California Governor Gavin Newsom on Thursday signed a bill (SB 2) that will eliminate several legal immunities that protect law enforcement officials from civil rights lawsuits, a move that will allow victims of excessive force and police misconduct to more easily prosecute the officers responsible.
One of the main obstacles to agent accountability today is qualified immunity, which prevents government agents from being held accountable for violating someone’s constitutional rights, unless they do not. ‘violated “clearly established” constitutional rights. This doctrine gave outright Kafkaesque results. In California alone, Fresno police officers accused of stealing over $ 225,000 and Los Angeles County social workers accused of sexual harassment have all been granted qualified immunity on the grounds that he was not. clear whether the theft or sexual harassment were constitutional violations.
As an alternative to federal courts, lawmakers in more than half of the states have introduced bills that would allow individuals to sue law enforcement in state courts for violating the state constitution, according to the Institute for Justice. In theory, a state cause of action would allow victims to circumvent the complicated hurdles imposed by qualified immunity in federal courts.
Unfortunately, many state remedies already in place have been severely compromised and rendered largely ineffective, either by importing case law on qualified immunity from federal courts or by developing state-specific immunity doctrines.
California is a prime example of the latter. In the late 1980s, the state enacted the Tom Bane Civil Rights Act, a landmark bill that allowed for lawsuits against government employees, as well as private parties, if they “interfere with the threat. , intimidation or coercion ”with the constitutional rights of an individual. When the Bane Law was enacted, California was a trailblazer: only two other state legislatures (Massachusetts and Nebraska) had developed similar causes of action.
But over the years, California courts have limited the potential of the Bane Act by invoking immunities found in other state laws. For example, a California law states that “a public employee is not liable for damages caused by the initiation or continuation of any legal or administrative proceedings in the course of his employment, even if he acts maliciously and without probable cause ”.
While this provision was intended to protect against malicious prosecution, lower state courts have interpreted this provision as providing for absolute immunity for police investigating a crime. Like a Santa Clara Law Review The article said so, which “created a faithless law enforcement regime in California” and “issued state law enforcement officials with a license to kill or to cause any other harm that they pleased, even maliciously and without probable cause, as long as they do so in the course of a crime investigation.
In response, SB 2 will unequivocally exempt the prosecution of law enforcement officers under the Bane Act from this immunity provision. SB 2 will similarly amend California laws that protect prison guards and their employers from being held liable for injuries inflicted on prisoners (except in cases of negligence) or failing to provide them with medical care.
While the new law will allow many Californians to hold agents to account, the SB 2 leaves a major loophole intact. Several state courts have held that in order for the trial to proceed under the Bane Act, individuals must prove that there was a “specific intent” to interfere with someone’s constitutional rights, or that the interference was “willful or malicious”. This has made it devilishly difficult for victims to win in court. An earlier version of the bill was amended to fill this loophole, but ultimately this amendment itself was amended to ensure passage of the bill.
Even this weakened version was still seen as too far a bridge for law enforcement unions. As main opponents of SB 2, police unions have argued the bill would threaten individual officers with financial ruin and lead to a mass exodus. Yet SB 2 leaves state compensation laws intact, which largely prevent agents from paying out of pocket. In addition, a national police compensation study conducted by UCLA law professor Joanna Schwartz found that “governments paid about 99.98% of the dollars recovered by plaintiffs in connection with prosecutions alleging violations of civil rights by the police ”.
And in states that have reduced police immunity, police haven’t fled en masse either. Consider Colorado, which created a landmark cause of action that banned qualified immunity for law enforcement in June 2020. Contrary to dire predictions from police unions, the number of Colorado officers who have resigned or resigned in 2020 in fact decreases compared to 2018 and 2019.
As a federal doctrine, qualified immunity can only be completely abolished by Congress or the Supreme Court of the United States. The prospects for change, however, are dim. After months of negotiations, talks on a federal police reform bill collapsed last week, with the elimination of qualified immunity being one of the main sticking points. With Congress blocked and the Supreme Court dismissing cases (at least for now) that would reduce or end qualified immunity, it’s up to states, to these “labs of democracy” and efforts like SB 2 to rectify the abuse of power.