On Friday, the Virginia House of Delegates narrowly rejected a bill that would have created a new way for individuals to sue, in state court, law enforcement officers who had violated their rights. Initially introduced by Del. Jeffrey Bourne, HB 5013 would have blocked officers from invoking “qualified immunity” as a defense. 

Under qualified immunity, government officials can only be held liable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. If no such decision exists—or it exists, but just in another jurisdiction—the officials are immune by default, even if they intentionally violated the law. Created by the Supreme Court in 1982, qualified immunity appears nowhere in the Constitution or in Section 1983, the federal statute that authorizes civil rights lawsuits against government agents. 

“Virginia’s failure to rectify qualified immunity is a disappointing blow that prevents victims from vindicating their constitutional rights,” said Institute for Justice Attorney Patrick Jaicomo, who submitted testimony in favor of the bill. “Any police reform bill is only meaningful if it includes reform to qualified immunity. Virginia just squandered a historic opportunity to end this injustice.”

Long an obscure legal rule, qualified immunity—and calls for its removal or reform—now faces widespread opposition in the wake of the killing of George Floyd by Minneapolis police officers. Over the summer, Colorado became the first state to pass a law blocking qualified immunity from being used as a defense in court. On the federal level, the House of Representatives passed the George Floyd Justice in Policing Act which would end qualified immunity for federal, state, and local law enforcement officers nationwide; Virginia Sens. Mark Warner and Tim Kaine have co-sponsored the Senate version of the bill. 

Meanwhile, the U.S. Supreme Court refused to hear eight separate cases that involved qualified immunity. Justice Clarence Thomas was the only justice who dissented from this refusal, writing that he has “strong doubts” about the doctrine.

“The principle at stake is simple: If citizens must obey the law, then government officials must obey the Constitution,” noted IJ President and General Counsel Scott Bullock. “The Constitution’s promises of freedom and individual rights are important only to the extent that they are actually enforced—and the Institute for Justice will work tirelessly to ensure that they are.”