Virginia House Kills Qualified Immunity Bill a Second Time
By Brian Carlton
September 5, 2020

Just days after resurrecting the bill in committee, House Democrats and Republicans alike voted against it Friday on third reading.

Editor’s note: The original version of this story identified the SWAT van as a police car and said the flash bang grenade was tossed inside the vehicle, rather than near the front passenger door.

RICHMOND-Qualified immunity will remain in Virginia. After a bizarre week, which saw the bill die and then get resurrected in committee, the Virginia House officially voted down a proposal Friday that would have scaled back some legal protections for officers. 

The bill, HB5013, died by a 47-48 vote, with three delegates abstaining. Opponents argued that it wasn’t needed, questioning the impact this would have on police recruiting. Supporters said this was the only way some people would be able to get justice. Both sides framed their answers around a single question: does Virginia’s court system do enough for victims of excessive force? 

Set up by a 1982 Supreme Court case, qualified immunity protects government officials, including law enforcement, from some liability if you feel your rights were violated. This doesn’t happen every time. Officers can still face criminal charges and you can file a lawsuit, but there are conditions. In order to file, you first have to prove a court previously ruled that it was “clearly established” the officer’s specific actions were unconstitutional. Otherwise the case gets thrown out. The proposed bill would have eliminated that protection for all law enforcement officers, making it easier to sue. 

Is A Change Needed? 

The main argument against the bill questioned if it was needed. Del. Jason Miyares (R-Virginia Beach) brought up the fact that people can sue police officers now, if they prove actions were “clearly established” to be unconstitutional. He brought up the India Kager case from 2015 as an example. On Sept. 5, 2015, India Kager had parked her car at a 7-Eleven in Virginia Beach. She had her 4-month-old son inside the vehicle, along with the child’s father, Angelo Perry. Local police believed Perry, who already had convictions for robbery and homicide, planned to kill someone that night. After Kager pulled into a parking space, a SWAT van came in behind. Officers got out of the vehicle and tossed a flash bang grenade near the front passenger door. Perry started shooting and the officers returned fire with 30 rounds in the next nine seconds. Both Kager and Perry died in the incident. 

The local Commonwealth’s Attorney cleared the officers, but Kager’s family sued, arguing the officers showed gross negligence. A jury awarded them $800,000. 

“Qualified immunity is not just a blanket denial,” Miyares told the rest of the House on Friday. “[But] this establishes an entirely new standard. The good cops are all going to leave, because if they stay in the job they are in, the liability exposure is just simply going to be enormous. A lot of this will be paid by the localities and the taxpayers, which means they’re going to be defending lawsuits instead of putting money into better police training and recruiting and hiring better cops.” 

Looking to Remove Legal Constructs

The bill’s creator, Del. Jeff Bourne (D-Richmond) acknowledged that officers could be sued now. However, he felt the “clearly established” rule put up too high a burden. 

“What we’re trying to change is the legal construct which in an overwhelming majority of cases prevents justice for families and victims,” Bourne said. “Really it boils down to are we going to afford Virginians who find themselves on the business end of excessive force the ability to better and more fairly fight for some redress and relief in our state courts?”

Bourne’s colleagues, including several on the Democratic side, disagreed, killing the bill for the second time in a week. Because it was voted down by the full House, the bill can only be brought back by someone who voted against it. As for the final vote, some media reported the final vote as 47-49, with three abstaining. They count Del. Wright as a no, however he was not in attendance so he couldn’t cast a vote.

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