Reforming Qualified Immunity Act

II 116TH CONGRESS 2D SESSION S. 4036 To amend the Revised Statutes to reform the defense of qualified immunity in the case of any action under section 1979, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 23, 2020 Mr. BRAUN introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend the Revised Statutes to reform the defense of qualified immunity in the case of any action under sec- tion 1979, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Reforming Qualified 4 Immunity Act’’. 5 SEC. 2. FINDINGS. 6 The Congress finds the following: 7 (1) Congress passed the Act of April 20, 1871 8 (commonly known as the ‘‘Ku Klux Klan Act’’; 17 9 Stat. 13, chapter 22), to combat rampant violations 10 VerDate Sep 11 2014 16:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4036.IS S4036 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 4036 IS of civil and constitutionally secured rights across the 1 nation, particularly in the post-Civil War South. 2 (2) Included in that Act was a provision, now 3 codified at section 1979 of the Revised Statues (in 4 this section referred to as ‘‘section 1983’’), which 5 provides a cause of action for individuals to file law- 6 suits against State and local officials who violate 7 their legal and constitutionally secured rights. 8 (3) Section 1983 has never included a defense 9 or immunity for government officials who act in 10 good faith when violating rights, nor has it ever had 11 a defense or immunity based on whether the right 12 was ‘‘clearly established’’ at the time of the viola- 13 tion. 14 (4) From the law’s beginning in 1871, through 15 the 1960s, government actors were not afforded 16 qualified immunity for violating rights. 17 (5) The Supreme Court of the United States in 18 Pierson v. Ray, 386 U.S. 547 (1967), found that 19 government actors had a good-faith defense for mak- 20 ing arrests under unconstitutional statutes based on 21 a common-law defense for the tort of false arrest. 22 (6) The Supreme Court of the United States 23 later extended the good-faith defense beyond false 24 VerDate Sep 11 2014 16:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4036.IS S4036 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 4036 IS arrests, turning it into a general good-faith defense 1 for government officials. 2 (7) Finally, in Harlow v. Fitzgerald, 457 U.S. 3 800 (1982), the Supreme Court of the United States 4 found the subjective search for good faith in the gov- 5 ernment actor unnecessary, and replaced it with an 6 ‘‘objective reasonableness’’ standard that requires 7 that the right be ‘‘clearly established’’ at the time of 8 the violation for the defendant to be liable. 9 (8) This doctrine of qualified immunity has se- 10 verely limited the ability of many plaintiffs to re- 11 cover damages under section 1983 when their rights 12 have been violated by State and local officials. 13 (9) As a result, the intent of Congress in pass- 14 ing section 1983 has been frustrated, and the rights 15 secured by the Constitution of the United States 16 have not been appropriately protected. 17 SEC. 3. SENSE OF THE CONGRESS. 18 It is the sense of the Congress that Congress must 19 correct the erroneous interpretation of section 1979 of the 20 Revised Statutes and reform the court-created doctrine of 21 qualified immunity. 22 SEC. 4. REFORM OF QUALIFIED IMMUNITY. 23 Section 1979 of the Revised Statutes (42 U.S.C. 24 1983) is amended— 25 VerDate Sep 11 2014 16:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4036.IS S4036 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 4036 IS (1) by inserting ‘‘(a)’’ before ‘‘Every person’’; 1 and 2 (2) by adding at the end the following: 3 ‘‘(b)(1) Except as provided in paragraph (2), it shall 4 not be a defense to any action brought under this section 5 that, at the time of the deprivation— 6 ‘‘(A) the defendant was acting in good faith; 7 ‘‘(B) the defendant believed, reasonably or oth- 8 erwise, that his or her conduct was lawful; 9 ‘‘(C) the rights, privileges, or immunities se- 10 cured by the Constitution and laws were not clearly 11 established; or 12 ‘‘(D) the state of the law was such that the de- 13 fendant could not reasonably have been expected to 14 know whether his or her conduct was lawful. 15 ‘‘(2) A defendant sued in his or her individual capac- 16 ity under this section shall not be liable if the defendant 17 establishes that, at the time the deprivation occurred— 18 ‘‘(A)(i) the conduct alleged to be unlawful was 19 specifically authorized or required by a Federal stat- 20 ute or regulation, or by a statute passed by the pri- 21 mary legislative body of the State, Territory, or Dis- 22 trict of Columbia in which the conduct was com- 23 mitted; 24 VerDate Sep 11 2014 16:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4036.IS S4036 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 4036 IS ‘‘(ii) no court of competent jurisdiction had 1 issued a final decision on the merits holding, without 2 reversal, vacatur, or preemption, that the provision 3 or provisions of the statute or regulation authorizing 4 or requiring such conduct were inconsistent with the 5 Constitution or Federal laws; and 6 ‘‘(iii) the defendant reasonably believed that his 7 or her conduct was in conformance with the Con- 8 stitution of the United States and Federal laws; or 9 ‘‘(B)(i) a court of competent jurisdiction had 10 issued a final decision on the merits holding, without 11 reversal, vacatur, or preemption, that the specific 12 conduct alleged to be unlawful was consistent with 13 the Constitution of the United States and Federal 14 laws; and 15 ‘‘(ii) the defendant reasonably believed that his 16 or her conduct was in conformance with the Con- 17 stitution of the United States and Federal laws. 18 ‘‘(c)(1) In a covered action, a municipality or other 19 unit of local government shall be liable for a violation of 20 subsection (a) by an agent or employee of the municipality 21 or other unit of local government acting within the scope 22 of his or her employment. 23 ‘‘(2) It shall not be a defense to a covered action de- 24 scribed in paragraph (1) that— 25 VerDate Sep 11 2014 16:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4036.IS S4036 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 4036 IS ‘‘(A) the agent or employee was acting in good 1 faith, or that the agent or employee believed, reason- 2 ably or otherwise, that his or her conduct was lawful 3 at the time when it was committed; or 4 ‘‘(B) the rights, privileges, or immunities se- 5 cured by the Constitution and laws were not clearly 6 established at the time of their deprivation by the 7 agent or employee, or that at this time, the state of 8 the law was otherwise such that the agent or em- 9 ployee could not reasonably have been expected to 10 know whether his or her conduct was lawful. 11 ‘‘(d) In this section— 12 ‘‘(1) the term ‘court of competent jurisdiction’ 13 means— 14 ‘‘(A) the Supreme Court of the United 15 States; 16 ‘‘(B) a district court or court of appeals of 17 the United States that has jurisdiction over the 18 territory in which the deprivation occurred; or 19 ‘‘(C) a court of general jurisdiction of a 20 State, Territory, or District that has jurisdic- 21 tion over the territory in which the deprivation 22 occurred; 23 ‘‘(2) the term ‘covered action’ means an action 24 under subsection (a) against— 25 VerDate Sep 11 2014 16:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4036.IS S4036 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 4036 IS ‘‘(A) an agent or employee of a munici- 1 pality or other unit of local government acting 2 in his or her official capacity; or 3 ‘‘(B) a municipality or other unit of local 4 government; and 5 ‘‘(3) the term ‘defendant’ does not include— 6 ‘‘(A) a municipality or other unit of local 7 government; or 8 ‘‘(B) an individual employed by a munici- 9 pality or other unit of local government acting 10 in his or her official capacity.’’. 11 Æ VerDate Sep 11 2014 16:15 Jul 05, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\S4036.IS S4036 pbinns on DSKJLVW7X2PROD with BILLS