IJ Supports New Bill in Congress That Would End Qualified Immunity Nationwide

John Kramer
John Kramer · March 1, 2021

Arlington, Va.—Rep. Ayanna Pressley (D-MA) reintroduced the Ending Qualified Immunity Act today, a bill that would make it much easier for individuals to sue government employees who violate their constitutional rights. The Institute for Justice is proud to endorse this bill as an important and long overdue solution for fixing the problem with government accountability that has been plaguing this nation for some time.

Under qualified immunity, government workers can only be held liable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. If no such decision exists—or it exists, but just in another jurisdiction—the officials are immune by default, even if they intentionally violated the law.

Created by the U.S. Supreme Court in 1982, qualified immunity appears nowhere in the Constitution or in the statute that authorizes civil rights lawsuits against state and local government officials (Section 1983, originally Section 1 of the Ku Klux Klan Act of 1871). Yet even when qualified immunity is denied, government workers are almost always indemnified, with their employer or municipality ultimately paying their legal costs. In fact, one study found that “individual officers contributed to settlements in just 0.41% of these cases, and paid approximately 0.02% of the total awards to plaintiffs.”

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said Anya Bidwell, a lawyer with the Institute for Justice. “For too long, qualified immunity has thwarted the original intent of Section 1983 and denied victims of government abuse a remedy for violations of their constitutional rights,” added IJ attorney Patrick Jaicomo.

True to its name, the Ending Qualified Immunity Act would eliminate qualified immunity for all local and state government employees—not just law enforcement officers, but also prison guards, county clerks, public school administrators, and municipal and state employees. If enacted, government workers would no longer be able to hide behind a hyper-technical analysis of what it means for the law to be clearly established and to violate the Constitution even when acting in bad faith. The courts would be able to focus—as is the case with non-governmental defendants—on whether the law was violated and on ordering a proper remedy.

First introduced last year by then Libertarian Rep. Justin Amash and Democratic Rep. Pressley, the Ending Qualified Immunity Act became the first bill to ever receive tripartisan support in Congress. Opposition to qualified immunity crosses party lines, earning the support of roughly two-thirds of Americans, and the killing of George Floyd last year united Americans on the need to fix the system in which government workers are above the law.

“The principle at stake is simple: If citizens must obey the law, then government officials must obey the Constitution,” concluded IJ President and General Counsel Scott Bullock. “The Constitution’s promises of freedom and individual rights exist only to the extent that they are actually enforced—and Ayanna Pressley’s bill is an important step in ensuring that they are. The Ending Qualified Immunity Act has our full support.”