Protecting Everyone’s Constitutional Rights Act (PECRA)

Constitutional rights mean little without a practical way to enforce them. Yet many people whose rights are violated by state or local officials never receive a remedy because of immunity doctrines and procedural barriers in federal courts. 

Qualified immunity is a judge-made doctrine that shields all local, state, and federal government officials—not just police officers—from accountability. 

The doctrine dates back to 1982. The U.S. Supreme Court created it so that government employees would have fair notice of what conduct violates the Constitution and be shielded from burdensome litigation in close cases. But the Court went too far. Qualified immunity has created excessive barriers for citizens seeking remedies when their rights are violated. In practice, it prevents many valid claims from reaching trial. Its effects are particularly significant in claims filed under the Civil Rights Act of 1871, commonly known as “Section 1983” claims after their federal code citation: 42 U.S.C. §1983. 

Strikingly, qualified immunity is not found in the text of federal law. It relieves a government employee of responsibility when, acting under color of state law, the employee violates a person’s constitutional or civil rights.   

The call to end qualified immunity and to increase accountability has gained wide support. The issue transcends typical political boundaries, garnering bipartisan agreement. 

However, due to its federal nature, only the U.S. Supreme Court or Congress has the authority to end qualified immunity. Alternatively, state legislators can increase accountability through other means. 

What Can State Legislators Do? 

The Institute for Justice offers PECRA—state legislation that creates a cause of action to vindicate constitutional rights in state courts. It guarantees that if citizens must follow the law, state and local government officials must follow the Constitution. 

PECRA takes the well-established legal concept of respondeat superior (a form of vicarious liability) and applies it to municipal and state government employers. This concept ensures that private employers take responsibility for their employees; when private employees commit wrongs within the scope of their employment, victims can sue the employers. For example, an injured person can sue a pizza company for the harm its delivery driver causes. 

PECRA requires that local or state governments take accountability for their employees’ official actions when they violate constitutional rights within the scope of their employment. This does not create personal liability for government employees or affect criminal prosecutions; rather, it incentivizes governments to take responsibility for hiring, training, managing, and disciplining employees the way private employers do.  

By applying a legal concept honed through centuries of common law, PECRA ensures a remedy for individuals whose rights are violated.