Today, Senator Mike Braun (R‑IN) announced that he will be introducing the “Reforming Qualified Immunity Act.” While many other Republicans have already expressed interest in addressing qualified immunity, Senator Braun is the first Republican in the Senate to put forward or join a concrete legislative proposal to fix this egregious doctrine. In contrast to the Amash-Pressley “Ending Qualified Immunity Act,” Senator Braun’s bill would not wholly abolish all vestiges of the doctrine. But it is a significant proposal that meaningfully acknowledges and corrects the most fundamental injustices of qualified immunity. Here’s how it works:
By way of background, Section 1983 — the federal statute that was intended to allow people to sue government officials who violate their constitutional rights — provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects … any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law .…
In other words, the statute says that anyone acting “under color of” state law — i.e., any state actor — who violates someone’s rights “shall be liable to the party injured.” The statute says nothing about any immunities, and as Professor Will Baude has explained in detail, the common-law history against which this statute was passed did not include any across-the-board immunities for all public officials. But the Supreme Court effectively rewrote this statute by inserting the phrase “clearly established” between “any” and “rights.” Legislative solutions to qualified immunity therefore need to amend Section 1983 to say, in essence, that the statute actually means what it says.
So with that in mind, let’s look at the operative text of Senator Braun’s bill, which amends Section 1983 as follows. To begin, it says:
(b)(1) Except as provided in paragraph (2), it shall not be a defense to any action brought under this section [i.e., under Section 1983] 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.
This language, which closely mirrors the exact language used in both the “Ending Qualified Immunity Act” and the “Justice in Policing Act,” effectively eliminates qualified immunity in its present form (i.e., the “clearly established law” standard), and also clarifies that a defendant’s subjective belief in the legality of their conduct is not enough, on its own, to let them avoid liability for violating someone’s rights. Note also that while the “Justice in Policing Act,” as amended, only eliminates qualified immunity for law enforcement, Senator Braun’s bill, like the Amash-Pressley bill, eliminates qualified immunity for all public officials.
However, Senator Braun’s “Reforming Qualified Immunity Act” then goes on to create safe-harbor provisions that would allow defendants to avoid liability under two sets of conditions. I’m not going to quote the entire text of the bill here (it gets pretty technical), but to summarize, defendants would be able to avoid liability under the following two sets of circumstances:
- If the defendant could show that, at the time they were alleged to have violated someone’s rights, (1) their challenged conduct was specifically authorized by a federal or state statute, or federal regulation, (2) no court had held that this statute or regulation was unconstitutional, and (3) they had a reasonable, good-faith belief that their actions were lawful.
- If the defendant could show that, at the time they were alleged to have violated someone’s rights, (1) their challenged conduct was specifically authorized by then-applicable judicial precedent, and (2) they had a reasonable, good-faith belief that their actions were lawful.
One way to think about these safe-harbor provisions is that they effectively reverse the current application of the “clearly established law” standard. Today, for a civil-rights plaintiff to get redress for a violation of their rights, they have to find prior case law specifically saying that the defendant was not allowed to commit the particular misconduct at issue. Under Senator Braun’s proposal, a defendant who committed misconduct would be liable, unless they could show a prior case or statute authorizing their conduct.
To be clear, there are reasonable arguments that public officials, especially members of law enforcement, should not be able to avoid liability even under these conditions. Executive officers—no less than legislators or judges—have an independent obligation to enforce and respect constitutional limitations, and Section 1983 was originally passed on the explicit understanding that state actors who enforced unconstitutional statutes would be liable. And if an individual’s constitutional rights are violated, they deserve a remedy, whether or not that the injury was the product of an unconstitutional statute.
Still, one can understand the seeming unfairness in holding defendants personally liable when the only conduct alleged to be unlawful was executing a statute they reasonably believed to be valid, or following judicial precedent that was applicable at the time. To that end, Senator Braun’s compromise proposal preserves immunity in those relatively rare—but more sympathetic—cases in which defendants are specifically acting in accordance with clearly established law, but it would still have a major effect on run-of-the-mill civil rights claims, which are typically fact and context-specific and would not fall within one of these “safe harbor” provisions.
Somewhat surprisingly, Senator Braun’s bill also includes a provision that would make local governments directly liable anytime their municipal employees committed constitutional violations. Under current case law, the Supreme Court has held that while local governments can be sued under Section 1983, the government itself must have had a specific “policy or practice” that caused the harm — in other words, local governments are not subject to the rule of respondeat superior (“let the master answer”), where they are liable simply because their employees are. But Senator Braun’s bill would change this state of affairs, by clarifying that “a municipality or other unit of local government shall be liable for a violation … by an agent or employee of the municipality or other unit of local government acting within the scope of his or her employment.”
This is, to put it mildly, a very ambitious proposal. On the one hand, there’s a reasonable argument that the Supreme Court erred in concluding that respondeat superior doesn’t apply to Section 1983 claims (see Justice Stevens’ dissent here), and in an ideal world, municipal liability could help augment the deterrent and remedial effects of eliminating qualified immunity. But on the other, this particular proposal has far received far less attention and research than the proposal to eliminate qualified immunity itself, and its potential effects are highly uncertain. After all, making every municipality directly liable for the unconstitutional actions of their employees has pretty major financial implications. While I think it’s worth studying this idea going forward, I’m skeptical that it’s going to get much traction in the current political dialogue on qualified immunity.
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In conclusion, Senator Braun’s bill represents a major step forward in the larger discussion about police accountability in general, and qualified immunity in particular. There’s a reasonable debate to be had on whether we should eliminate qualified immunity entirely, or repeal-and-replace it with something limited and principled. I maintain that complete elimination is the most just and sensible policy option, but I also recognize that Senator Braun’s safe-harbor provisions could be appealing to the many Republicans who have expressed interest in compromise solutions. I don’t purport to have any special insight on how the political dynamics here will shake out, but I look forward to the discussion.
Nevertheless, putting aside the details, the bottom line is that no policing reforms will be meaningful if they don’t fix qualified immunity. We can legislate all the rules for law enforcement that we want, but if police officers can break those rules with impunity, then those rules aren’t actually doing us any good. Senator Braun’s bill shows that he recognizes this point, and it’s a clear indication that the rest of Senate won’t be able to ignore it either.
