[Congressional Record Volume 166, Number 102 (Tuesday, June 2, 2020)]
[Senate]
[Pages S2651-S2652]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 SENATE RESOLUTION 602--RECOGNIZING THAT THE MURDER OF GEORGE FLOYD BY 
    OFFICERS OF THE MINNEAPOLIS POLICE DEPARTMENT IS THE RESULT OF 
PERVASIVE AND SYSTEMIC RACISM THAT CANNOT BE DISMANTLED WITHOUT, AMONG 
               OTHER THINGS, PROPER REDRESS IN THE COURTS

  Mr. BOOKER (for Mr. Markey (for himself, Mr. Booker, Ms. Warren, Mr. 
Van Hollen, and Mr. Sanders)) submitted the following resolution; which 
was referred to the Committee on the Judiciary:

                              S. Res. 602

       Whereas Black people in the United States are 
     disproportionately the victims of shootings, chokeholds, and 
     other uses of excessive force by law enforcement officers;
       Whereas the use of excessive force during an arrest or 
     investigatory stop constitutes an unreasonable seizure under 
     the Fourth Amendment to the Constitution of the United 
     States, which guarantees the right of every person in the 
     United States to be free from unreasonable searches and 
     seizures at the hands of law enforcement officers;
       Whereas the use of excessive force during a period of 
     pretrial detention constitutes the deprivation of due process 
     under the Fifth and 14th Amendments to the Constitution of 
     the United States, which guarantee the right of every person 
     in the United States to be free from arbitrary interference 
     with the liberty of that person at the hands of law 
     enforcement officers;
       Whereas the use of excessive force during a term of 
     imprisonment constitutes the use of cruel and unusual 
     punishment under the Eighth Amendment to the Constitution of 
     the United States, which guarantees the right of every person 
     in the United States to be free from cruel and unusual 
     punishment at the hands of law enforcement officers;
       Whereas section 1979 of the Revised Statutes (42 U.S.C. 
     1983), which is derived from the first section of the Act of 
     April 20, 1871 (commonly known as and referred to in this 
     preamble as the ``Civil Rights Act of 1871'') (17 Stat. 13, 
     chapter 22), makes liable ``every person'', including police 
     officers, correctional officers, and other law enforcement 
     officers, who, under color of law, deprives another person of 
     civil rights;
       Whereas the judicial doctrine of qualified immunity wrongly 
     and unjustly precludes the victims of police violence from 
     vindicating the rights of those victims under section 1979 of 
     the Revised Statutes (42 U.S.C. 1983)--
       (1) by effectively immunizing law enforcement officers from 
     civil suit unless a prior court case has ``clearly 
     established'' that the challenged use of excessive force is 
     illegal; and
       (2) by narrowly construing the ``clearly established'' 
     standard so that any factual or contextual distinctions 
     between the challenged use of excessive force and the use of 
     excessive force in a prior case, even small or insignificant 
     distinctions, are cause for qualified immunity with respect 
     to the challenged use of excessive force;
       Whereas the defense of qualified immunity has no historical 
     common law basis;
       Whereas the intent of Congress in enacting the Civil Rights 
     Act of 1871 was to hold State and local law enforcement 
     officers accountable for intimidating, harming, and murdering 
     Black people in the United States after the Civil War;
       Whereas, in 2017, Supreme Court Justice Clarence Thomas 
     recognized that the defense

[[Page S2652]]

     of qualified immunity has no textual basis in section 1979 of 
     the Revised Statutes (42 U.S.C. 1983) and thereby represents 
     ``precisely the sort of freewheeling policy choice'' that 
     courts ``have previously disclaimed the power to make'';
       Whereas the courts of appeals of the United States are more 
     likely than not to grant qualified immunity to law 
     enforcement officers;
       Whereas, in 2018, Supreme Court Justice Sonia Sotomayor 
     acknowledged that the Supreme Court of the United States 
     ``routinely displays an unflinching willingness'' to reverse 
     decisions of the courts of appeals of the United States 
     denying qualified immunity to law enforcement officers;
       Whereas the lack of accountability that results from 
     qualified immunity arouses frustration, disappointment, and 
     anger throughout the United States, which discredits and 
     endangers the vast majority of law enforcement officers, who 
     do not engage in the use excessive force;
       Whereas a civil action under section 1979 of the Revised 
     Statutes (42 U.S.C. 1983) is often the only viable solution 
     for victims of police violence and the families of those 
     victims to hold law enforcement officers accountable for the 
     use of excessive force because criminal prosecutors are 
     reluctant to charge, and juries are hesitant to convict, law 
     enforcement officers; and
       Whereas the Government of the United States has established 
     itself as a government of laws, and not of men, but will 
     cease to be so if it does not furnish a viable remedy for all 
     civil rights violations: Now, therefore, be it
       Resolved, That the Senate--
       (1) recognizes and acknowledges the legal and racial 
     inequities inherent in the judicial doctrine of qualified 
     immunity as that doctrine is applied to law enforcement 
     officers;
       (2) recognizes and acknowledges that the doctrine of 
     qualified immunity rests on a mistaken judicial 
     interpretation of a statute enacted by Congress; and
       (3) recognizes and acknowledges that, to correct that 
     mistaken judicial interpretation, Congress should amend 
     section 1979 of the Revised Statutes (42 U.S.C. 1983) to 
     eliminate the qualified immunity defense for law enforcement 
     officers as that defense exists as of June 1, 2020.

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