II 

116TH CONGRESS 

2D SESSION S. 4036 

To amend the Revised Statutes to reform 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 

JUNE 23, 2020 

Mr. BRAUN introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To amend the Revised Statutes to reform 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 ‘‘Reforming Qualified 

5 Immunity Act’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds the following: 

8 (1) Congress passed the Act of April 20, 1871 

9 (commonly known as the ‘‘Ku Klux Klan Act’’; 17 

10 Stat. 13, chapter 22), to combat rampant violations 


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1 of civil and constitutionally secured rights across the 

2 nation, particularly in the post-Civil War South. 

3 (2) Included in that Act was a provision, now 

4 codified at section 1979 of the Revised Statues (in 

5 this section referred to as ‘‘section 1983’’), which 

6 provides a cause of action for individuals to file law7 suits against State and local officials who violate 

8 their legal and constitutionally secured rights. 

9 (3) Section 1983 has never included a defense 

10 or immunity for government officials who act in 

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

12 a defense or immunity based on whether the right 

13 was ‘‘clearly established’’ at the time of the viola14 tion. 

15 (4) From the law’s beginning in 1871, through 

16 the 1960s, government actors were not afforded 

17 qualified immunity for violating rights. 

18 (5) The Supreme Court of the United States in 

19 Pierson v. Ray, 386 U.S. 547 (1967), found that 

20 government actors had a good-faith defense for mak21 ing arrests under unconstitutional statutes based on 

22 a common-law defense for the tort of false arrest. 

23 (6) The Supreme Court of the United States 

24 later extended the good-faith defense beyond false 


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1 arrests, turning it into a general good-faith defense 

2 for government officials. 

3 (7) Finally, in Harlow v. Fitzgerald, 457 U.S. 

4 800 (1982), the Supreme Court of the United States 

5 found the subjective search for good faith in the gov6 ernment actor unnecessary, and replaced it with an 

7 ‘‘objective reasonableness’’ standard that requires 

8 that the right be ‘‘clearly established’’ at the time of 

9 the violation for the defendant to be liable. 

10 (8) This doctrine of qualified immunity has se11 verely limited the ability of many plaintiffs to re12 cover damages under section 1983 when their rights 

13 have been violated by State and local officials. 

14 (9) As a result, the intent of Congress in pass15 ing section 1983 has been frustrated, and the rights 

16 secured by the Constitution of the United States 

17 have not been appropriately protected. 

18 SEC. 3. SENSE OF THE CONGRESS. 

19 It is the sense of the Congress that Congress must 

20 correct the erroneous interpretation of section 1979 of the 

21 Revised Statutes and reform the court-created doctrine of 

22 qualified immunity. 

23 SEC. 4. REFORM OF QUALIFIED IMMUNITY. 

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

25 1983) is amended— 


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1 (1) by inserting ‘‘(a)’’ before ‘‘Every person’’; 

2 and 

3 (2) by adding at the end the following: 

4 ‘‘(b)(1) Except as provided in paragraph (2), it shall 

5 not be a defense to any action brought under this section 

6 that, at the time of the deprivation— 

7 ‘‘(A) the defendant was acting in good faith; 

8 ‘‘(B) the defendant believed, reasonably or oth9 erwise, that his or her conduct was lawful; 

10 ‘‘(C) the rights, privileges, or immunities se11 cured by the Constitution and laws were not clearly 

12 established; or 

13 ‘‘(D) the state of the law was such that the de14 fendant could not reasonably have been expected to 

15 know whether his or her conduct was lawful. 

16 ‘‘(2) A defendant sued in his or her individual capac17 ity under this section shall not be liable if the defendant 

18 establishes that, at the time the deprivation occurred— 

19 ‘‘(A)(i) the conduct alleged to be unlawful was 

20 specifically authorized or required by a Federal stat21 ute or regulation, or by a statute passed by the pri22 mary legislative body of the State, Territory, or Dis23 trict of Columbia in which the conduct was com24 mitted; 


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1 ‘‘(ii) no court of competent jurisdiction had 

2 issued a final decision on the merits holding, without 

3 reversal, vacatur, or preemption, that the provision 

4 or provisions of the statute or regulation authorizing 

5 or requiring such conduct were inconsistent with the 

6 Constitution or Federal laws; and 

7 ‘‘(iii) the defendant reasonably believed that his 

8 or her conduct was in conformance with the Con9 stitution of the United States and Federal laws; or 

10 ‘‘(B)(i) a court of competent jurisdiction had 

11 issued a final decision on the merits holding, without 

12 reversal, vacatur, or preemption, that the specific 

13 conduct alleged to be unlawful was consistent with 

14 the Constitution of the United States and Federal 

15 laws; and 

16 ‘‘(ii) the defendant reasonably believed that his 

17 or her conduct was in conformance with the Con18 stitution of the United States and Federal laws. 

19 ‘‘(c)(1) In a covered action, a municipality or other 

20 unit of local government shall be liable for a violation of 

21 subsection (a) by an agent or employee of the municipality 

22 or other unit of local government acting within the scope 

23 of his or her employment. 

24 ‘‘(2) It shall not be a defense to a covered action de25 scribed in paragraph (1) that— 


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1 ‘‘(A) the agent or employee was acting in good 

2 faith, or that the agent or employee believed, reason3 ably or otherwise, that his or her conduct was lawful 

4 at the time when it was committed; or 

5 ‘‘(B) the rights, privileges, or immunities se6 cured by the Constitution and laws were not clearly 

7 established at the time of their deprivation by the 

8 agent or employee, or that at this time, the state of 

9 the law was otherwise such that the agent or em10 ployee could not reasonably have been expected to 

11 know whether his or her conduct was lawful. 

12 ‘‘(d) In this section— 

13 ‘‘(1) the term ‘court of competent jurisdiction’ 

14 means— 

15 ‘‘(A) the Supreme Court of the United 

16 States; 

17 ‘‘(B) a district court or court of appeals of 

18 the United States that has jurisdiction over the 

19 territory in which the deprivation occurred; or 

20 ‘‘(C) a court of general jurisdiction of a 

21 State, Territory, or District that has jurisdic22 tion over the territory in which the deprivation 

23 occurred; 

24 ‘‘(2) the term ‘covered action’ means an action 

25 under subsection (a) against— 


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1 ‘‘(A) an agent or employee of a munici2 pality or other unit of local government acting 

3 in his or her official capacity; or 

4 ‘‘(B) a municipality or other unit of local 

5 government; and 

6 ‘‘(3) the term ‘defendant’ does not include— 

7 ‘‘(A) a municipality or other unit of local 

8 government; or 

9 ‘‘(B) an individual employed by a munici10 pality or other unit of local government acting 

11 in his or her official capacity.’’. 

Æ 


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