20.07 Law Professors Sign On
20.07 Law Professors Sign On
20.07 Law Professors Sign On
Section 1983, enacted originally in 1871 as the Ku Klux Klan Act, was intended to provide a civil remedy
under federal law for persons whose constitutional rights have been violated by state actors. In theory, the law
provides a vehicle for such persons to seek redress from both the officers as well as the local governments that
employ them. But the operative words are “in theory,” because the Supreme Court has drained the life from
this statute in two significant ways.
First, the Court has created a defense of “qualified immunity.” This defense makes recovery against an officer
very difficult, even when the officer has violated a person’s constitutional rights. The Court requires a showing
that the right violated is one that was “clearly established,” such that every reasonable officer would understand
that the conduct amounted to a constitutional violation. Most courts require a plaintiff to produce a case in
which the Supreme Court or Court of Appeals has held unconstitutional conduct involving virtually identical
facts. The requirement places an overwhelming burden on plaintiffs. It often results in “one free pass,” where
the officer who has violated a person’s constitutional rights is absolved of liability because there was no case
on point. Furthermore, the Court has compounded the injury of “one free pass” with the insult of a “continuing
free pass” by allowing courts to grant qualified immunity without ruling on the merits of plaintiffs’ claims,
thus insuring that no law becomes clearly established.
Second, the Supreme Court has created similarly insurmountable limits for a plaintiff who wants to sue the
local government employer for an officer’s unconstitutional conduct. Although the entity is not able to raise
qualified immunity, the Supreme Court held in a 1978 case, Monell v. Department of Social Services, that to
recover from a local government under Section 1983, the plaintiff must show that the wrongdoing was caused
by an official policy or custom. In most cases, a plaintiff would have to demonstrate a pattern of very similar
constitutional violations and show that policymakers had knowledge of such incidents and failed to address
the problem.
The defense of qualified immunity for the individual officers, combined with the heavy burden of proving an
official policy or custom in order to recover from the government employer, results in no redress for persons
whose constitutional rights have been violated. Congress should amend Section 1983, providing both that
individual defendants have no qualified immunity and that local government entities shall be held liable for
the unconstitutional acts of their officers.
Those who support qualified immunity argue that eliminating the defense will threaten to bankrupt officers
for making reasonable mistakes while doing their jobs. But the Supreme Court’s Fourth Amendment doctrine
already recognizes that officers often must take decisive action under quickly changing circumstances, and
already protects officers from liability when they make reasonable mistakes. Moreover, even if an officer is
found liable, he is almost certain not to face bankruptcy. Local government employers almost always agree
to pay settlements and judgments against their officers through indemnification agreements. But, where the
conduct is really egregious and/or in violation of the agency’s policy, the employer might refuse indemnification
or an insurer may deny coverage, leaving the plaintiff whose rights have been violated without a remedy.
This “loophole” would be plugged by amending Section 1983 to make local governments vicariously liable for
an employee’s constitutional violations. Replacing Monell with respondeat superior liability would mean that
when an officer commits a truly egregious violation—and most likely would be denied indemnification—
plaintiffs are still able to recover from the local government entity that gave that officer his badge and gun.
Several bills that have been introduced in Congress seek to abolish qualified immunity. We the undersigned
endorse these proposals, as well as the proposal by Senator Braun (R-IN) to replace Monell with respondeat
superior liability.
CC:
The Honorable Jerrold Nadler, Chairman, House Committee on the Judiciary
2132 Rayburn House Office Building, Washington, DC 20515
The Honorable Jim Jordan, Ranking Member, House Committee on the Judiciary
2056 Rayburn House Office Building, Washington, DC 20515
The Honorable Lindsey Graham, Chairman, Senate Judiciary Committee
290 Russell Senate Office Building, Washington, DC 20510
The Honorable Dianne Feinstein, Ranking Member, Senate Judiciary Committee
331 Hart Senate Office Building, Washington, DC 20510
SIGNED