Defining Immunity: Committee Buries Bill as Senators Argue Over Details
By Brian Carlton
September 12, 2020

Senators argue HB5013 was “too broad,” didn’t include material needed in court

RICHMOND-Depending on who you talk to in Virginia, qualified immunity is either a benefit or a curse. Law enforcement agencies see it as a way to protect their officers, arguing that someone shouldn’t be sued over a mistake made in a split second. Some lawmakers and other members of the community see it differently. They point out everyone else faces that burden daily. If a citizen makes a mistake, he or she can be sued without any type of protection. Why should law enforcement have a different set of rules, they ask? 

That’s been the argument over the last three weeks in the General Assembly, as HB5013 was killed, revived and killed again in the House, before eventually passing. The bill didn’t even last a day in the Senate, however. On Thursday, the Virginia Senate Judiciary Committee voted 12-3 to table it indefinitely. And no, in this case, it’s not coming back. Once a bill dies, there’s only one way to bring it back. Someone who voted against it has to ask for that vote to be reconsidered. But here’s the thing. You can only make that request once. Immediately after the committee’s vote on Thursday, Sen. Tommy Norment (R-James City County) asked to reconsider the vote. The bill died again by the same 12-3 score. That means HB5013 can’t be brought back up for the rest of this session. 

What Did The Bill Say? 

Set up by a 1982 Supreme Court case, qualified immunity protects government officials, including law enforcement, from liability in certain cases. This includes situations involving excessive force or violating someone’s rights. But immunity isn’t automatic. 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. A judge tosses the case otherwise. HB5013 would have removed that “clearly established” clause. That means a person could file a lawsuit and would then have to prove before a judge or jury that the officer’s actions were unconstitutional. 

“This bill really boils down to helping Virginians hold the police, the people that are sworn to serve and protect them, accountable,” said Del. Jeff Bourne (D-Richmond), the bill’s creator. Testifying before the Senate committee, Bourne pointed out that officers would be treated no different than in any other civil case. 

“This allows the case to be heard on the merits,” Bourne said. “The judge or the jury is going to decide what the liability is and what the level of damages are.” 

That doesn’t mean someone would have been able to file an endless stream of lawsuits, however. The bill also had a clause that limited a person to one lawsuit against police every two years. 

Immunity Bill ‘Lacked Detail,’ Senators Claim

The problem, multiple senators from both parties argued, is that they felt the bill was too broadly defined. Sen. Chap Petersen (D-Fairfax City) said that in his experience as a lawyer, when you send a case to a jury, you need to give them instructions. The jury then has to decide if the defendant violated those instructions, if he or she went against the standard of behavior. 

“What I don’t see in this bill is what the standard is supposed to be,” Petersen said. “What is the standard by which the jury would judge the officer’s conduct?” 

Del. Bourne referred back to Section A of the bill, which states a law enforcement officer who deprives someone of their civil rights could be sued. That includes rights given by both the US constitution and the Commonwealth. But Petersen said that was still too broad as even some small incidents like preventing someone from hunting or fishing could be considered depriving them of their civil rights. 

Sen. Richard Stuart (R-King George County) also argued the bill didn’t do enough to define when an officer could be sued. Under the bill, he argued an officer could be sued for a mistake in judgement, rather than just excessive force or any other malicious act. 

“This allows an individual who simply makes a mistake in a split decision to be sued and lose everything they have,” Stuart said. “Who in their right mind would serve as a police officer if they had to be subjected to the kind of liability for errors in judgement and not intentional acts?” 

Del. Bourne answered that as well, arguing if officers are worried about being sued for unconstitutional acts, then “they might not be the type of people that we want serving our communities and patrolling our streets.”

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