II 

118TH CONGRESS 

1ST SESSION S. 1196 

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 

APRIL 19, 2023 

Mr. MARKEY (for himself, Mr. SANDERS, and Ms. WARREN) 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 Congress finds the following: 

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

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


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1 Stat. 13, chapter 22) to enforce the 14th Amend2 ment to the Constitution of the United States and 

3 combat rampant violations of civil and constitu4 tionally secured rights across the United States, par5 ticularly those of newly freed slaves and other Black 

6 people in the post-Civil War South. 

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

8 codified at section 1979 of the Revised Statues (in 

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

10 provides a cause of action for individuals to file law11 suits against persons acting under color of law, in12 cluding State and local officials, who violate their 

13 Federal legal and constitutionally secured rights. 

14 (3) Under section 1983 a person may be held 

15 liable for acting under color of State law, even if 

16 they are not acting in accordance with State law. 

17 (4) Section 1983 has never included a defense 

18 or immunity for government officials who act in 

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

20 a defense or immunity based on whether the right 

21 was ‘‘clearly established’’ at the time of the viola22 tion. 

23 (5) From 1871 through the 1960s, government 

24 actors were not afforded qualified immunity for vio25 lating rights. 


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1 (6) The Supreme Court of the United States in 

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

3 government actors had a good-faith defense for mak4 ing arrests under unconstitutional statutes based on 

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

6 (7) The Supreme Court of the United States 

7 later extended the good-faith defense beyond false 

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

9 for government officials. 

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

11 800 (1982), the Supreme Court of the United States 

12 found the subjective search for good faith in the gov13 ernment actor unnecessary, and replaced it with an 

14 ‘‘objective reasonableness’’ standard that requires 

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

16 the violation for the defendant to be liable. 

17 (9) The doctrine of qualified immunity has se18 verely limited the ability of many plaintiffs to re19 cover damages under section 1983 when their rights 

20 have been violated by State and local officials. 

21 (10) As a result, the intent of Congress in pass22 ing section 1983 has been frustrated, and the rights 

23 secured by the Constitution of the United States 

24 have not been appropriately protected. 


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1 SEC. 3. SENSE OF CONGRESS. 

2 It is the sense of Congress that Congress must cor3 rect the erroneous interpretation of section 1979 of the 

4 Revised Statutes that provides for qualified immunity and 

5 reiterate the standard found on the face of the statute, 

6 which does not limit liability on the basis of the good-faith 

7 belief of the defendant or on the basis that the right was 

8 not ‘‘clearly 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— 

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

13 and 

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

15 ‘‘(b) It shall not be a defense to any action pending 

16 on, or filed after, the date of enactment of this subsection 

17 that, at the time of the deprivation— 

18 ‘‘(1) the defendant was acting in good faith; 

19 ‘‘(2) the defendant believed, reasonably or oth20 erwise, that his or her conduct was lawful; 

21 ‘‘(3) the rights, privileges, or immunities se22 cured by the Constitution and laws were not clearly 

23 established; or 


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1 ‘‘(4) the state of the law was such that the de2 fendant could not reasonably have been expected to 

3 know whether his or her conduct was lawful.’’. 

Æ 


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