In two different 2021 bills, the Virginia General Assembly tried to remove qualified immunity for law enforcement officers. Fortunately, both of these efforts failed. However, all signs point to the fact that the legislators will try again in future sessions.
HB2045, introduced by Delegate Bourne, would have created a civil action for deprivation of a person’s rights by an officer, and would have stripped an 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 and it never proceeded to a full vote in the House of Delegates. However, the Subcommittee expressed the desire to send this issue to the Virginia State Crime Commission, so we likely have not seen the end of this effort to abolish qualified immunity for officers.
SB1440, patroned by Senator Surovell, would have created a civil action to make 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 for statutory violations in Section 19.2-83.3. Civil actions authorized by SB1440 would have entitled 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. Once again, we will probably see this bill or a similar bill in future sessions.
Law enforcement officers around the country are rightfully concerned about efforts by legislators and courts to remove defenses and increase their civil liability exposure. The best way for officers to protect themselves is to join unions or other organizations that provide extra protection in criminal investigations and prosecutions and from civil liability. One of the very best in the country is the Legal Defense Fund (LDF) operated by the Peace Officers Research Association of California (PORAC). [add link: https://poracldf.org/about]
PORAC’S LDF serves more than 135,000 public safety members nationwide with a reserve of over $30,000,000. LDF provides coverage for criminal and civil matters involving acts or omissions within the scope of LEO employment. PORAC has teamed up with the International Union of Police Associations (IUPA) to offer membership to IUPA members across the nation, and this membership is exclusive for jurisdictions where IUPA has a chapter. Here in Northern Virginia, we are fortunate to have IUPA chapters that offer this comprehensive protection.