by James C. Sherlock
Being a law enforcement officer is tough under the best of circumstances.
Do you think that exposure to losing your house and car in a civil suit for something you did in a split second to protect the public and yourself and did not have reason to know was against the law would deter you from a job in law enforcement?
Truth is, it would deter all of us.
Virginia Democrats in 2021 introduced legislation to eliminate under Virginia law a peace officer’s ability to offer an immunity defense in state courts against civil lawsuits for actions that violate constitutional rights:
A. Any law-enforcement officer, as defined in § 9.1-101, who, under color of law, subjects or causes to be subjected, including failing to intervene, any other person to the deprivation of any rights, privileges, or immunities granted to such person under the constitutions and laws of the United States and the Commonwealth, shall be liable to the injured party for compensatory damages, punitive damages, and equitable relief….
B. Sovereign immunity and any limitations on liability or damages shall not apply to claims brought pursuant to this section. Qualified immunity is not a defense to liability imposed by this section.
A 2017 per curiam (unanimous) opinion by the Supreme Court reiterated a long-existing legal standard that qualified immunity is an available defense for law enforcement officers unless there is “clearly established law giving each individual Officer fair notice that his particular conduct was unlawful.”
It is hard to imagine that the Supreme Court, unanimous there, would permit a state law that denied civil immunity without fair notice of the illegality of specific acts.
Regardless, under the 2021 Democratic bill in Virginia, officers were to be in jeopardy in civil suits whether or not they had fair notice that their actions, split-second or otherwise, were unlawful. They were specifically to be required to judge the constitutionality of specific actions.
With a gun in their face.
It draws a very clear line for political debate.
Are law enforcement officers to be personally liable for actions that they have no reason to know are unlawful? If so, who will do that job?
That Virginia bill’s sponsors and indeed all candidates should be asked their current positions on qualified immunity for law enforcement officers so that voters can be informed before casting their ballots in the fall.
The patrons of 2021 HB 245:
Jeffrey M. Bourne (chief patron)
Jerrauld C. “Jay” Jones (chief co-patron)
Betsy B. Carr
Lee J. Carter
Kenneth R. Plum
Marcia S. “Cia” Price
Ibraheem S. Samirah
Marcus B. Simon
Senate Patron of identical bill: L. Louise Lucas
Sen. Scott Surovell, speaking in favor of his own bill, offered
Bourne’s legislation would’ve applied to nearly all interactions with law enforcement, which several Senate Democrats considered “too broad.”
“Several” Senate Democrats considered Bourne’s bill too broad. Good to know.
Bottom line. It falls to all journalists to identify the positions of candidates for Virginia Senate, House and Commonwealth’s Attorney on sovereign (state) and qualified (federal) civil immunity of police officers.
Few Democrats want to be asked.
Bourne is one that is up front. He is running on it.
Jones, Carter, Plum, Samirah and Kory are gone.
Betsy Carr now does not list eliminating police civil immunity among her priorities in her new district. Marcia Price never mentions this issue in what seem like a hundred press releases going back several years. Marcus Simon found no room for eliminating police civil immunity on his latest policy list.
An internet search found Sen. Lucas still wearing boxing gloves. She is not discussing the subject of cops.
Do candidates in the fall elections want police officers to be liable for civil judgements for breaking rules they have no reason to know they are breaking?
There is a directly related follow-up question for candidates that are in favor of eliminating those immunities. It addresses the consequences of doing so:
Do they want police officers?
Updated July 8 at 13:54 to expand on issue of federal qualified immunity in the state law proposed by Democrats.