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Qualified Immunity Bill Fails to Advance in Senate

A bill proposing sweeping changes to Virginia’s sovereign immunity laws has failed to advance in the Senate and has been instead sent to the Boyd-Graves Conference for further study and analysis.

HB 5013 (Bourne) was one of many bills introduced by legislators during this special session proposing extensive reforms of various criminal justice laws and procedures. Specifically, HB 5013 targeted and chipped away at sovereign immunity, proposing several changes to current law.

The bill sought to do the following:

  • Create a civil action for the deprivation of a person’s rights by a law-enforcement officer and provides that a plaintiff may be awarded compensatory damages, punitive damages, and equitable relief, as well as reasonable attorney fees and costs.
  • Stipulate that sovereign immunity or any other immunities or limitations on liability or damages shall not apply to such actions and that qualified immunity is not a defense to liability for such deprivation of rights.
  • Provide that any public or private entity that employs or contracts for the services of a law-enforcement officer owes a duty of reasonable care to third parties in its hiring, supervision, training, retention, and use of such officers under its employment or contract.

As originally introduced, HB 5013 also would have held a state or local government liable for the actions undertaken by an off-duty law enforcement officer. This, however, was amended by the House Appropriations Committee after hearing the concerns of multiple stakeholders, including VACo.

HB 5013 underwent a perilous journey through the House of Delegates. First, it narrowly passed out of the House Committee for Courts of Justice by a vote of 12-9 and was re-referred to the House Appropriations Committee. There, the bill failed by a vote of 11-11 but was eventually reconsidered (with the aforementioned amendment) and passed 12-9. Once the bill was before the full House of Delegates, it initially failed by a vote of 47-48-3, but was reconsidered a few days later and only just passed by a vote of 49-45-2.

HB 5013 was finally heard late last week by the Senate Committee on the Judiciary. After extensive debate, the Committee opted to pass the bill by indefinitely and instead referred the topic to the Boyd-Graves Conference. The Boyd-Graves Conference is a highly respected committee comprised of experienced civil trial lawyers and judges. The Conference studies pressing legal issues and, if needed, recommends needed changes to the Code of Virginia and the Rules of Court relating to state court civil litigation. The Senate Committee on the Judiciary took a similar approach with SB 5065 (Morrissey), as was detailed in the September 3 newsletter.

VACo has long held a position opposing substantive changes to sovereign immunity and as such opposed this bill. VACo staff fully expects this topic to be revisited at the outset of the 2021 Legislative Session.

VACo Contact: Chris McDonald, Esq.

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