With the Supreme Court denying various cert petitions that asked the Court to reconsider qualified immunity, the ball is definitely now in Congress’s court—where Aaron Nielson and I have argued such reform calls should be directed in light of statutory stare decisis—as well as in that of state legislatures, as we explore in Part IV of our latest paper.

In this post, I briefly outline and compare the three legislative proposals released to date, as well as suggest three narrower alternatives that may be more likely to garner broader bipartisan support.

Legislative Proposals To Date

As of this writing, there are three legislative proposals to reform qualified immunity. I’ll discuss them in the order of the substantial effect they would have on existing doctrine.

1. The Amash-Pressely Ending Qualified Immunity Act

Representatives Justin Amash (L-Mich.) and Ayanna Pressley (D-Mass.) have proposed the Ending Qualified Immunity Act. This legislation would create a very broad and unambiguous elimination of qualified immunity or any sort of related good faith defense under Section 1983. Indeed, it seems broad enough to allow for monetary damages even when an officer follows binding circuit-court or Supreme Court precedent that is later overturned as well as for officers who follow state law that is later deemed unlawful under federal law.

The Amash-Pressley proposal is unlikely to garner bipartisan support. Among other things, eliminating qualified immunity has the potential to impose substantial economic and other costs on state and local governments, which by state law, municipal ordinance, and/or employment contract defend and indemnify officers for monetary liability under Section 1983. Many members of Congress may worry about the financial implications of such sweeping reform for their states and localities, and even more so in the COVID-19 era when state and local government budgets have been decimated.

2. The Braun Reforming Qualified Immunity Act

Yesterday Senator Mike Braun (R-IN) announced he will introduce the Reforming Qualified Immunity Act. Like the Amash-Pressley proposal, the Braun proposal would broadly eliminate qualified immunity under Section 1983, but it would carve out two narrow yet potentially important exceptions to address the concerns I raised above. Jay Schweikert from CATO nicely summarizes the two exceptions:

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.

These narrow exceptions from monetary liability for state and local government officers will likely need to be included in any proposed legislation that has a chance of garnering bipartisan support. These exceptions, however, would likely do little to address the economic costs of the reform proposal on state and local governments.

3. Democrats’ Justice in Policing Act

The narrowest qualified immunity legislation reform announced to date is included in the larger Justice in Policing Act, which has been advanced by Democrats in the House and Senate. This legislation would only eliminate qualified immunity for law enforcement and prison officers, as opposed to every person acting under the color of state or local law. In other words, it would not eliminate qualified immunity for other state and local government employees, such as public school teachers, social workers, and the numerous other government employees who are not involved in law enforcement or prison operations.

This legislative proposal seems more narrowly tailored to address the current calls for police reform and accountability. The Braun proposal’s two exceptions do not seem to frustrate those objectives, and would likely need to be added if the goal here is to garner more bipartisan support.

To be clear, even this narrower proposal focused on law enforcement and prison officers would still be a dramatic change to existing law, which could potentially create significant economic (and other) costs on cash-strapped state and local governments that generally indemnify their employees in Section 1983 actions. In this post, I don’t intend to enter the policy debate of weighing the costs and benefits of the potential reforms, which would exceed my areas of expertise. My goal here is to just outline and compare the various potential legislative reforms as well as narrower reforms that could potentially garner broader bipartisan support in Congress.

Other Potential, Narrower Legislative Reforms

There are a number of other ways Congress could reform qualified immunity in ways narrower than the above three proposals, which may have a better chance of garnering broader bipartisan support. I’ll mention three here.

1. Exclude Qualified Immunity for Excessive Force Claims (or Deadly Force Claims More Narrowly, or Fourth Amendment Claims More Broadly)

The first approach would be to focus on the constitutional violation or conduct at issue, instead of the officer. Limiting the elimination of qualified immunity to just a subset of conduct like excessive force—instead of all conduct by a particular set of state actors—would allow law enforcement officers to have qualified immunity for other difficult decisions they have to make in the line of duty, such as decisions that may affect novel issues under the First and Second Amendments at protests and other gatherings. In so doing, it would also limit somewhat the potential liability state and local governments would assume through indemnification.

At the same time, it would apply more broadly than the Justice in Policing Act to eliminate qualified immunity for any state actor that exercises excessive force. That would seem more consistent with how absolute immunity works in the context of legislative and judicial actions, where the focus is not on the state actor’s title and position (legislator or judge), but instead on the state action at issue (the exercise of legislative or judicial functions).

Here’s what that legislation could potentially look like:

Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended by adding at the end the following: ‘‘It shall not be a defense or immunity to any action brought under this section for claims of excessive force under the Fourth Amendment that—

‘‘(1) the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed; or

‘‘(2) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established at the time of their deprivation by the defendant, or that at that time, the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.’’

To broaden this to any Fourth Amendment claim—including both excessive force and unreasonable searches and seizures more generally—just delete the words “of excessive force” from the first sentence. If one wanted to narrow the coverage to just deadly force, the language could read “any action brought under this section for wrongful death based on claims of excessive force under the Fourth Amendment.”

Modifying Section 1983 to depart from the general rules for certain claims is not unprecedented. The Prison Litigation Reform Act (PLRA) carved out claims “brought with respect to prison condition under section 1983” for special treatment—in that context in ways that further protected state defendants from lawsuits brought by prisoners. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”).

The elimination of qualified immunity for claims of excessive force would not leave officers with no defense for reasonable actions. After all, for a plaintiff to succeed on a claim for excessive force, the plaintiff must prove that the officer’s use of force was unreasonable or excessive. As the Supreme Court explained in Graham v. O’Connor, “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

2. Overrule Harlow v. Fitzgerald and Reestablish Subjective Intent Standard

The elimination of qualified immunity for excessive force claims may be too broad of a reform to garner bipartisan support, especially in our current economic reality with state and local government budgets and the fact that state and local officials would be liable for good-faith mistakes. A narrower reform would be to strip officers of qualified immunity when they acted in bad faith.

In other words, this would reverse the Supreme Court’s decision in Harlow v. Fitzgerald, which eliminated the “subjective intent” standard for qualified immunity. Here’s what that legislative proposal could look like:

Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended by adding at the end the following: ‘‘A person shall not be entitled to a qualified immunity from civil liability under this section if the person—

“(1) knew or reasonably should have known that the conduct at issue would cause a deprivation of clearly established rights, privileges, or immunities secured by the Constitution and laws, or

“(2) committed the conduct with the malicious intention to cause a deprivation of the rights, privileges, or immunities secured by the Constitution and laws.”

The first provision captures the Supreme Court’s current “objective intent” approach to qualified immunity. The second provision goes beyond the current approach to reinstate the more plaintiff-friendly “subjective intent” exception to qualified immunity, which the Supreme Court eliminated in Harlow v. Fitzgerald, 457 U.S. 800, 815–19 (1982).

The Harlow Court eliminated the “subjective intent” exception to qualified immunity because it was concerned that the ease of pleading subjective intent went against the immunity’s purpose of shielding state actors from not just monetary liability but also from the costs of defending the lawsuit—i.e., that “insubstantial claims should not proceed to trial.” In the years since Harlow, this concern may have been mitigated somewhat by the Court’s decisions in Bell Atlantic Corp. v. Twombly and Iqbal v. Ashcroft, which held that a plaintiff must not just plead specific factual details that establish that the alleged conduct is “conceivable”; it must be “plausible.”

3. Codify the More Plaintiff-Friendly Hope v. Pelzer Standard

A final, narrower reform would focus on how the Supreme Court has defined what is required for law to be “clearly established” under it current “objective intent” approach to qualified immunity. Much criticism has been raised against the Court’s current approach of requiring binding judicial precedent that is directly on point in order create “clearly established” law, as opposed to judicial precedent that articulates general principles that provide fair notice to state actors that their conduct would be unlawful. Justice Stevens advanced this criticism powerfully in his opinion for the Court in Hope v. Pelzer.

Here’s one way to frame that legislative reform:

Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended by adding at the end the following: ‘‘A person shall not be entitled to a qualified immunity from civil liability under this section unless the person lacked fair notice that the person’s conduct was unlawful at the time it was committed. Fair notice does not necessarily require a binding precedent by the Supreme Court or the relevant U.S. Court of Appeals that is based on fundamentally or materially similar facts. A general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the specific action in question has not previously been held unlawful.”

This reform would codify Justice Stevens’s approach to qualified immunity in Hope v. Pelzer, 536 U.S. 730, 739–41 (2002). Indeed, much of this language is lifted directly from Justice Stevens’s opinion.

In sketching out these potential legislative reforms, I do not mean to suggest this is an exhaustive list. Indeed, I could imagine legislation that combines a number of these proposals, such as the Braun proposal’s exceptions with any or all three of the alternative proposals I’ve outlined.

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Update: As a couple former students reminded me on Twitter shortly after tweeting out the post, this post is basically an answer to one of the questions on their Constitutional Litigation exam in 2019. In case readers are curious, here’s the exam question prompt: