Qualified immunity is a judge-made doctrine that shields government officials from personal accountability when they violate the Constitution. Created by the U.S. Supreme Court in 1982, qualified immunity is at the center of calls for police reform. From political leaders to lawyers to athletes to musicians, there is a broad, nonpartisan consensus that it is essential to end qualified immunity to address issues of accountability highlighted by George Floyd’s killing.
Because qualified immunity is a federal judicial creation, only the U.S. Supreme Court or Congress can end the doctrine for federal constitutional challenges. But state legislators can address accountability in another way.
What can state legislators do?
The Institute for Justice offers PECRA—state legislation that creates a new cause of action to vindicate constitutional rights in state courts. It guarantees that if citizens must follow the law, governments must follow the Constitution.
PECRA takes the well-established legal concept of vicarious liability and applies it to state and municipal government employers. Today, vicarious liability ensures that private employers take responsibility for their employees’ actions. When private employees commit wrongs within the scope of their employment, victims can sue their employers. For example, an injured person can sue a pizza company for the damages its delivery driver causes.
If government employees violate constitution rights within the scope of employment, the government stands behind the employees’ actions. This incentivizes governments to take responsibility for hiring, training, managing and disciplining employees the way private employers do. PECRA does not create personal liability for government employees nor does it affect criminal prosecutions.
By applying a doctrine honed through centuries of common law, PECRA ensures a remedy for individuals whose rights are violated.