RICHMOND, Va. (CN) — Thomas Roberts still remembers his early optimism when he first entered civil rights litigation over 30 years ago.
“You go to law school, you know your Constitution and civil rights and you think ‘Well federal court is the place to be’ until you get smacked down a few times with qualified immunity,” he said in a phone interview Tuesday afternoon.
Qualified immunity, a legal doctrine that protects state actors like police from civil rights lawsuits, along with sovereign immunity which offers similar protections, have erupted in recent conversations about race and policing in the wake of George Floyd and others who have ended up on the wrong end of police interactions.
While state governments and activists around the country have talked about rolling back these shields, by a vote of 12-8, Virginia legislators appear to be on their way to doing it.
“This legal doctrine effectively denies access to justice,” said the bill's author Delegate Jeff Bourne, D-Richmond, in the House Courts and Justice Committee that moved his bill on to its next step Wednesday evening. “None of these bills are particularly radical; at the core they allow Virginians to pursue the same rights they have in federal courts.”
Bourne’s bill specifically creates a new cause of action — a new kind of law suit under the statute itself — to file a complaint for violation of rights which are “granted to such person[s] under the constitutions and laws of the United States and the Commonwealth.”
It also specifically denies the use of “sovereign immunity and any other statutory immunities” as a defense against these claims.
“We’re trying to give our citizens an opportunity to seek redress in the appropriate situation and this bill does that,” said Delegate Jay Jones, D-Norfolk, in a phone interview ahead of Wednesday’s hearing. Jones is a co-patron of the bill and is running for Attorney General when the seat opens in 2021.
“We all respect law enforcement but we want to make sure that they are properly trained and equipped to handle these scenarios and do so in a way that’s safe for our communities,” Jones said.
Qualified immunity and sovereign immunity are not easy legal concepts to understand.
The core principle started in 1871 as section 1 of the Klu Klux Klan Act of 1871. The act was created to offer recently freed slaves a legal channel to file a civil lawsuit against police officers for violating their recently earned 14th Amendment rights.
The relevant section said any government actor who participates in the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.”
While it didn’t create a civil rights law, it created a cause of action to sue over the violation of those rights. And evidently it worked for a bit during Reconstruction with federal troops acting as police and offenders facing jury trials full of black freed slaves.
It was later codified federally under Section 1893 under the Civil Rights Act. But in 1967 the U.S. Supreme Court, in Pierson v. Ray, which involved a handful of black clergymen participating in a protest against segregation in an interstate bus terminal in Jackson, Mississippi, weakened the law by finding “good faith” exceptions which can allow violators to skirt punishment.
Critics, like the CATO Institute’s Criminal Justice Reform Policy Analyst Jay Schweikert, argue it has since gotten much worse.
In a phone interview ahead of Wednesday’s vote, Schweikert called modern courts’ interpretation of the doctrine the “primary stumbling block to meaningful accountability for law enforcement.”