Ending Qualified Immunity Act

I 118TH CONGRESS 1ST SESSION H. R. 2847 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 HOUSE OF REPRESENTATIVES APRIL 25, 2023 Ms. PRESSLEY (for herself, Mrs. BEATTY, Mr. BLUMENAUER, Ms. BONAMICI, Mr. BOWMAN, Ms. BUSH, Mr. CARSON, Mr. CASAR, Mr. CLEAVER, Ms. CROCKETT, Mr. DAVIS of Illinois, Mr. ESPAILLAT, Mrs. FOUSHEE, Mr. FROST, Mr. GARCI´A of Illinois, Mr. GOMEZ, Mr. GREEN of Texas, Mr. IVEY, Ms. JACKSON LEE, Ms. JAYAPAL, Mr. JOHNSON of Georgia, Ms. KAMLAGER-DOVE, Mr. KHANNA, Ms. LEE of California, Ms. LEE of Pennsylvania, Mr. MCGOVERN, Mr. MOULTON, Ms. NORTON, Ms. OCASIO-CORTEZ, Ms. OMAR, Mr. PAYNE, Ms. PINGREE, Ms. SCHA- KOWSKY, Mr. SMITH of Washington, Mr. TAKANO, Ms. TLAIB, Ms. TOKUDA, Ms. VELA´ZQUEZ, Mrs. WATSON COLEMAN, Ms. WILLIAMS of Georgia, and Ms. WILSON of Florida) introduced the following bill; which was 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 VerDate Sep 11 2014 23:00 May 01, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2847.IH H2847 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 2847 IH SEC. 2. FINDINGS. 1 The Congress finds as follows: 2 (1) In 1871, Congress passed the Ku Klux 3 Klan Act to enforce the Fourteenth Amendment and 4 combat rampant violations of civil and constitu- 5 tionally secured rights across the Nation, particu- 6 larly those of newly freed slaves and other Black 7 Americans in the post-Civil War South. 8 (2) Included in the Act was a provision, now 9 codified at section 1983 of title 42, United States 10 Code, which provides a cause of action for persons 11 to file lawsuits against people acting under color of 12 State law, including State or local officials, who vio- 13 late their Federal legal and constitutionally secured 14 rights. 15 (3) Under section 1979 of the Revised Statutes 16 (42 U.S.C. 1983) a person may be held liable for 17 acting under color of State or local law, even if they 18 are not acting in accordance with State law. 19 (4) Section 1979 has never included a defense 20 or immunity for government officials who act in 21 good faith when violating rights, nor has it ever had 22 a defense or immunity based on whether the right 23 was ‘‘clearly established’’ at the time of the viola- 24 tion. 25 VerDate Sep 11 2014 23:00 May 01, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2847.IH H2847 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 2847 IH (5) From the law’s beginning in 1871, through 1 the 1960s, government actors were not afforded 2 qualified immunity for violating rights. 3 (6) In 1967, the Supreme Court in Pierson v. 4 Ray, 386 U.S. 547, suddenly found that government 5 actors had a good faith defense for making arrests 6 under unconstitutional statutes based on a common 7 law defense for the tort of false arrest. 8 (7) The Court later extended this beyond false 9 arrests, turning it into a general good faith defense 10 for government officials. 11 (8) Finally, in Harlow v. Fitzgerald, 457 U.S. 12 800 (1982), the Court found the subjective search 13 for good faith in the government actor unnecessary, 14 and replaced it with an ‘‘objective reasonableness’’ 15 standard that requires that the right be ‘‘clearly es- 16 tablished’’ at the time of the violation for the de- 17 fendant to be liable. 18 (9) This doctrine of qualified immunity has se- 19 verely limited the ability of many plaintiffs to re- 20 cover damages under section 1983 when their rights 21 have been violated by State and local officials. As a 22 result, the intent of Congress in passing the law has 23 been frustrated, and Americans’ rights secured by 24 VerDate Sep 11 2014 23:00 May 01, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2847.IH H2847 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 2847 IH the Constitution have not been appropriately pro- 1 tected. 2 SEC. 3. SENSE OF THE CONGRESS. 3 It is the sense of the Congress that we must correct 4 the erroneous interpretation of section 1979 of the Revised 5 Statutes which provides for qualified immunity, and reit- 6 erate the standard found on the face of the statute, which 7 does not limit liability on the basis of the defendant’s good 8 faith beliefs or on the basis that the right was not ‘‘clearly 9 established’’ at the time of the violation. 10 SEC. 4. REMOVAL OF QUALIFIED IMMUNITY. 11 Section 1979 of the Revised Statutes (42 U.S.C. 12 1983) is amended by adding at the end the following: ‘‘In 13 any suit pending on, or filed after, the effective date of 14 the Ending Qualified Immunity Act of 2021, it shall not 15 be a defense or immunity to any action brought under this 16 section that the defendant was acting in good faith, or 17 that the defendant believed, reasonably or otherwise, that 18 his or her conduct was lawful at the time when it was 19 committed. Nor shall it be a defense or immunity that the 20 rights, privileges, or immunities secured by the Constitu- 21 tion or Federal laws were not clearly established at the 22 time of their deprivation by the defendant, or that the 23 state of the law was otherwise such that the defendant 24 VerDate Sep 11 2014 23:00 May 01, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2847.IH H2847 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 2847 IH could not reasonably have been expected to know whether 1 his or her conduct was lawful.’’. 2 Æ VerDate Sep 11 2014 23:00 May 01, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6301 E:\BILLS\H2847.IH H2847 kjohnson on DSK79L0C42PROD with BILLS