory text under the banner

of speculation about what Congress might have”

wanted. Henson v. Santander Consumer USA Inc.,

582 U.S. 79, 89 (2017); see also Nieves v. Bartlett, 587

U.S. 391, 413 (2019) (Gorsuch, J., concurring in part

and dissenting in part) (“[This Court’s] job isn’t to

write or revise legislative policy but to apply it

faithfully.”); Crawford-El, 523 U.S. at 611-12 (Scalia,

J., dissenting) (describing the Court’s qualifiedimmunity jurisprudence as an “essentially legislative”

project).

Yet Harlow itself makes clear that the Court

engaged in precisely the sort of balancing of publicpolicy concerns that is Congress’s exclusive domain.

The Court justified the “clearly established law

standard” by asserting that it is “the best attainable

accommodation of competing values”: on the one

hand, the need to redress violations of federal law, and

on the other “the expenses of litigation, the diversion

9

of official energy from pressing public issues, and the

deterrence of able citizens from acceptance of public

office.” Harlow, 457 U.S. at 814. The Court deemed it

necessary to shield state officials from financial

liability and the burden of litigation to avoid deterring

“able citizens from … public office” and “dampen[ing]

the ardor” of officials executing their duties. Id. at 814.

The Court should now reject this undue

incursion on Congress’s authority by, at a minimum,

eliminating the “clearly established law” standard

and limiting § 1983 defenses to those recognized by

common law as it stood in 1871.

C.

Policy Reasons Do Not Justify the

“Clearly Established Law” Standard

—Especially Outside the LawEnforcement Context in Which It

Arose

In addition, the Court should overrule Harlow

because experience has shown that its “clearly

established law” rule does not even achieve the

“balance” at which the Court was aiming.

Instead of shielding government officials from

“insubstantial” claims and ensuring effective

government functioning, Malley, 475 U.S. at 341, the

“clearly established law” standard has harmed the

citizens § 1983 was enacted to protect—not only by

denying relief for constitutional violations but also by

assuring government actors that they will almost

never be held accountable for violations. The Court’s

qualified-immunity jurisprudence sends an “alarming

signal” that “palpably unreasonable conduct will go

unpunished.” Kisela v. Hughes, 584 U.S. 100, 121

(2018) (Sotomayor, J., dissenting); Young v. Borders,

850 F.3d 1274, 1299-1300 (11th Cir. 2017) (Martin, J.,

10

dissenting from denial of rehearing en banc); Joanna

C. Schwartz, The Case Against Qualified Immunity,

93 Notre Dame L. Rev. 1797, 1814-20 (2018). Instead

of ensuring that government employees carry out

their lawful duties with appropriate “ardor,” qualified

immunity incentivizes them to act without due

concern for constitutional rights. See Kisela, 584 U.S.

at 121 (Sotomayor, J., dissenting).

The “clearly established law” rule also “inhibits

the development of [constitutional] law.” Lombardo v.

City of St. Louis, 143 S. Ct. 2419, 2421 (2023)

(Sotomayor, J., dissenting from denial of certiorari).

This Court’s precedents allow courts to sidestep the

question whether an official’s actions violated a

constitutional right and simply dispose of a § 1983

claim on the ground that, whatever the merits, the

official’s action did not violate “clearly established

law.” See Pearson v. Callahan, 555 U.S. 223, 236-242

(2009). As a result, “[i]mportant constitutional

questions go unanswered precisely because those

questions are yet unanswered. Courts then rely on

that judicial silence to conclude there’s no equivalent

case on the books.” Lombardo, 143 S. Ct. at 2421

(Sotomayor, J., dissenting) (quoting Zadeh v.

Robinson, 902 F.3d 483, 499 (5th Cir. 2018) (Willett,

J., concurring dubitante)). This prevents the law from

becoming “clearly established” for future cases, giving

state officials—who base their practices, policies, and

training on court decisions—no reason to take

corrective action. Joanna C. Schwartz, How Qualified

Immunity Fails, 127 Yale L.J. 2, 65-66, 69-70 (2017).

Thus, “grave constitutional violations” may go both

unpunished and undeterred. N.S. v. Kan. City Bd. of

Police Comm’rs, 143 S. Ct. 2422, 2424 (2023)

(Sotomayor, J., dissenting from denial of certiorari).

11

Moreover, Harlow’s concern for “potentially

disabling threats of liability” is unwarranted because

most jurisdictions indemnify state officials or carry

insurance to cover the cost of litigation and liability.

See Schwartz, The Case Against Qualified Immunity,

supra, at 1804 n.45. As the Court has recognized, “fear

of unwarranted liability” holds no sway where

insurance coverage exists. Richardson v. McKnight,

521 U.S. 399, 411 (1997). And granting qualified

immunity where there is indemnification effectively

gives the government indemnity to which it is not

entitled. See Owen, 445 U.S. at 638.

Further, the availability of the qualifiedimmunity defense may add to, rather than reduce, the

time and expense of litigation, with both qualified

immunity and the merits litigated, often separately

and sequentially. Schwartz, The Case Against

Qualified Immunity, supra, at 1824. Thus, rather

than “avoid[ing] excessive disruption of government”

by making it easier to resolve “insubstantial claims on

summary judgment,” Malley, 475 U.S. at 341, more

time elapses and more delays occur. Schwartz, The

Case Against Qualified Immunity, supra at 1824;

Schwartz, How Qualified Immunity Fails, supra, at

69. And the prospect of such protracted litigation,

combined with the potential for qualified immunity to

ultimately bar recovery, may discourage injured

parties from bringing meritorious § 1983 lawsuits.

Nor can an interest in protecting lawenforcement officers who are forced to make splitsecond decisions in volatile situations save the

“clearly established law” standard.

And even if policy concerns could justify the

“clearly established law” standard in high-risk, heat-

12

of-the-moment situations,2 it could not justify

applying the standard to officials like Respondent

Vullo, whose censorious actions were the result of

deliberation. See Hoggard v. Rhodes, 141 S. Ct. 2421,

2422 (2021) (Thomas, J., statement regarding denial

of certiorari) (“[W]hy should university officers, who

have time to make calculated choices about enacting

or enforcing unconstitutional policies, receive the

same protection as a police officer who makes a splitsecond decision to use force in a dangerous setting?”).

In the deliberate-decision-making context, where

officials have time to obtain and act on legal advice,

the risk of uncertainty should be placed on the officials

who can weigh the decision and then act—or not act—

rather than on the innocent individual (or

organization) whose rights are involuntarily and

illegally infringed. Balancing the equities in this way

promotes protection of important rights by

incentivizing care in decision making.

Further, especially when it comes to

suppressing speech, “dampening” officials’ “ardor” is a

good thing—not something the Court should invent or

maintain dubious doctrines to discourage. See

Horvath v. City of Leander, 946 F.3d 787, 802 (5th Cir.

2020) (Ho, J., concurring in part and dissenting in

part) (“[T]he fear of chilling public officials does not

2 Even that rationale is questionable. It is not obviously true that

officers acting in the heat of the moment weigh the prospect of

civil liability, especially given the greater deterrent of criminal

liability for violent misconduct. And because no liability attaches

for the use of reasonable force, even without qualified immunity,

§ 1983 does not require officers to be perfect—it merely requires

them to act reasonably. And, again, indemnification and

insurance eliminate litigation and liability costs from the

equation. Joanna C. Schwartz, Police Indemnification, 89 N.Y.U.

L. Rev. 885, 890 (2014).

13

justify

a

‘clearly

established’

requirement

unsupported by text” in part because “[w]hen it comes

to the First Amendment, for example, we are

concerned about government chilling the citizen—not

the other way around.”). And checking officials’ ardor

to censor is all the more important at a time when

many academics and politicians increasingly attack

the very concept of free speech and seek to suppress

speech of which they disapprove, both directly and, as

in this case, indirectly, by pressuring private third

parties. See Christopher Keleher, The Antidote of Free

Speech: Censorship During the Pandemic, 73 Cath. U.

L. Rev. 213, 245-52, 256-58 (2024); Jonathan Turley,

Harm and Hegemony: The Decline of Free Speech in

the United States, 45 Harv. J. L. & Pub. Pol’y 571, 609620, 653-76 (2022).

Finally, it is simply perverse that “[i]n the

upside-down world of qualified immunity, everyday

citizens are demanded to know the law’s every jot and

tittle, but those charged with enforcing the law are

only expected to know the ‘clearly established’ ones,”

so that “ignorance of the law is an excuse—for

government officials.” Villareal v. City of Laredo, 94

F.4th 374, 407 (5th Cir. 2024) (Willett, J., dissenting),

cert. granted, vacated & remanded, Villareal v. Alaniz,

145 S. Ct. 368 (2024); see also Baude, supra, at 76-77

(noting that this Court has held that a circuit split

deprived officials of sufficient “notice” under the

“clearly established” standard, but “[c]riminal

defendants never get such solicitude”). “Such blithe

‘rules for thee but not for me’ nonchalance is less

qualified immunity than unqualified impunity,”

Villareal, 94 F.4th at 407 (Willett, J., dissenting)—the

opposite of what Congress sought to achieve in § 1983.

14

For all these reasons, the “clearly established

law” rule should not protect state officials who violate

constitutional rights—or at least those who, like

Respondent Vullo in this case, act deliberately to

violate First Amendment rights.

II.

QUALIFIED IMMUNITY WAS TEXTUALLY AND

HISTORICALLY BASELESS FROM THE START

Like the “clearly established law rule,” the

qualified-immunity defense as a whole—even in

Pierson’s narrow form—lacks any basis in the

statute’s text or history.

A.

The Plain Language and Historical

Context of § 1983 Provide No Basis

for Qualified Immunity

The qualified-immunity doctrine lacks any

basis in the plain language of § 1983. As Justice

Douglas emphasized in his Pierson dissent, most

people would read “every person” in § 1983 to “mean

every person”—no exceptions. 386 U.S. at 559

(Douglas, J., dissenting) (emphasis added). Pierson

defies the principle that “[o]nly the written word is the

law.” Bostock v. Clayton County, 590 U.S. 644, 653

(2020). “Statutory construction must begin with the

language employed by Congress and the assumption

that the ordinary meaning of that language accurately

expresses the legislative purpose,” Milner v. Dep’t of

Navy, 562 U.S. 562, 569 (2011)—so Pierson’s

interpretation of § 1983 in defiance of its text was

improper.

The historical context of Section 1 of the Civil

Rights Act of 1871, ch. 22, 17 Stat. 13 (later codified

in § 1983), also confirms that Congress did not intend

to provide immunity to those acting under color of

15

state law but rather sought to abrogate various statelaw defenses.

Congress passed that law in the aftermath of

the Civil War “for the express purpose of ‘enforc(ing)

the Provisions of the Fourteenth Amendment.’”

Mitchum v. Foster, 407 U.S. 225, 238 (1972) (quoting

ch. 22, 17 Stat. 13). At that time, a “condition of

lawlessness existed in certain of the States, under

which people were being denied their civil rights.”

Pierson, 386 U.S. at 559 (Douglas, J., dissenting).

“Armed with its new [Fourteenth Amendment]

enforcement powers, Congress sought to respond to

‘the reign of terror imposed by the Klan upon black

citizens and their white sympathizers in the Southern

States.’” Baxter, 140 S. Ct. at 1862 (Thomas, J.,

dissenting from denial of certiorari) (quoting Briscoe

v. LaHue, 460 U.S. 325, 337 (1983)). In response to the

violence, Congress sought to establish the federal

government as the “guarantor of basic federal rights

against state power.” Mitchum, 407 U.S. at 239.

To achieve that goal, Congress “opened the

federal courts to private citizens, offering a uniquely

federal remedy against incursions under the claimed

authority of state law upon rights secured by the

Constitution.” Id. Indeed, the “very purpose” of the

Act “was to interpose the federal courts between the

States and the people, as guardians of the people’s

federal rights—to protect the people from

unconstitutional action under color of state law.” Id.

at 242. See also Alexander A. Reinert, Qualified

Immunity’s Flawed Foundation, 111 Cal. L. Rev. 201,

239 (2023) (“[T]he legislative record is replete with

evidence that supporters of the Civil Rights Act did

not trust state courts to protect constitutional

rights.”); Richard A. Matasar, Personal Immunities

16

Under Section 1983: The Limits of the Court’s

Historical Analysis, 40 Ark. L. Rev. 741, 772 (1987)

(noting Congress’s assumption that the “shall be

liable” standard “would apply to all officials—

legislators, judges, and executive officers”).

The historical record leaves no room to conclude

that Congress sought to preserve rather than

abrogate various state-level defenses to claims of

violations of federally guaranteed rights.

B.

No Well-Established Good-Faith

Defense Existed When Congress

Enacted § 1983

Pierson erred in presuming that, because

“[c]ertain immunities were so well established in

1871, when § 1983 was enacted, ‘ … Congress would

have specifically so provided had it wished to abolish’

them.” Buckley v. Fitzsimmons, 509 U.S. 259, 268

(1993) (quoting Pierson, 386 U.S. at 554-55).

In fact, recent scholarship has shown that

“lawsuits against officials for constitutional violations

did not generally permit a good-faith defense during

the early years of the Republic,” and that the “‘strict

rule of personal official liability, even though its

harshness to officials was quite clear,’ was a fixture of

the founding era.” Baude, supra, at 55-56 (emphasis

added) (quoting David E. Engdahl, Immunity and

Accountability for Positive Governmental Wrongs, 44

U. Colo. L. Rev. 1, 19 (1972)). See also Little v.

Barreme, 6 U.S. (2 Cranch) 170, 179 (1804) (naval

officer liable for illegal vessel seizure despite his “pure

intention” in following an order directing it because

“the instructions [could not] change the nature of the

transaction, or legalize an act which without those

instructions would have been a plain trespass”);

17

James E. Pfander & Jonathan L. Hunt, Public Wrongs

and Private Bills: Indemnification and Government

Accountability in the Early Republic, 85 N.Y.U. L.

Rev. 1862, 1863-64 (2010); Ann Woolhandler, Patterns

of Official Immunity and Accountability, 37 Case W.

Res. L. Rev. 396, 414-422 (1987). Thus, even if

Congress had intended to preserve common-law

defenses as they existed in 1871, no good-faith defense

existed to preserve.

Thus, Pierson—which did not address either

the Founding- or Reconstruction-era precedents—

rests on a false premise.

C.

Pierson’s

Reliance

on

the

“Derogation” Canon of Construction

Was Unsound

Pierson’s reasoning has a second fatal flaw: it

rested on the incorrect belief, referred to as the

“derogation canon” of construction, that, if Congress

had intended to abolish immunities “well grounded in

history and reason,” it “would have specifically so

provided.” Filarsky v. Delia, 566 U.S. 377, 383 (2012)

(quoting Imbler, 424 U.S. at 418); Pierson, 386 U.S. at

554-55.

The Court should not have relied on that

“canon” because it is “a relic of the courts’ historical

hostility to the emergence of statutory law.” Reinert,

supra, at 218 (quoting Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal

Texts 318 (2012)). And, whatever the soundness of

that canon, “since the Founding era, [this] Court had

only used the Derogation Canon (criticized by midnineteenth century courts and treatises for arrogating

power to judges) to protect preexisting common law

rights, never to import common law defenses into new

18

remedial statutes.” Rogers v. Jarrett, 63 F.4th 971,

980 n.8 (5th Cir. 2023) (Willett, J., concurring). “The

more applicable canon, around which Reconstructionera courts had coalesced, was a contrary one: remedial

statutes—such as § 1983—should be read broadly.”

Id. Indeed, it makes no sense to believe that, when

Congress enacted a statute specifically “to remedy the

inadequacies of the pre-existing law, including the

common law,” it would seek to preserve the common

law. Pierson, 386 U.S. at 561 (Douglas, J., dissenting).

D.

Section 1983’s Legislative History

Confirms the Pierson Court’s Error

The original text of Section 1 of the Civil Rights

Act, as debated and passed by Congress, further

confirms Congress meant to abrogate rather than

preserve common-law defenses for government

officials accused of violating constitutional rights.

As originally enacted, that statute provided:

[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 … .

19

Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13

(emphasis added).

By including the language italicized above,

Congress made clear that a person acting “under

color” of state law “shall … be liable” notwithstanding

contrary state law or custom or usage. Id. So, to the

extent that “good faith” or other immunities had been

available defenses, Congress meant for officials to be

liable notwithstanding them. See Reinert, supra, at

235-36.

Soon after the Act’s passage, Congress

undertook the first codification of federal law,

culminating in the passage of the Revised Statutes of

1874.3 The codified version of Section 1 of the Civil

Rights Act of 1871 lacked the “notwithstanding”

clause—but, for two reasons, this change in language

does not reflect any changes in the statute’s substance

or meaning.

First, the codification process sought merely to

consolidate and simplify the law, not to substantively

change it. See Ralph H. Dwan & Ernest R. Feidler,

The Federal Statutes—Their History and Use, 22

Minn. L. Rev. 1008, 1013 (1938). Thus, the excision of

the “notwithstanding” clause in that process strongly

suggests that the clause was “surplusage,” the

deletion of which did not alter the statute’s meaning.

Cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422

n.29 (1968) (concluding Congress dropped identical

“notwithstanding” language from § 1982 in

codification because it was “surplusage”). That means

§ 1983’s codified version is no less absolute than the

3 Section 5596 of the Revised Statutes repealed all prior federal

statutes covered by the revision.

20

original language, with neither version contemplating

a qualified-immunity defense.

Second, if there were any ambiguity in § 1983’s

text, the “notwithstanding” clause would confirm that

the “shall be liable” language was always understood

to trump state-law defenses, including immunities.

Shortly after Congress first codified the federal

statutes, this Court explained the relevance of the

original statutory language in interpreting the newly

codified Revised Statutes of 1874: “where there is

substantial doubt as to the meaning of the language

used in the revision, the old law is a valuable source

of information.” United States v. Bowen, 100 U.S. 508,

513 (1879); see also Myer v. Car Co., 102 U.S. 1, 8

(1880). And where the text of a reenacted statute is

“fairly susceptible” of two meanings, “the argument

from the provision of the statute as it stood before the

revision [is] conclusive.” Bowen, 100 U.S. at 513

(emphasis added).

Thus, § 1983’s pre-codification language

provides “conclusive” evidence that the statute does

not allow for state-law immunity defenses. Id. It

“underscore[s] that what the 1871 Congress meant for

state actors who violate Americans’ federal rights is

not immunity, but liability—indeed, liability

notwithstanding any state law to the contrary.”

Rogers, 63 F.4th at 980 (Willett, J., concurring). And

it confirms that the Court’s qualified-immunity

doctrine “does not merely complement the text—it

brazenly contradicts it.” Id. at 981.

21

III.

STARE DECISIS CANNOT JUSTIFY KEEPING THE

CURRENT “CLEARLY ESTABLISHED LAW”

STANDARD

Though the parties here argue only about

whether the lower court correctly applied the “clearly

established law” rule, the Court should reconsider the

rule—and, at a minimum, revise it to clarify that

government officials “who have time to make

calculated choices” are not entitled to “the same

protection as a police officer who makes a split-second

decision to use force in a dangerous setting.” Hoggard,

141 S. Ct. at 2422. Stare decisis, though generally “the

preferred course,” is “not an inexorable command,”

Janus v. AFSCME, 585 U.S. 878, 916-17 (2018), and

it should not stop the Court from overruling Harlow

to the extent that it applies to officials engaged in

deliberate decision making.

“An important factor in determining whether a

precedent should be overruled is the quality of its

reasoning.” Id. at 917. As shown above, both Harlow

and Pierson were poorly reasoned. Harlow was based

on the false premise that Congress meant to preserve

a “good-faith” defense—when, in fact, Congress

abrogated all existing state-law defenses, and no

“good-faith” defense for government officials existed to

preserve. See supra at 14-17. And Pierson did not even

attempt to tie its “clearly established law” rule to

Harlow’s reasoning based on common-law defenses

and instead made the rule up, without any legal

reasoning, based on the Court’s own policy judgments.

See supra at 7-9; Baxter, 140 S. Ct. at 1864 (Thomas,

J., dissenting from denial of certiorari).

“Another relevant consideration in the stare

decisis calculus is the workability of the precedent in

22

question.” Janus, 585 U.S. at 921. The “clearly

established law” standard has proven unworkable.

The “line between” what is and is not “clearly

established” in the law “has proved to be impossible to

draw with precision,” id., leading to different results

in different federal circuits and absurd outcomes like

the lower court’s decision here, which let Vullo off the

hook for an obvious, deliberate First Amendment

violation. See Petition at 19-23.

Making matters worse, the Court has

instructed that “clearly established law must be

‘particularized’ to the facts of the case.” White v.

Pauly, 580 U.S. 73, 79 (2017). But it has also said, to

lower courts’ confusion, that the doctrine “do[es] not

require a case directly on point, but existing precedent

must have placed the statutory or constitutional

question beyond debate.” Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011). Thus, even after dozens of decisions

from this Court on the question, “lower courts remain

persistently confused and divided on how to answer

the nebulous question of how similar the facts of a

prior case must be for the law to be clearly

established.” Jay R. Schweikert, Qualified Immunity:

A Legal, Practical, and Moral Failure, Cato Inst.

Policy Analysis No. 901, at 10 & n.65 (Sept. 14, 2020)

(citing examples)4; see also Zadeh v. Robinson, 928

F.3d 457, 479 (5th Cir. 2019) (Willett, J., concurring

in part and dissenting in part) (“[C]ourts of appeals

are divided—intractably—over precisely what degree

of factual similarity must exist.”).

The Court can and should reverse the lower

court’s egregious application of the rule in this case—

4 https://www.cato.org/sites/cato.org/files/2020-

09/PA%20901_1.pdf.

23

which certainly falls on the “clearly established” side

of the line, wherever that line might be—but it cannot

police all applications of the rule. And there is no

reason to believe that it could tweak the rule to ensure

consistent application—or that it would be worth

trying yet again, after many decades, for the sake of

saving such an ill-founded doctrine and protecting

officials who engage in deliberate decision making like

Respondent Vullo.

Stare decisis should not control for the

additional reason that “developments since [Harlow

and Pierson], both factual and legal, have also eroded

the decision[s’] underpinnings and left [them] an

outlier” in the Court’s jurisprudence. Janus, 585 U.S.

at 924 (cleaned up). Again, scholarship has shown

that Harlow’s assumption about Congress’s supposed

aim to preserve common-law defenses was incorrect.

See supra at 14-17. And Harlow and Pierson are

outliers in the Court’s jurisprudence because they

flagrantly disregard the oft-applied fundamental

principles that (1) statutory construction must begin

with the text and (2) that the Court must not

substitute its own policy judgments for those of

Congress.

Finally, no reliance interest can justify

retaining the current “clearly established law”

standard. See Janus, 585 U.S. at 926. Government

officials have no legitimate reliance interest in

continuing to violate constitutional rights with

impunity. That they have been wrongly allowed to get

away with much in the past is no reason to allow them

to do so in the future. See id. at 927 (concluding that

it would be “unconscionable to permit free speech

rights to be abridged in perpetuity” and that the

precedent’s beneficiaries had no “entitlement” that

24

could “establish the sort of reliance interest that could

outweigh [individuals] having their constitutional

rights fully protected”).

Qualified immunity is entirely “a creation of

[the Court’s] own design,” and so are the difficulties in

application and manifold injustices it has produced.

Lombardo, 143 S. Ct. at 2421 (Sotomayor, J.,

dissenting from denial of certiorari). The Court can

and should “reexamine the doctrine of qualified

immunity and the assumptions underlying it,” id.,

and correct its mistakes by overruling Harlow—or at

least limiting its application to the law-enforcement

context in which qualified immunity arose.

CONCLUSION

The Court should grant the petition for a writ

of certiorari.

Respectfully submitted,

/s/ Jacob Huebert

Jacob Huebert

Counsel of Record

Mark Chenoweth

NEW CIVIL LIBERTIES

ALLIANCE

4250 N. Fairfax Drive,

Ste. 300

Arlington, VA 22203

(202) 869-5210

jacob.huebert@ncla.legal

Counsel for Amicus Curiae

November 19, 2025