Nick Sibilla is a legislative analyst at the Institute for Justice.

Spurred to act by the George Floyd protests, Virginia began a special session that is poised to tackle one of the biggest barriers to police accountability: qualified immunity. Under this once-obscure legal doctrine, victims of police brutality and other abuses of power can only succeed in their lawsuits against the officers responsible if their rights were “clearly established” at the time.

Thanks to this strict requirement, qualified immunity has become a major obstacle in civil rights cases, shielding government agents from being held accountable for their actions.

Qualified immunity is nowhere to be found in the Constitution or in Section 1983, the federal law that lets people sue state and local officials who violate civil rights. Instead, it was invented whole-cloth by the U.S. Supreme Court nearly 40 years ago, and it has routinely denied justice to victims and their families since.

Fortunately, as part of the special session, Virginia lawmakers will consider an innovative reform. To bypass the qualified-immunity roadblock in federal court, H.B. 5013 would create an alternative option for civil rights lawsuits. Individuals who have had their constitutional rights violated by law enforcement officers could sue them for damages in state court. And under this new “civil action for deprivation of rights,” H.B. 5013 unequivocally declares that “qualified immunity is not a defense to liability.”

To further foster accountability, police departments and municipalities could also be held vicariously liable if an officer infringed on the rights of “vulnerable victims,” which includes Virginians with physical and mental disabilities.

To be clear, the Virginia General Assembly, as with other state legislatures, can’t end a federal doctrine such as qualified immunity. Only Congress or the U.S. Supreme Court has that power. But Virginia lawmakers can certainly craft a legal remedy that would let Virginians sue Virginia law enforcement for violating the Virginia Constitution. Even though a similar Senate bill failed, the House has a historic opportunity to make this change.

Such a pathway is not unprecedented. For decades, multiple states, including Maryland, have empowered their residents to sue law enforcement officers under their respective state constitutions. Now, similar reforms have been enacted in Colorado and Connecticut, and bills are pending in Massachusetts and New York. Colorado’s law marked the first time a state legislature expressly blocked qualified immunity as a defense in state court.

Defenders of qualified immunity claim it is needed to protect officers who are forced to make difficult, split-second decisions. But this argument ignores multiple flaws with qualified immunity.

First, under the Fourth Amendment, only “unreasonable” searches and seizures are prohibited — an officer’s reasonable use of force would comport with the Constitution, not violate it. In other words, officers who act reasonably can’t be grounds for a successful lawsuit.

Second, many qualified immunity cases don’t center on genuine threats to officer safety. For instance, over the summer, the Supreme Court rejected more than a dozen cert petitions that challenged qualified immunity. (Only Justice Clarence Thomas dissented from the court’s refusal.) Those cases included officers accused of stealing more than $225,000; a sheriff’s deputy who shot a 10-year-old boy while aiming for the family’s dog; and a SWAT team that obliterated an innocent woman’s home with tear gas grenades. (That last case was litigated by my organization, the Institute for Justice.) Officers weren’t facing life-or-death scenarios in any of those situations. Yet, incredibly, courts granted qualified immunity to law enforcement in all of those cases.

With the pressure of potential financial penalties, H.B. 5013 would provide a powerful incentive for Virginia agencies and municipalities to adopt more stringent use-of-force policies and de-escalation tactics. In turn, those procedures could help prevent dire situations from even occurring in the first place. By barring qualified immunity in state court, H.B. 5013 would better deter agents from going rogue and would let victims vindicate their constitutional rights.

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