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 receive notice about the type of acts that violate the constitution. While aiming to safeguard employees from expensive and time consuming lawsuits, the Court went too far. It created excessive barriers for citizens seeking remedies for violations of their rights. Specifically, the doctrine prevents many valid claims from advancing to trial. Its impact is particularly notable in claims filed under the Civil Rights Act of 1871, commonly referred to as “Section 1983” claims in reference to their federal code citation—42 U.S.C. §1983.

Strikingly, qualified immunity is not found in the text of federal law. And 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. 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 or state government employees violate constitutional rights within the scope of employment, PECRA 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. PECRA 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, PECRA ensures a remedy for individuals whose rights are violated.