Ending Qualified Immunity Act

II 116TH CONGRESS 2D SESSION S. 4142 To amend the Revised Statutes to remove 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 JULY 1, 2020 Ms. WARREN (for Mr. MARKEY (for himself, Mr. SANDERS, and Ms. WAR- REN)) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend the Revised Statutes to remove 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 ‘‘Ending Qualified Im- 4 munity Act’’. 5 SEC. 2. FINDINGS. 6 The Congress finds as follows: 7 (1) In 1871, Congress passed the Ku Klux 8 Klan Act to combat rampant violations of civil and 9 VerDate Sep 11 2014 00:57 Jul 12, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4142.IS S4142 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 4142 IS constitutionally secured rights across the nation, 1 particularly in the post-Civil War South. 2 (2) Included in the act was a provision, now 3 codified at section 1983 of title 42, United States 4 Code, which provides a cause of action for individ- 5 uals to file lawsuits against State and local officials 6 who violate their legal and constitutionally secured 7 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) In 1967, the Supreme Court in Pierson v. 18 Ray, 386 U.S. 547, suddenly found that government 19 actors had a good faith defense for making arrests 20 under unconstitutional statutes based on a common 21 law defense for the tort of false arrest. 22 (6) The Court later extended this beyond false 23 arrests, turning it into a general good faith defense 24 for government officials. 25 VerDate Sep 11 2014 00:57 Jul 12, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4142.IS S4142 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 4142 IS (7) Finally, in Harlow v. Fitzgerald, 457 U.S. 1 800 (1982), the Court found the subjective search 2 for good faith in the government actor unnecessary, 3 and replaced it with an ‘‘objective reasonableness’’ 4 standard that requires that the right be ‘‘clearly es- 5 tablished’’ at the time of the violation for the de- 6 fendant to be liable. 7 (8) This doctrine of qualified immunity has se- 8 verely limited the ability of many plaintiffs to re- 9 cover damages under section 1983 when their rights 10 have been violated by State and local officials. As a 11 result, the intent of Congress in passing the law has 12 been frustrated, and Americans’ rights secured by 13 the Constitution have not been appropriately pro- 14 tected. 15 SEC. 3. SENSE OF THE CONGRESS. 16 It is the sense of the Congress that we must correct 17 the erroneous interpretation of section 1983 which pro- 18 vides for qualified immunity, and reiterate the standard 19 found on the face of the statute, which does not limit li- 20 ability on the basis of the defendant’s good faith beliefs 21 or on the basis that the right was not ‘‘clearly established’’ 22 at the time of the violation. 23 VerDate Sep 11 2014 00:57 Jul 12, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4142.IS S4142 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 4142 IS SEC. 4. REMOVAL OF QUALIFIED IMMUNITY. 1 Section 1979 of the Revised Statutes (42 U.S.C. 2 1983) is amended by adding at the end the following: ‘‘It 3 shall not be a defense or immunity to any action brought 4 under this section that the defendant was acting in good 5 faith, or that the defendant believed, reasonably or other- 6 wise, that his or her conduct was lawful at the time when 7 it was committed. Nor shall it be a defense or immunity 8 that the rights, privileges, or immunities secured by the 9 Constitution or laws were not clearly established at the 10 time of their deprivation by the defendant, or that the 11 state of the law was otherwise such that the defendant 12 could not reasonably have been expected to know whether 13 his or her conduct was lawful.’’. 14 Æ VerDate Sep 11 2014 00:57 Jul 12, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6301 E:\BILLS\S4142.IS S4142 pbinns on DSKJLVW7X2PROD with BILLS