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RIGHTS-005 — Law-Enforcement Constitutional Accountability Act

A BILL

To establish civil and criminal accountability for constitutional violations by law-enforcement officers, to preserve lawful Federal and State enforcement authority, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Law-Enforcement Constitutional Accountability Act”.

SEC. 2. PURPOSES.

The purposes of this Act are—

  1. to provide an express and uniform civil remedy for constitutional violations committed under color of Federal, State, Tribal, territorial, or local law-enforcement authority;
  2. to preserve reasonable law-enforcement judgment while ensuring personal accountability for knowing or reckless violations;
  3. to strengthen the existing Federal criminal prohibition on deprivation of rights under color of law;
  4. to preserve valid Federal duties, Federal-officer removal, and impartial adjudication of Supremacy Clause defenses while preventing Federal employment from becoming a categorical exemption from generally applicable criminal law; and
  5. to ensure that evidence and charging-review procedures do not make otherwise available civil or criminal remedies functionally unavailable.

TITLE I—CIVIL ACCOUNTABILITY

SEC. 101. EXPRESS CIVIL ACTION FOR LAW-ENFORCEMENT CONSTITUTIONAL VIOLATIONS.

(a) In general.—Chapter 21 of title 42, United States Code, is amended by inserting after section 1983 the following:

Ҥ 1983A. Law-enforcement constitutional accountability

“(a) Cause of action.—A covered officer who, under color of law or by use or misuse of actual or apparent law-enforcement authority, subjects or causes to be subjected any person within the jurisdiction of the United States to the deprivation of a right secured by the Constitution shall be liable to the injured person in an action at law, suit in equity, or other proper proceeding for redress.

“(b) Covered public-employer responsibility.—A covered public employer shall be jointly and severally liable for compensatory relief arising from conduct described in subsection (a) by an officer acting within the scope of employment. Liability under this subsection shall not depend on proof that the violation resulted from an official policy, custom, or practice.

“(c) No qualified-immunity bar.—In an action under this section—

“(1) it shall not be a defense that the defendant acted in good faith or reasonably believed the conduct was lawful;

“(2) it shall not be a defense that the right was not clearly established or that no prior decision involved materially similar facts; and

“(3) paragraphs (1) and (2) do not limit a defense that no constitutional violation occurred, that the defendant did not cause the violation, that the force or seizure was constitutionally reasonable, or that another element of the claim has not been proved.

“(d) Relief.—A prevailing plaintiff may obtain compensatory damages, declaratory relief, equitable relief, reasonable attorney's fees and costs, and, against an individual covered officer, punitive damages upon proof that the officer knowingly or recklessly violated the right.

“(e) Limitation.—An action under this section may be commenced not later than 4 years after the claim accrues. Federal law governs accrual and tolling for concealment, incapacity, and exhaustion required by law.

“(f) Definitions.—In this section—

“(1) the term ‘covered officer’ means an employee, officer, agent, contractor, task-force member, or other person who is authorized by a governmental entity to investigate, detain, arrest, search, seize, use force, transport a detained person, execute process, or perform a comparable law-enforcement function;

“(2) the term ‘covered public employer’ means the United States, a State, an Indian Tribe, a territory or possession, the District of Columbia, a political subdivision, or an agency or instrumentality thereof that employs, authorizes, directs, or controls a covered officer; and

“(3) the term ‘recklessly’ means acting in conscious disregard of a substantial and unjustifiable risk that the conduct will deprive a person of a right secured by the Constitution.

“(g) Sovereign immunity.—The United States waives sovereign immunity for an action under this section. Pursuant to section 5 of the Fourteenth Amendment, a State shall not be immune under the Eleventh Amendment or any other doctrine of sovereign immunity from an action authorized by this section for conduct within the enforcement authority of Congress.

“(h) Relationship to other law.—This section does not preempt a State remedy that provides equal or greater protection, but a plaintiff may not obtain duplicative recovery for the same injury.”.

(b) Clerical amendment.—The table of sections for chapter 21 of title 42, United States Code, is amended by inserting after the item relating to section 1983 the following:

“1983A. Law-enforcement constitutional accountability.”.

SEC. 102. PERSONAL ACCOUNTABILITY AND INDEMNIFICATION.

(a) A covered public employer may indemnify an officer for compensatory damages and ordinary litigation costs awarded under section 1983A of title 42, United States Code.

(b) A covered public employer may not pay, reimburse, insure, forgive, or otherwise indemnify—

  1. punitive damages assessed against an officer; or
  2. the personal accountability contribution required by subsection (c).

(c) If a final judgment or accepted verdict expressly finds that an officer knowingly or recklessly violated a constitutional right, the court shall assess a personal accountability contribution equal to the lesser of—

  1. 5 percent of the compensatory damages attributable to the officer's conduct; or
  2. 10 percent of the officer's annual base salary at the time of judgment.

(d) On a particularized finding of severe financial hardship, the court may reduce the contribution, but not below 1 percent of the officer's annual base salary. The court shall consider culpability, causation, injury, ability to pay, dependents, and any punitive damages personally payable by the officer.

(e) No contribution is required absent the express finding described in subsection (c). No employer may retaliate against an officer for successfully contesting whether the statutory standard was met.

SEC. 103. PROCEDURAL SAFEGUARDS.

(a) A court may award reasonable attorney's fees to a prevailing defendant only upon finding that the action was frivolous, unreasonable, or without foundation.

(b) A public employer shall provide a defense to an officer for conduct within the scope of employment unless an actual conflict requires separate representation.

(c) Nothing in this title alters the burden of proving the underlying constitutional violation or permits liability based solely on respondeat superior against an individual officer.

TITLE II—FEDERAL CRIMINAL ACCOUNTABILITY

SEC. 201. KNOWING OR RECKLESS DEPRIVATION OF RIGHTS UNDER COLOR OF LAW.

(a) Section 242 of title 18, United States Code, is amended—

  1. by striking “willfully subjects” and inserting “knowingly or recklessly subjects”; and
  2. by adding at the end the following: “For purposes of this section, a person acts recklessly when the person consciously disregards a substantial and unjustifiable risk that the conduct is unlawful and will deprive another person of a right protected by the Constitution or laws of the United States. The risk must be of such a nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a law-enforcement officer or other person acting under color of law would observe in the circumstances.”.

(b) The amendment made by this section applies only to conduct occurring on or after enactment.

SEC. 202. COVERED SERIOUS-INCIDENT CHARGING REVIEW.

(a) When conduct by a Federal law-enforcement officer causes death or serious bodily injury, the complete available record shall receive an automatic civil-rights screening by the Civil Rights Division and an investigative component outside the employing agency. The employing agency may conduct an operational, administrative, or criminal inquiry but may not exclusively determine whether the conduct warrants investigation under section 242 of title 18, United States Code.

(b) If the screening identifies a reasonable factual basis for further investigation, the Attorney General shall assign the matter to a United States attorney's office or Criminal Division component with no supervisory responsibility for the involved operation. The FBI may conduct or assist the investigation, but an internal Executive-branch reassignment may not eliminate the independent screening required by subsection (a).

(c) If no prosecution is commenced within 180 days after the screening, the reviewing component shall provide to the Inspector General of the employing department and the congressional judiciary committees a written statement identifying—

  1. the offenses reviewed;
  2. whether the evidence was sufficient to establish each material element;
  3. any unresolved evidence-access or conflict issue; and
  4. whether further review remains open.

(d) The statement required by subsection (c) shall protect grand-jury matter, classified information, witness safety, privacy, and ongoing investigative needs. The Inspector General shall publish an aggregate annual summary that does not identify uncharged persons.

(e) Nothing in this section requires prosecution or alters the constitutional authority of the President or the Attorney General. Failure to comply with the screening, assignment, or reporting duty may be remedied by declaratory or mandamus relief, but no court may direct the filing of a criminal charge.

TITLE III—STATE CRIMINAL JURISDICTION AND FEDERAL DEFENSES

SEC. 301. RULE OF CONSTRUCTION REGARDING FEDERAL AUTHORITY.

(a) No law-enforcement authority conferred by an Act of Congress shall be construed to authorize a Federal officer knowingly or recklessly to deprive a person of a constitutional right.

(b) A generally applicable State criminal law is not preempted as applied to conduct by a Federal law-enforcement officer that was outside the officer's lawful Federal authority or was not necessary and proper to perform a valid Federal duty.

(c) Nothing in this title—

  1. authorizes a State to regulate, obstruct, or punish the lawful performance of a Federal duty;
  2. eliminates or diminishes a defense arising under the Constitution or laws of the United States;
  3. changes the elements or burden of proof under State criminal law; or
  4. authorizes a criminal law that discriminates against the United States, its officers, or persons assisting them.

SEC. 302. REMOVAL AND PROMPT IMMUNITY DETERMINATION.

(a) Nothing in this Act limits removal under section 1442 of title 28, United States Code.

(b) When a removed State criminal prosecution presents a motion to dismiss based on Supremacy Clause immunity, the district court shall—

  1. establish an expedited schedule;
  2. permit focused discovery necessary to decide disputed jurisdictional or immunity facts, subject to appropriate protective orders;
  3. decide the motion as soon as practicable and ordinarily within 60 days after the evidentiary record closes; and
  4. issue written findings sufficient for appellate review.

(c) The court may extend a deadline only through written findings that identify the exceptional need and preserve the defendant's speedy-trial rights.

TITLE IV—EVIDENCE PRESERVATION AND ACCESS

SEC. 401. MINIMUM EVIDENCE SAFEGUARDS.

(a) When a covered law-enforcement operation causes death or serious bodily injury, each involved public employer shall immediately preserve relevant recordings, communications, reports, location data, vehicle data, weapons records, forensic material, dispatch information, and chain-of-custody records.

(b) If a State attorney general or prosecutor with territorial jurisdiction certifies that the State has opened a criminal investigation, a Federal agency controlling relevant evidence shall provide timely secure access, subject to judicially reviewable protections for classified information, grand-jury matter, confidential sources, unrelated active operations, compelled statements, attorney work product, and personal privacy.

(c) The agency may not withhold or delay evidence because the evidence may disfavor the United States, a covered officer, an immunity defense, or a potential civil claim.

(d) The United States waives sovereign immunity for an action by the authorized State official seeking preservation, secure access, or compliance under this section. The action shall be brought in the Federal district court for the district in which the incident occurred and shall receive expedited consideration.

(e) This section does not create a public-disclosure right, authorize a prosecution, alter criminal jurisdiction, or require creation of a recording that does not otherwise exist.

TITLE V—IMPLEMENTATION, REPORTING, AND SEVERABILITY

SEC. 501. DATA COLLECTION AND REPORTING.

The Attorney General shall publish annual aggregate data on actions under section 1983A of title 42, United States Code; indemnification and personal contributions; referrals and charging decisions under section 242 of title 18; State prosecutions removed under section 1442 of title 28; and compliance with title IV. The report shall protect sealed information, privacy, uncharged persons, and ongoing proceedings.

SEC. 502. GRANTS AND TECHNICAL ASSISTANCE.

The Attorney General may use amounts otherwise appropriated for civil-rights enforcement, law-enforcement training, evidence systems, and State and local assistance to support implementation. No additional amount is authorized by this section.

SEC. 503. EFFECTIVE DATES.

(a) Title I applies to conduct occurring 180 days after enactment.

(b) Titles II and III apply only to conduct occurring on or after enactment.

(c) Title IV applies to a covered incident occurring 90 days after enactment.

SEC. 504. SEVERABILITY.

If any provision of this Act or an amendment made by this Act, or the application thereof, is held invalid, the remainder of this Act and the application of its provisions to other persons or circumstances shall not be affected.

Budgetary Impact Statement

No reliable estimate is available before case-volume, indemnification, insurance, evidence-system, staffing, and intergovernmental implementation review. Material costs may include additional Federal civil litigation, public-employer representation and compensatory liability, Department of Justice and inspector-general screening, evidence preservation and secure production, reporting, and expedited Federal-court proceedings. The draft presently authorizes use of otherwise appropriated implementation funds but does not authorize a new sum.

The first budget pass should distinguish Federal employer liability from State and local compliance costs and should test the fiscal and workforce effects of the personal-contribution rule separately from compensatory indemnification.

Note: Preliminary ARRP assessment only; not a CBO, OMB, agency, or legislative-counsel score.

Drafting Notes

This is an initial discussion draft, not final legislative counsel text. The civil and criminal titles are intentionally severable. Before scoring, the project should review Congress's section 5 enforcement basis, State sovereign immunity, municipal and Federal employer liability, the personal-contribution percentages, collective bargaining and insurance, the section 242 mens rea under Screws, State criminal jurisdiction and Supremacy Clause immunity, charging-review independence, evidence overlap with DOM-005, appropriations, and implementation costs.