California Gov. Gavin Newsom on Thursday signed a bill (SB 2) that will eliminate several legal immunities that shield law enforcement from civil rights lawsuits, a move that will make it easier for victims of excessive force and police misconduct to sue the officers responsible.
Today, one of the biggest hurdles to hold officers accountable is qualified immunity, which prevents government agents from being held liable for violating someone’s constitutional rights, unless they violated “clearly established” constitutional rights. This doctrine has yielded downright Kafkaesque results. Just in California, Fresno police officers accused of stealing more than $225,000 and Los Angeles County social workers accused of sexual harassment have all been granted qualified immunity on the grounds that it was unclear whether stealing or sexual harassment were constitutional violations.
As an alternative to federal courts, lawmakers in more than half the states have introduced bills that would let individuals sue law enforcement officers in state court for violating the state constitution, according to the Institute for Justice. In theory, a state cause of action would let victims bypass the complicated hurdles imposed by qualified immunity in federal courts.
Unfortunately, many of the state remedies already in place have been severely compromised and rendered largely ineffective, either by importing qualified-immunity case law from federal courts or by crafting 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 enabled lawsuits against government employees, as well as private parties, if they “interfere by threat, intimidation, or coercion” with an individual’s constitutional rights. When the Bane Act was enacted, California was a pioneer: Only two other state legislatures (Massachusetts and Nebraska) had crafted similar causes of action.
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But over the years, California courts have limited the Bane Act’s potential by invoking immunities found in other state laws. For instance, one California statute declares that “a public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”
Although that provision was intended to protect against malicious prosecution lawsuits, lower state courts have interpreted that provision as providing absolute immunity for police officers investigating a crime. As one Santa Clara Law Review article put it, that “created a regime of lawless law enforcement in California” and “handed the state’s law enforcement authorities a license to kill or to do any other damage that strikes their fancy, even maliciously and without probable cause, as long as they do it in the course of investigating crime.”
In response, SB 2 will unequivocally exempt lawsuits filed against law enforcement officers under the Bane Act from that immunity provision. SB 2 will similarly amend California laws that shield prison guards and their employers from being held liable for injuring prisoners (except in negligence cases) or for failing to provide medical care to them.
Although the new law will make it easier for many Californians to hold officers accountable, SB 2 leaves a major loophole untouched. Several state courts have held that in order for the lawsuit to continue under the Bane Act, individuals must show that there was a “specific intent” to interfere with someone’s constitutional rights, or that the interference was “deliberate or spiteful.” That has made it fiendishly difficult for victims to win in court. An earlier version of the bill was amended to close this loophole, but ultimately that amendment was itself amended out to secure the bill’s passage.
Even this weakened version was still considered a bridge too far for law enforcement unions. As the main opponents of SB 2, police unions claimed the bill would threaten individual officers with financial ruin and lead to a mass exodus. Yet SB 2 leaves the state’s indemnification laws intact, which largely prevent officers from paying out of pocket. Moreover, a nationwide study of police indemnification by UCLA Law Professor Joanna Schwartz found that “governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.”
And in states that have curtailed immunity for police, officers 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 the dire predictions of police unions, the number of Colorado officers who quit or resigned in 2020 actually decreased compared to 2018 and 2019.
As a federal doctrine, qualified immunity can only be completely abolished by Congress or the U.S. Supreme Court. Prospects for change, however, are dim. After months of negotiations, talks over a federal policing reform bill collapsed last week, with eliminating qualified immunity as one of the main sticking points. With Congress gridlocked and the Supreme Court rejecting cases (at least for now) that would narrow or end qualified immunity, it’s left to the states, those “laboratories of democracy,” and efforts like SB 2 to rectify abuses of power.