Protecting Everyone’s Constitutional Rights Ordinance (PECRO)
A Municipal Legislative Solution to Problems Caused by the Federal Judiciary’s Creation of Qualified Immunity
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 local, state, and federal government officials—not just police—from accountability when they violate constitutional rights.
In 1982, the U.S. Supreme Court created the doctrine, making many constitutional claims difficult to bring to trial. The doctrine significantly impacts claims filed under the Civil Rights Act of 1871. These claims are known as “Section 1983” claims after their federal code citation: 42 U.S.C. §1983.
But immunity has no basis in the text of federal law. In practice, it can relieve officials of responsibility when, acting under color of state law, they violate a person’s constitutional or civil rights.
Opposition to qualified immunity spans the ideological spectrum. From constitutional scholars to popular musicians, there is a broad, nonpartisan consensus to end qualified immunity and create meaningful accountability at the state and local levels when constitutional rights are violated.
Because qualified immunity is a federal creation, however, only the U.S. Supreme Court or Congress can end it. But local legislators can address accountability in another way.
What Can City Council Members Do?
The Institute for Justice offers PECRO—a municipal ordinance that creates a cause of action to vindicate constitutional rights in state courts. It guarantees that if citizens must follow the law, local government officials must follow the Constitution.
PECRO takes the well-established legal concept of respondeat superior (a form of vicarious liability) and applies it to municipal 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.
PECRO requires that local 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, PECRO ensures a remedy for individuals whose rights are violated.