2021 Public Safety Legislative Update
The 2021 Legislative Session has just ended in Virginia. Here is an overview of public safety bills that survived and failed this session.
BILLS THAT PASSED BOTH THE HOUSE AND SENATE:
- HB2004 (Hurst), FOIA records and criminal investigations: This bill would amend the Virginia Freedom of Information Act to require release of criminal investigative files relating to an investigation or proceeding that is not ongoing. Currently, release of those files are discretionary and not mandatory. There are exceptions to the requirement to release, including if release would interfere with an investigation or proceeding, disclose the identity of a confidential informant or law enforcement investigative techniques or procedures, or endanger an individual’s life or physical safety. This bill passed in the House 56-44, and passed the Senate with a substitute 23-16. The House initially rejected the Senate’s amendment, but later voted to agree 55-44. No other action has been taken on the bill at this time.
- HB2031 (Aird), Facial recognition technology: This bill prohibits law enforcement agencies from purchasing or deploying facial recognition technology unless expressly authorized by statute. Any such statute must require that the agency maintain exclusive control of the technology, and keep any related data confidential and accessible only by a search, administrative, or inspection warrant. The bill has been enrolled and is on the Governor’s desk.
- SB1119 (Reeves), Body Worn Camera System Fund: This bill creates the Body Worn Camera System Fund to assist law enforcement agencies with the cost of purchasing, operating and maintaining body worn camera systems. It passed the Senate 39-0, and the House passed the bill with an amendment with a vote of 97-1. The House amendment added a provision to sunset the fund in 2023. The Senate agreed to the House amendment, but no further action has been taken on the bill.
BILLS THAT FAILED:
- HB1794 (Davis), Collective bargaining: This bill would have exempted hiring, firing and disciplining of local employees from collective bargaining. Fortunately, it was left in the House Labor and Commerce Committee.
- HB1840 (Wyatt), Traffic stops and citations: This bill would have rolled back some changes from the session last year by allowing officers to stop motor vehicles or pedestrians in certain situations. This bill was passed by indefinitely in the Motor Vehicle Transportation Subcommittee.
- HB1875 (Coyner), Minimum LEO qualifications: This bill would have modified the minimum qualification for LEOs that prohibit an officer from serving if the officer has a conviction for a misdemeanor involving moral turpitude only if the conviction occurred within the last three years. The Public Safety Committee voted to strike this bill from the docket.
- HB1941 (Rasoul), Required release of video or audio recording: This bill would have required release of video and audio recordings in the event an officer discharges a firearm, or uses a stun weapon or chemical irritant on a person resulting in death or serious bodily injury. This House Public Safety Committee reported the bill 12-9, but the bill was sent to the Appropriations Committee where it failed to advance.
- HB1948 (Levine), Duty to render aid and report wrongdoing: This bill would have required LEO on duty who witnesses another person suffering from serious bodily injury or a life-threatening condition to render aid, and would have imposed a duty to report acts of wrongdoing committed by another LEO on duty. This bill passed in the House 57-42, but failed to make it out of the Senate Judiciary Committee.
- HB2045 (Bourne), Sovereign and qualified immunity: This bill would have created a civil action for deprivation of a person’s rights by an officer, and would have stripped the officer and the employer of the defenses of sovereign immunity and qualified immunity. Fortunately, the Civil Subcommittee of the Courts of Justice Committee voted 6-2 to “lay the bill on the table.” However, the Subcommittee expressed the desire to send this issue to the State Crime Commission, so we likely have not seen the end to the efforts to abolish or limit sovereign and qualified immunity.
- HB2151 (Adams), Daytime execution of search warrants: This bill would have provided an exception to daytime execution of search warrants if LEOs lawfully entered, secured and have remained continuously at the location being searched. This bill was left in the House Courts of Justice Committee.
- HB2196 (Mullin), Release of disciplinary records: This bill would have required release of law enforcement disciplinary records related to “completed disciplinary investigations.” Fortunately, the House General Laws Committee voted to table this bill 22-0.
- HB2228 (Guzman), Workers compensation: This bill would have expanded the definition of “occupational disease” in the Workers’ Compensation Act to include injuries from conditions resulting from repetitive and sustained physical stressors. The House Labor and Commerce Committee reported the bill with amendments 13-9, but it failed to advance in the House Appropriations Committee.
- HB2291 (Williams Graves), Civilian oversight bodies: This bill would have allowed civilian oversight bodies to oversee and issue advisory disciplinary determinations for law enforcement officers employed by a sheriff’s office. The Hose passed this bill 53-46, but the Senate Judiciary Committee voted 12-2-1 to pass the bill by indefinitely.
- SB1306 (Morrisey), APO mandatory minimum: This bill would have eliminated the six-month mandatory minimum sentence for assault on a law enforcement officer, and would have allowed a jury or court to reduce the charge to a misdemeanor under certain circumstances. The bill also would have allowed a court to enter a deferred adjudication, and would have required a separate investigation by another LEO prior to charging a juvenile with APO. The Senate passed this bill 21-18, but the bill was left in the House Courts of Justice Committee.
- SB1332 (Reeves), Warning before using deadly force: This bill would have eliminated the requirement for an officer to provide a warning prior to using deadly force. Rather, this bill would have added whether a warning was provided and whether the officer exhausted other options prior to using deadly force in the list of factors to consider the totality of the circumstances of the use of force. The Senate Judiciary Committee voted to pass this bill by indefinitely 9-6.
- SB1361 (Reeves), Civilian oversight bodies: This bill would have required any person appointed to a law enforcement civilian oversight body to be a United States citizen, reside in the jurisdiction where he or she was appointed to serve, and not have a criminal record. The bill also would have required the appointee to complete a Citizen Academy with a basic firearms instruction course and attend a daytime and nighttime ridealong. The bill also would have required that any oversight body have at least two members with specialized knowledge in law enforcement activities or operations. The Senate Judiciary Committee passed this bill by indefinitely by a vote of 9-6.
- SB1440 (Surovell), Civil action for unlawful acts of force or failure to intervene: This bill would have created a civil action and made an officer liable to any injured person for any injuries sustained as a result of a violation of Code Section 19.2-83.3. That code section was passed in the 2020 Special Session to add definitions for “deadly force,” “deadly weapon,” “excessive force,” “kinetic impact munitions,” and “neck restraint.” The bill also would have imposed liability on the officer’s employer. Although this bill did not use the terms “qualified immunity” or “sovereign immunity,” the bill in effect would have eliminated those defenses by imposing strict liability. The civil action would entitle a successful plaintiff to compensatory damages, attorney’s fees and possibly punitive damages. Fortunately, this Senate Judiciary Committee voted to pass this bill by indefinitely 9-5.
