J. Justin Wilson
J. Justin Wilson · September 8, 2020

In a stunning revival, on Monday, the House of Delegates reconsidered and approved HB 5013, a bill that would let individuals sue law enforcement officers for violating their rights and eliminate “qualified immunity” as a legal defense. HB 5013, which died twice last week–first in committee and then on the House floor–will now head to the Senate, where a similar bill has already been rejected.  

Created by the Supreme Court in 1982, 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. 

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said Institute for Justice Attorney Patrick Jaicomo, who submitted testimony in favor of the bill.  “For too long, qualified immunity has denied victims a remedy for violations of their constitutional rights. We urge the Senate to seize this historic opportunity to end this injustice. Any police reform bill is only meaningful if it includes reform to qualified immunity.”

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. 

“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, in courts and legislatures across the country, to ensure that they are.”