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The History & Purpose of § 1983

What § 1983 actually is

In 1871, six years after the Civil War ended, Congress had a problem. Former Confederate soldiers and Klan members held positions throughout Southern law enforcement and local government. They were using their authority to terrorize Black citizens — murdering, assaulting, and intimidating freedmen who tried to vote, hold office, or simply exist as equal citizens. Local courts wouldn't stop it. Local prosecutors wouldn't charge it. The system was the problem.

So Congress passed the Ku Klux Klan Act of 1871 — also called the Civil Rights Act of 1871 — and President Grant signed it into law. Every Republican voted yes. Every Democrat voted no. Section 1 of that act is what we now call 42 U.S.C. § 1983. The language is straightforward:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory … 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 …"

No exceptions. No qualifications. Shall be liable.

That was the intent: when the state itself is the abuser, federal courts step in.

What happened next

For almost ninety years, nothing. The statute sat dormant while Jim Crow flourished. It wasn't until 1961, in Monroe v. Pape, that the Supreme Court revived § 1983 and held that citizens could sue state officials in federal court for constitutional violations — even if the official's conduct also violated state law.

Then the Court started taking it back.

In 1967, in Pierson v. Ray, the Supreme Court invented qualified immunity. Not Congress. Not a constitutional amendment. The Court simply decided that police officers shouldn't face liability unless they violated "clearly established" law. This doctrine appears nowhere in the text of § 1983. It appears nowhere in the Constitution. Congress never voted on it. It is entirely judge-made law — created by the same branch of government that § 1983 was designed to hold accountable.

In 1982, Harlow v. Fitzgerald made it worse. The Court removed the subjective "good faith" requirement, so it no longer mattered whether an officer believed they were violating your rights. The only question became whether a prior court case had already established, with specificity, that this exact conduct was unconstitutional. No prior case on point? No liability. The officer walks.

Then in 2009, Pearson v. Callahan closed the loop. Courts had previously been required to decide first whether a constitutional violation occurred, and then whether the right was clearly established. Pearson let courts skip the first question entirely. They can now dismiss on qualified immunity without ever saying whether your rights were violated. The result is a catch-22: the right never gets "clearly established" because courts stop deciding whether it's a right at all.

Think about what that means. Every citizen is presumed to know every law — "ignorance of the law is no excuse." But police officers are held to the opposite standard: unless a court has already told them that this specific action is illegal, they're immune. The people with the most legal training, the most authority, and the most capacity for harm get the most forgiveness.

How we got here

The numbers

A 2020 Reuters investigation analyzed 529 cases in which police were accused of using excessive force. Courts granted qualified immunity in the majority of cases — including cases where courts acknowledged the officers used excessive force but found no prior case specific enough to make the right "clearly established." Even when courts found the conduct unconstitutional, officers still walked.

Where that leaves you

Congress wrote a law that says the government "shall be liable" for violating your rights. The Supreme Court rewrote it so the government almost never is. The result is an access-to-justice gap so wide that most civil rights lawyers won't even take your case — the odds are too long and the economics don't work.

So if your rights were violated, you probably can't find an attorney. If you file pro se, you'll face qualified immunity, heightened pleading standards, government lawyers with unlimited resources, and a system that was redesigned — by courts — to protect itself.

That's why section1983.org exists.