[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 492 Introduced in Senate (IS)]

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117th CONGRESS
  1st Session
                                 S. 492

   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

                             March 1, 2021

 Mr. Markey (for himself, Ms. Warren, and Mr. Sanders) 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 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 ``Ending Qualified Immunity Act''.

SEC. 2. FINDINGS.

    The Congress finds as follows:
            (1) In 1871, Congress passed the Ku Klux Klan Act to 
        enforce the Fourteenth Amendment and combat rampant violations 
        of civil and constitutionally secured rights across the Nation, 
        particularly those of newly freed slaves and other Black 
        Americans in the post-Civil War South.
            (2) Included in the Act was a provision, now codified at 
        section 1983 of title 42, United States Code, which provides a 
        cause of action for persons to file lawsuits against people 
        acting under color of State law, including State or local 
        officials, who violate their Federal legal and constitutionally 
        secured rights.
            (3) Under section 1979 of the Revised Statutes (42 U.S.C. 
        1983) a person may be held liable for acting under color of 
        State or local law, even if they are not acting in accordance 
        with State law.
            (4) Section 1979 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.
            (5) From the law's beginning in 1871, through the 1960s, 
        government actors were not afforded qualified immunity for 
        violating rights.
            (6) In 1967, the Supreme Court in Pierson v. Ray, 386 U.S. 
        547, suddenly 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.
            (7) The Court later extended this beyond false arrests, 
        turning it into a general good faith defense for government 
        officials.
            (8) Finally, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), 
        the Court 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.
            (9) 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. As a result, the intent of Congress in passing 
        the law has been frustrated, and Americans' rights secured by 
        the Constitution have not been appropriately protected.

SEC. 3. SENSE OF THE CONGRESS.

    It is the sense of the Congress that we must correct the erroneous 
interpretation of section 1979 of the Revised Statutes which provides 
for qualified immunity, and reiterate the standard found on the face of 
the statute, which does not limit liability on the basis of the 
defendant's good faith beliefs or on the basis that the right was not 
``clearly established'' at the time of the violation.

SEC. 4. REMOVAL OF QUALIFIED IMMUNITY.

    Section 1979 of the Revised Statutes (42 U.S.C. 1983) is amended by 
adding at the end the following: ``In any suit pending on, or filed 
after, the effective date of the Ending Qualified Immunity Act of 2021, 
it shall not be a defense or immunity to any action brought under this 
section that the defendant was acting in good faith, or that the 
defendant believed, reasonably or otherwise, that his or her conduct 
was lawful at the time when it was committed. Nor shall it be a defense 
or immunity that the rights, privileges, or immunities secured by the 
Constitution or Federal laws were not clearly established at the time 
of their deprivation by the defendant, or that the state of the law was 
otherwise such that the defendant could not reasonably have been 
expected to know whether his or her conduct was lawful.''.
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