[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4036 Introduced in Senate (IS)]

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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 section 1979, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Reforming Qualified Immunity Act''.

SEC. 2. FINDINGS.

    The Congress finds the following:
            (1) Congress passed the Act of April 20, 1871 (commonly 
        known as the ``Ku Klux Klan Act''; 17 Stat. 13, chapter 22), to 
        combat rampant violations of civil and constitutionally secured 
        rights across the nation, particularly in the post-Civil War 
        South.
            (2) Included in that Act was a provision, now codified at 
        section 1979 of the Revised Statues (in this section referred 
        to as ``section 1983''), which provides a cause of action for 
        individuals to file lawsuits against State and local officials 
        who violate their legal and constitutionally secured rights.
            (3) Section 1983 has never included a defense or immunity 
        for government officials who act in good faith when violating 
        rights, nor has it ever had a defense or immunity based on 
        whether the right was ``clearly established'' at the time of 
        the violation.
            (4) From the law's beginning in 1871, through the 1960s, 
        government actors were not afforded qualified immunity for 
        violating rights.
            (5) The Supreme Court of the United States in Pierson v. 
        Ray, 386 U.S. 547 (1967), found that government actors had a 
        good-faith defense for making arrests under unconstitutional 
        statutes based on a common-law defense for the tort of false 
        arrest.
            (6) The Supreme Court of the United States later extended 
        the good-faith defense beyond false arrests, turning it into a 
        general good-faith defense for government officials.
            (7) Finally, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), 
        the Supreme Court of the United States found the subjective 
        search for good faith in the government actor unnecessary, and 
        replaced it with an ``objective reasonableness'' standard that 
        requires that the right be ``clearly established'' at the time 
        of the violation for the defendant to be liable.
            (8) This doctrine of qualified immunity has severely 
        limited the ability of many plaintiffs to recover damages under 
        section 1983 when their rights have been violated by State and 
        local officials.
            (9) As a result, the intent of Congress in passing section 
        1983 has been frustrated, and the rights secured by the 
        Constitution of the United States have not been appropriately 
        protected.

SEC. 3. SENSE OF THE CONGRESS.

    It is the sense of the Congress that Congress must correct the 
erroneous interpretation of section 1979 of the Revised Statutes and 
reform the court-created doctrine of qualified immunity.

SEC. 4. REFORM OF QUALIFIED IMMUNITY.

    Section 1979 of the Revised Statutes (42 U.S.C. 1983) is amended--
            (1) by inserting ``(a)'' before ``Every person''; and
            (2) by adding at the end the following:
    ``(b)(1) Except as provided in paragraph (2), it shall not be a 
defense to any action brought under this section that, at the time of 
the deprivation--
            ``(A) the defendant was acting in good faith;
            ``(B) the defendant believed, reasonably or otherwise, that 
        his or her conduct was lawful;
            ``(C) the rights, privileges, or immunities secured by the 
        Constitution and laws were not clearly established; or
            ``(D) the state of the law was such that the defendant 
        could not reasonably have been expected to know whether his or 
        her conduct was lawful.
    ``(2) A defendant sued in his or her individual capacity under this 
section shall not be liable if the defendant establishes that, at the 
time the deprivation occurred--
            ``(A)(i) the conduct alleged to be unlawful was 
        specifically authorized or required by a Federal statute or 
        regulation, or by a statute passed by the primary legislative 
        body of the State, Territory, or District of Columbia in which 
        the conduct was committed;
            ``(ii) no court of competent jurisdiction had issued a 
        final decision on the merits holding, without reversal, 
        vacatur, or preemption, that the provision or provisions of the 
        statute or regulation authorizing or requiring such conduct 
        were inconsistent with the Constitution or Federal laws; and
            ``(iii) the defendant reasonably believed that his or her 
        conduct was in conformance with the Constitution of the United 
        States and Federal laws; or
            ``(B)(i) a court of competent jurisdiction had issued a 
        final decision on the merits holding, without reversal, 
        vacatur, or preemption, that the specific conduct alleged to be 
        unlawful was consistent with the Constitution of the United 
        States and Federal laws; and
            ``(ii) the defendant reasonably believed that his or her 
        conduct was in conformance with the Constitution of the United 
        States and Federal laws.
    ``(c)(1) In a covered action, a municipality or other unit of local 
government shall be liable for a violation of subsection (a) by an 
agent or employee of the municipality or other unit of local government 
acting within the scope of his or her employment.
    ``(2) It shall not be a defense to a covered action described in 
paragraph (1) that--
            ``(A) the agent or employee was acting in good faith, or 
        that the agent or employee believed, reasonably or otherwise, 
        that his or her conduct was lawful at the time when it was 
        committed; or
            ``(B) the rights, privileges, or immunities secured by the 
        Constitution and laws were not clearly established at the time 
        of their deprivation by the agent or employee, or that at this 
        time, the state of the law was otherwise such that the agent or 
        employee could not reasonably have been expected to know 
        whether his or her conduct was lawful.
    ``(d) In this section--
            ``(1) the term `court of competent jurisdiction' means--
                    ``(A) the Supreme Court of the United States;
                    ``(B) a district court or court of appeals of the 
                United States that has jurisdiction over the territory 
                in which the deprivation occurred; or
                    ``(C) a court of general jurisdiction of a State, 
                Territory, or District that has jurisdiction over the 
                territory in which the deprivation occurred;
            ``(2) the term `covered action' means an action under 
        subsection (a) against--
                    ``(A) an agent or employee of a municipality or 
                other unit of local government acting in his or her 
                official capacity; or
                    ``(B) a municipality or other unit of local 
                government; and
            ``(3) the term `defendant' does not include--
                    ``(A) a municipality or other unit of local 
                government; or
                    ``(B) an individual employed by a municipality or 
                other unit of local government acting in his or her 
                official capacity.''.
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