Title: Constitutional Accountability Act
Policy area: Civil Rights and Liberties, Minority Issues

Summary:
Constitutional Accountability Act
This bill extends civil liability to federal, state, and local government entities and officials for constitutional violations committed by law enforcement officers.
Current law provides a statutory civil cause of action against state and local government actors (e.g., law enforcement) for violations of constitutional rights (also known as Section 1983 lawsuits); the Supreme Court has also found an implied cause of action against federal law enforcement officers in certain situations (e.g., Fourth Amendment violations).
However, under the judicial doctrine of qualified immunity, government officials performing discretionary duties are generally shielded from civil liability except when their actions violate clearly established rights of which a reasonable person would have known. Additionally, under the doctrine of sovereign immunity, federal and state government entities generally cannot be sued without their consent. Further, the Supreme Court has held that a local government entity cannot be sued for an injury inflicted by its employees.
The bill provides a statutory civil cause of action against and extends liability to federal, state, and local government entities and officials for violations of constitutional rights committed by law enforcement officers in their employment, regardless of any immunity that would otherwise apply.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3415 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  1st Session
                                S. 3415

  To ensure that the United States, States, and local governments are 
   liable for monetary damages for constitutional violations by law 
                         enforcement officers.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 16, 2021

Mr. Whitehouse introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To ensure that the United States, States, and local governments are 
   liable for monetary damages for constitutional violations by law 
                         enforcement officers.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Constitutional Accountability Act''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) The 14th Amendment to the Constitution of the United 
        States was passed by Congress and ratified by the people of the 
        United States against the backdrop of numerous State laws, 
        policies, and practices that denied African Americans and 
        others their enjoyment of fundamental rights.
            (2) Congress drafted the 14th Amendment to broadly protect 
        fundamental rights and guarantee equality to all persons.
            (3) To help realize the promise of equality protected in 
        the 14th Amendment, Congress passed section 1979 of the Revised 
        Statutes (42 U.S.C. 1983) (referred to in this section as 
        ``section 1983''), creating a statutory remedy for violations 
        of the Constitution of the United States and Federal law. 
        According to Mitchum v. Foster, 407 U.S. 225, 242 (1972), 
        section 1983 was intended ``to interpose the Federal courts 
        between the States and the people, as guardians of the people's 
        Federal rights''.
            (4) By creating this remedy, Congress recognized that civil 
        suits are a necessary and powerful tool to protect individual 
        rights. Suits under section 1983 can not only make whole 
        victims who are wronged. The suits can incentivize actors to 
        take the steps necessary to avoid wrongdoing in the first 
        place.
            (5) Unfortunately, the Supreme Court's current crabbed 
        interpretation of section 1983 undermines its ability to 
        accomplish these goals.
            (6) Private employers are responsible for the torts of 
        their employees under the doctrine of respondeat superior. The 
        risk of liability incentivizes private employers to effectively 
        hire, supervise, train, and discipline their employees.
            (7) In contrast, under Monell v. Department of Social 
        Services of the City of New York, 436 U.S. 658 (1978), 
        municipal defendants are not subject to respondeat superior 
        liability for the constitutional torts of their officers. 
        Cities may only be held liable for the constitutional torts of 
        their officers only when the plaintiff can show that the 
        violation was the result of a municipal policy or custom. Under 
        Will V. Michigan Department of State Police, 491 U.S. 58 
        (1989), States cannot be held liable at all.
            (8) The Monell doctrine requires judges to resolve 
        difficult questions regarding which officials are policymakers, 
        whether an official was acting in State or local capacity, and 
        municipalities' training and hiring processes.
            (9) In Board of County Commissioners v. Brown, 520 U.S. 
        397, 430 (1997), Justice Breyer criticized this ``highly 
        complex body of interpretive law'' and called for a 
        reexamination of ``the legal soundness'' of the Monell 
        doctrine. Numerous scholars, as well as other jurists, have 
        criticized the Monell doctrine as convoluted, inconsistent, 
        arbitrary, and unintelligible.
            (10) There is no statutory cause of action for 
        constitutional violations by Federal officials. Victims can 
        only bring their claims if courts infer a cause of action, 
        which they are increasingly unlikely to do.
            (11) Police officers are regularly called upon to make 
        split-second, life-or-death decisions. The current liability 
        regime, however, is not sufficient to ensure that police 
        departments adequately hire, train, supervise, and discipline 
        their officers so that they can respond to these situations in 
        a constitutional manner.
            (12) There are over 18,000 police departments in the United 
        States and no uniform standard on how officers should be 
        trained. Departments generally require significantly more 
        training on how to deploy force than when it is appropriate to 
        do so. As recently as 2017, 34 States did not mandate de-
        escalation training for all officers.
            (13) A National Public Radio study of fatal police 
        shootings of unarmed Black people nationwide found that several 
        officers were involved in multiple shootings without 
        consequences. The same study found that departments hired 
        officers with histories of domestic violence, as well as 
        officers who were fired or forced out of other police 
        departments due to prior misconduct.
            (14) According to United States v. Georgia, 546 U.S. 151, 
        158 (2006), Congress has the power under section 5 of the 14th 
        Amendment to the Constitution of the United States to provide 
        for direct enforcement of section 1 of the 14th Amendment ``by 
        creating private remedies,'' including ones ``against the 
        States.''.
            (15) Eliminating restrictions on the liability of State and 
        local governments is necessary to ensure that no ``State 
        [shall] deprive any person of life, liberty, or property, 
        without due process of law; nor deny to any person within its 
        jurisdiction the equal protection of the laws.''.

SEC. 3. CIVIL ACTIONS FOR DEPRIVATION OF RIGHTS.

    Section 1979 of the Revised Statutes (42 U.S.C. 1983) is amended--
            (1) in the first sentence, by striking ``Every'' and 
        inserting the following:
    ``(a) In this section:
            ``(1) The term `person' includes--
                    ``(A) the United States;
                    ``(B) a State or Territory or the District of 
                Columbia;
                    ``(C) a local government;
                    ``(D) an agency, government body, or any 
                subdivision of the United States, a State or Territory 
                or the District of Columbia, or a local government, or 
                an entity created by a combination of any of the 
                foregoing; and
                    ``(E) an individual or private entity.
            ``(2) The term `law enforcement officer' includes any 
        officer of a local government, or of a State or Territory or 
        the District of Columbia, or of the United States, or an entity 
        created by a combination of any of the foregoing who is 
        empowered by law to execute searches, to seize evidence, or to 
        make arrests for violations of law.
    ``(b) Every'';
            (2) in subsection (b), as so designated, in the first 
        sentence, by inserting ``the United States,'' before ``any 
        State''; and
            (3) by adding at the end the following:
    ``(c) A person is liable under this section for a violation of 
rights, privileges, or immunities secured by the Constitution and laws 
committed by an individual who at the time of the violation is employed 
by the person as, or contracted by the person to do the work of, a law 
enforcement officer. Liability under this subsection shall exist 
without regard to whether such employee or contractor would be immune 
from liability, and without regard to whether the employee or 
contractor was acting pursuant to a policy or custom of the person who 
is the employer.
    ``(d) Pursuant to section 5 of the 14th Amendment, no State shall 
be immune from suit, under the Eleventh Amendment or other doctrine of 
State sovereign immunity, for any claims on which subsection (c) 
subjects a person to liability.
    ``(e) For purposes of an action under subsection (c), the United 
States waives its sovereign immunity.
    ``(f) Except as expressly stated, no provision of this section 
shall be construed to abolish, repeal, or limit the scope of any right 
of action otherwise available under this section or any other source of 
law.''.
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