Senators Edward J. Markey (D-Mass.), Bernie Sanders (I-Vt.), and Elizabeth Warren (D-Mass.) today introduced the Ending Qualified Immunity Act to eliminate qualified immunity and provide for accountability when public officials, including police officers, violate Americans' constitutional rights. The legislation comes in the wake of the murders of George Floyd, Breonna Taylor, and countless other Black and Brown Americans at the hands of law enforcement. Representatives Justin Amash (MI-03) and Ayanna Pressley (MA-07) first introduced the legislation in the House of Representatives.
Qualified immunity is a judge-made doctrine that protects law enforcement officers from being sued in their personal capacity and being held personally liable for their excessive use of force or brutality. In its passage of the Civil Rights Act of 1871, Congress expressly allowed for individuals to sue public officials, including police officers, who deprive them of their civil rights. But in the century and a half since, the Supreme Court has gutted this landmark law. It created, and then allowed lower courts to expand, the novel defense of so-called qualified immunity for police officers.
"Qualified immunity makes it almost impossible for a victim of excessive force by a police officer to hold that officer accountable in a court of law. That must end," said Senator Markey. "If we want to change the culture of police violence against Black and Brown Americans, then we need to start holding accountable the officers who abuse their positions of trust and responsibility in our communities. That means once-and-for-all abolishing the dangerous judicial doctrine known as qualified immunity. I thank Senators Sanders and Warren for their partnership on this important legislation."
"At a time when unprecedented numbers of people are demanding an end to police murder, brutality, and impunity, we have got to finally abolish "qualified immunity'," said Senator Sanders. "This is not a radical idea: Police officers must be held fully accountable for abuses they commit--no one is above the law. If we are serious about real police reform, the Senate has got to pass our Ending Qualified Immunity Act."
"Ending the racist violence that has stolen far too many Black lives must begin with accountability," said Senator Warren. "For too long, qualified immunity has shielded police officers who have engaged in unconstitutional and appalling conduct from being held accountable in court--it's past time to end this doctrine. I'm proud to join my colleagues in cosponsoring this bill and putting forward reforms to help end the systemic racism that plagues policing in America."
A copy of the legislation can be found HERE.
The legislation codifies that the qualified immunity doctrine is not grounds for defense for officers that violate the law. Specifically, the legislation:
Amends 42 U.S.C. § 1983 ("Section 1983") to explicitly state that the qualified immunity doctrine invented by the Supreme Court does not provide public officials that violate civil rights with defense or immunity from civil liability for their actions; and
Clarifies Congress' original intent for Section 1983 and notes the history and necessity of this protection.
Qualified immunity affects people of color disproportionately because they are disproportionately victims of excessive force at the hands of law enforcement. According to a National Academy of Sciences study, Black men are two-and-a-half times more likely to be killed by law enforcement over their lifetime than white men. Over the course of their lives, approximately one in every 1,000 Black men can expect to be killed by police.
The standard that the courts have created effectively immunizes law enforcement officers from civil suit unless a prior court case has "clearly established" that the challenged use of excessive force is illegal. In other words, under qualified immunity, the police are immune from liability unless the person whose rights they violated can show that there is a previous case in the same jurisdiction, involving the exact same facts, in which a court deemed the actions to be a constitutional violation.