[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1196 Introduced in Senate (IS)]

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118th CONGRESS
  1st Session
                                S. 1196

   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

                             April 19, 2023

 Mr. Markey (for himself, Mr. Sanders, and Ms. Warren) 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.

    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 
        enforce the 14th Amendment to the Constitution of the United 
        States and combat rampant violations of civil and 
        constitutionally secured rights across the United States, 
        particularly those of newly freed slaves and other Black people 
        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 persons acting under color 
        of law, including State and local officials, who violate their 
        Federal legal and constitutionally secured rights.
            (3) Under section 1983 a person may be held liable for 
        acting under color of State law, even if they are not acting in 
        accordance with State law.
            (4) 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.
            (5) From 1871 through the 1960s, government actors were not 
        afforded qualified immunity for violating rights.
            (6) 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.
            (7) 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.
            (8) 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.
            (9) The 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.
            (10) 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 CONGRESS.

    It is the sense of Congress that Congress must correct the 
erroneous interpretation of section 1979 of the Revised Statutes that 
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 
good-faith belief of the defendant 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--
            (1) by inserting ``(a)'' before ``Every person''; and
            (2) by adding at the end the following:
    ``(b) It shall not be a defense to any action pending on, or filed 
after, the date of enactment of this subsection that, at the time of 
the deprivation--
            ``(1) the defendant was acting in good faith;
            ``(2) the defendant believed, reasonably or otherwise, that 
        his or her conduct was lawful;
            ``(3) the rights, privileges, or immunities secured by the 
        Constitution and laws were not clearly established; or
            ``(4) 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.''.
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