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.
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