Oppose HB 2045 and SB 1440 – Erosion of Qualified and Sovereign Immunity for Law Enforcement

January 26, 2021

HB 2045 (Bourne) creates a state civil cause of action for depravation of any person’s constitutional rights, privileges, or immunities by a law enforcement officer, including failure to intervene.  The bill creates liability for the law enforcement officer and any public or private employer that employs or contracts with the law enforcement officer. This proposed legislation provides for compensatory damages, punitive damages, attorney’s fees and other types of relief and penalties. The bill also provides for individual liability of up to $25,000 for the law enforcement officer in certain situations.  HB 2045 prohibits the use of both sovereign immunity and qualified immunity defenses and prohibits any limitation of liability or damages.  This bill creates liability for hiring, supervision, training, retention and use of police officers. The resulting effect of HB 2045 is that it creates a cause of action for every action or interaction a law enforcement officer has.

SB 1440 (Surovell) creates a civil cause of action for the unlawful use of force or failure to intervene by a correctional officer or law enforcement officer who violates Chapter 7.1 of Title 19.2 (regarding use of force, failure to intervene, prohibited practices etc.) during the performance of duties.  An officer’s public or private employer is liable if the events occur in the ordinary course of the employer’s business. The bill provides for recovery of compensatory damages, punitive damages and attorney’s fees and costs, and the language of the bill essentially negates the sovereign immunity defense. The effect of this bill is that a law enforcement officer may be sued for reasonable actions.

Concerns

  • Law Enforcement Hiring, Retention, and Training
    • This would have a chilling effect on the hiring and retention of law enforcement/correctional officers.
    • It will be impossible to train for an unspecified standard of care.
  • Drastic Increases in Costs
    • Local Government would be vicariously liable for law enforcement and be subject to greater financial risk and increased frivolous litigation.
    • Law enforcement officers would have personal liability.
    • It will be extremely costly if not impossible to insure for this new unlimited liability.
  • Rippling Effects in the Community
    • There would be a chilling effect on use of law enforcement for private or community events and businesses.
      • This includes private security at churches, high school sporting events, concerts, raceways, etc.
    • Substantial obstacle to the provision of needed public services.
      • In terms of officers doing their jobs, maintaining staffing #s, etc.
      • Officers will be less likely to initiate an encounter with a citizen because of the potential for personal liability.
    • Officers cannot be expected to be legal scholars or think through legal arguments when attempting to perform their duties
  • Dramatic erosion of existing laws, which already provide the protections sought by these bills.
    • Officers do not have absolute immunity, and they can be held liable when they violate a clearly established constitutional right.

VACo Contacts: Chris McDonald, Esq. and Phyllis Errico, Esq., CAE

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