II 

117TH CONGRESS 

1ST SESSION S. 492 

To amend the Revised Statutes to remove the defense of qualified immunity 

in the case of any action under section 1979, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 1, 2021 

Mr. MARKEY (for himself, Ms. WARREN, and Mr. SANDERS) introduced the 

following bill; which was read twice and referred to the Committee on the 

Judiciary 

A BILL 

To amend the Revised Statutes to remove the defense of 

qualified immunity in the case of any action under section 1979, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Ending Qualified Im5 munity Act’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds as follows: 

8 (1) In 1871, Congress passed the Ku Klux 

9 Klan Act to enforce the Fourteenth Amendment and 


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1 combat rampant violations of civil and constitu2 tionally secured rights across the Nation, particu3 larly those of newly freed slaves and other Black 

4 Americans in the post-Civil War South. 

5 (2) Included in the Act was a provision, now 

6 codified at section 1983 of title 42, United States 

7 Code, which provides a cause of action for persons 

8 to file lawsuits against people acting under color of 

9 State law, including State or local officials, who vio10 late their Federal legal and constitutionally secured 

11 rights. 

12 (3) Under section 1979 of the Revised Statutes 

13 (42 U.S.C. 1983) a person may be held liable for 

14 acting under color of State or local law, even if they 

15 are not acting in accordance with State law. 

16 (4) Section 1979 has never included a defense 

17 or immunity for government officials who act in 

18 good faith when violating rights, nor has it ever had 

19 a defense or immunity based on whether the right 

20 was ‘‘clearly established’’ at the time of the viola21 tion. 

22 (5) From the law’s beginning in 1871, through 

23 the 1960s, government actors were not afforded 

24 qualified immunity for violating rights. 


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1 (6) In 1967, the Supreme Court in Pierson v. 

2 Ray, 386 U.S. 547, suddenly found that government 

3 actors had a good faith defense for making arrests 

4 under unconstitutional statutes based on a common 

5 law defense for the tort of false arrest. 

6 (7) The Court later extended this beyond false 

7 arrests, turning it into a general good faith defense 

8 for government officials. 

9 (8) Finally, in Harlow v. Fitzgerald, 457 U.S. 

10 800 (1982), the Court found the subjective search 

11 for good faith in the government actor unnecessary, 

12 and replaced it with an ‘‘objective reasonableness’’ 

13 standard that requires that the right be ‘‘clearly es14 tablished’’ at the time of the violation for the de15 fendant to be liable. 

16 (9) This doctrine of qualified immunity has se17 verely limited the ability of many plaintiffs to re18 cover damages under section 1983 when their rights 

19 have been violated by State and local officials. As a 

20 result, the intent of Congress in passing the law has 

21 been frustrated, and Americans’ rights secured by 

22 the Constitution have not been appropriately pro23 tected. 


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1 SEC. 3. SENSE OF THE CONGRESS. 

2 It is the sense of the Congress that we must correct 

3 the erroneous interpretation of section 1979 of the Revised 

4 Statutes which provides for qualified immunity, and reit5 erate the standard found on the face of the statute, which 

6 does not limit liability on the basis of the defendant’s good 

7 faith beliefs or on the basis that the right was not ‘‘clearly 

8 established’’ at the time of the violation. 

9 SEC. 4. REMOVAL OF QUALIFIED IMMUNITY. 

10 Section 1979 of the Revised Statutes (42 U.S.C. 

11 1983) is amended by adding at the end the following: ‘‘In 

12 any suit pending on, or filed after, the effective date of 

13 the Ending Qualified Immunity Act of 2021, it shall not 

14 be a defense or immunity to any action brought under this 

15 section that the defendant was acting in good faith, or 

16 that the defendant believed, reasonably or otherwise, that 

17 his or her conduct was lawful at the time when it was 

18 committed. Nor shall it be a defense or immunity that the 

19 rights, privileges, or immunities secured by the Constitu20 tion or Federal laws were not clearly established at the 

21 time of their deprivation by the defendant, or that the 

22 state of the law was otherwise such that the defendant 

23 could not reasonably have been expected to know whether 

24 his or her conduct was lawful.’’. 

Æ 


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