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Congressman Cohen Presides at Hearing on Qualified Immunity

March 31, 2022

Reforming civil rights litigation to restore Congressional intent

WASHINGTON – Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, today presided at the first in a series of hearings on reforming civil rights litigation by reviewing the doctrine of qualified immunity.

The doctrine shields defendants in constitutional tort cases from liability even when they have violated a person's constitutional rights if a court finds that their conduct, though unconstitutional, did not violate "clearly established" law.

In his opening statement, Chairman Cohen noted that Congress in 1871 created a federal cause of action for a person to seek money damages from a state or local official who, acting under color of state law, violates that person's constitutional or other federal rights. The Reconstruction-era Congress took action because, Chairman Cohen noted, "state and local government officials, including police officers, not only acquiesced in, but perpetrated racial violence and other forms of racial discrimination against Black Americans."

Chairman Cohen also said in part:

"By providing a cause of action, Congress intended for victims to receive some measure of justice for the violation of their federal rights by state and local government officers. And, as the Constitutional Accountability Center noted in its written submission to the Subcommittee, Congress also intended for private litigation to be a means of deterring constitutional violations by imposing financial liability on the offenders.

"The qualified immunity defense, as applied over the last several decades, subverts Congress's intent in passing Section 1983 by effectively making it impossible in all but a handful of cases for victims of constitutional or civil rights violations to obtain a remedy or even just to have their day in court."

See Chairman Cohen's entire opening statement here.

See his questioning of witnesses here.

Witnesses at today's hearing were:

  • Mr. Arthur Ago
    Director, Criminal Justice Project, Lawyers Committee for Civil Rights Under Law;
  • Mr. William J. Johnson
    Executive Director and General Counsel, National Association of Police Organizations;
  • Mr. Rafael A. Mangual
    Senior Fellow and Head of Research, Policing & Public Safety Initiative Contributing Editor, City Journal, Manhattan Institute;
  • The Honorable Jon O. Newman, Senior Circuit Judge, United States Court of Appeals for the Second Circuit;
  • Mr. Alexander A. Reinert, Max Freund Professor of Litigation & Advocacy Director, Center for Rights and Justice, Benjamin N. Cardozo School of Law;
  • Mr. Jay Schweikert, Research Fellow, Project on Criminal Justice, Cato Institute;
  • Mr. Frederick L. Thomas, National President, National Organization of Black Law Enforcement Executives; and
  • Ms. Tiffany R. Wright, Affiliated Faculty, Thurgood Marshall Civil Rights Center Howard University.

Congressman Cohen has introduced Civil Rights Enhancement and Law Enforcement Accountability Improvement Act of 2021 (H.R. 1489). The bill would create vicarious liability for employers of the law enforcement officers.

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