Immunity and Accountability

Protecting Everyone’s Constitutional Rights Ordinance 

A Municipal Legislative Solution to Problems Caused by the Federal Judiciary’s Creation of Qualified Immunity

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

In 1982, the U.S. Supreme Court created the doctrine to ensure, in its words, it would be difficult for constitutional claims to get to trial. The doctrine significantly impacts claims filed under the Civil Rights Act of 1871. These claims are known as “Section 1983” claims, in reference to their federal code citation—42 U.S.C. §1983. 

But the immunity has no basis in the text of federal law. And it relieves an official of responsibility when, acting under color of state law, the official violates a person’s constitutional or civil rights.  

From constitutional scholars to popular musicians, there is a broad, nonpartisan consensus to end qualified immunity and restore the Civil Rights Act to address issues of accountability at the local and state levels. 

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. Today, 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 their employers. For example, an injured person can sue a pizza company for the harm its delivery driver causes. 

If local government employees violate constitutional rights within the scope of employment, PECRO requires that governments stand behind their employees’ official actions. This incentivizes governments to take responsibility for hiring, training, managing and disciplining employees the way private employers do. PECRO does not create personal liability for government employees nor does it affect criminal prosecutions. 

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