Article by Kathryn Dix Sowle
Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, created a civil remedy for violations of constitutional rights by persons acting "under color of" state law. Long in disuse, this provision was "resurrected from ninety years of obscurity" in Monroe v. Pape. Since the "resurrection," there has been a dramatic increase in section 1983 litigation, and the Supreme Court has confronted numerous questions concerning the precise dimensions of the remedy and the range of available defenses. Two important questions the Court has faced are (1) whether negligent deprivation of constitutional rights gives rise to a cause of action under section 1983; and (2) the scope of the defense of official immunity in section 1983 cases.
In 1978, the Supreme Court decided Procunier v. Navarette, a case involving both of these issues. Certiorari was granted in Navarette expressly to consider the question "whether negligent failure to mail certain of a prisoner's outgoing letters states a cause of action under section 1983." Instead of resolving this issue, however, the Court determined that defendant prison officials were entitled to qualified immunity and hence, on the facts, to summary judgment as a matter of law. The decision failed to clarify the law regarding either negligent deprivation of constitutional rights or official immunity; in fact it generated new problems in these areas.
The difficulties are rooted in the Court's failure to recognize that qualified immunity was irrelevant in Navarette. Under fundamental principles of tort law, qualified immunity, as defined for purposes of section 1983 actions, is inapplicable in a negligence action. The Court's recent decision in Parratt v. Taylor recognized that the negligent conduct of persons acting under color of state law may give rise to a claim under section 1983, and Navarette's use of qualified immunity in a negligence case may well cause problems in the proper resolution of future section 1983 claims. Navarette raises questions concerning qualified immunity, however, that go beyond its use in negligence actions and affect virtually all cases in which qualified immunity is an issue. The opinion's inappropriate use of official immunity set a precedent of unclear import on two significant issues: (1) whether qualified immunity is available to all state agents or only to those exercising discretionary functions, and (2) whether plaintiff or defendant bears the burden of pleading and persuasion on the issue of qualified immunity.
Prior to Navarette, a conflict had developed among the circuits concerning both the availability of immunity and the burdens of proof and persuasion. Because Navarette neither acknowledged these conflicts nor provided clear guidance for their proper resolution, the decision threatened to exacerbate the confusion in the area. In Gomez v. Toledo, the Court resolved the question of which party bears the burden of pleading, holding that the defendant must assert qualified immunity as an affirmative defense. Still open, however, are the questions of what defenses are available to officials exercising ministerial functions, and where the burden of persuasion lies on the issue of qualified immunity. Also unresolved are questions concerning Navarette's precedential significance.
This article addresses these questions. It contends that the Court must clarify the significance of Navarette as it pertains to the immunity issues on which lower courts are in conflict, and proposes resolutions of those issues designed to comport with the remedial aims of section 1983.
About the Author
Kathryn Dix Sowle. Associate Professor, The Ohio State University College of Law. B.A. 1953, Wellesley College; J.D. 1956, Northwestern University.
Citation
55 Tul. L. Rev. 326 (1981)