TRENTON, N.J. (Sept. 9, 2020) – A bill introduced in the New Jersey Assembly would create a process to sue police officers in state court for using excessive force or taking other actions that violate individual rights without the possibility of “qualified immunity” as a defense.
Rep. Benjie Wimberly (D-Paterson) and Rep. Verlina Reynolds-Jackson (D-Trenton) introduced Assembly Bill 4578 (A4578) on Aug, 25. The legislation would amend existing law that creates a cause of action in state courts to sue police officers who deprive a person of “substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State.”
The new language would stipulate that qualified immunity is not a defense in these cases. In effect, it would prohibit public employees and employers from invoking a defense that the “plaintiff’s rights, privileges, or immunities were not clearly established at the time of their deprivation in causes of action for unjustified use of force or violations of the New Jersey Civil Rights Act.”
A4578 would also shift the burden of proof in such cases. Police would have to demonstrate that they did not violate a clearly established right, whether statutory or under the constitution.
The Process
Typically, people sue police for using excessive force or other types of misconduct through the federal court system under the U.S. Bill of Rights. But federal courts created a qualified immunity defense out of thin air, making it nearly impossible to hold law enforcement officers responsible for actions taken in the line of duty. In order to move ahead with a suit, the plaintiff must establish that it was “clearly1 established” that the officer’s action was unconstitutional. The “clearly established” test erects an almost insurmountable hurdle to those trying to prove excessive force or a violation of their rights.
New Jersey already has an alternate path in state court. Passage of A4578 would remove the qualified immunity hurdle in state court.
The effect of the bill would be similar to a law recently passed in Colorado.
In Practice
It remains unclear how the state legal process would play out in practice.
The first question is whether people will actually utilize the state courts instead of the federal process. Under the original constitutional system, it would have never been a federal issue to begin with. Regulation of police powers was clearly delegated to the states, not the federal government. But with the advent of the incorporation doctrine, people reflexively run to federal courts. But by removing the qualified immunity hurdle, it should incentivize people to take advantage of the state system.
The second question is if police officers will be able to transfer cases to federal jurisdiction in order to take advantage of qualified immunity.
Language in the New Jersey law opens that door. The New Jersey Civil Rights Act allows people to sue in state court for violations of the U.S. Constitution or laws of the United States. All matters regarding the U.S. Constitution or federal law will be remanded to federal courts. To avoid this, plaintiffs would have to sue based solely on the New Jersey constitution and its bill of rights. The only way to avoid federal jurisdiction and ensure federal qualified immunity doesn’t come into play would be to limit the suit to state constitutional issues.
Even if the suit is focused on state law and the New Jersey constitution, state and local law enforcement officers working on joint state/federal task forces would almost certainly be able to move the case to federal court. They are effectively treated as federal agents.
One attorney told the Tenth Amendment Center that it might be possible for officers to have their case removed to federal court to consider U.S. constitutional ramifications. But he said even then, he thinks federal courts would have to respect the state law prohibiting qualified immunity as a defense. The federal court would likely have to apply the state law as the state intended, even though the federal court might well be able to decide whether or not a U.S. constitutional violation had taken place.
Other lawyers we talked to said it wasn’t clear to them that the federal courts would have to honor the state statute. It is possible that the federal court could simply decide its jurisdiction supersedes state law and hear the case under the federal process, including the application of qualified immunity. Only time will tell how the process will play out in practice. Regardless, the state process will make it more difficult for police to simply side-step civil suits by declaring sovereign immunity upfront.
Moving Forward
The Supreme Court shows no interest in rolling back its qualified immunity doctrine. In fact, the High Court recently rejected several cases that would have allowed it to revisit the issue. For instance, the SCOTUS let stand an Eleventh Circuit decision granting immunity to a police officer who shot a ten-year-old child in the back of the knee, while repeatedly attempting to shoot a pet dog that wasn’t threatening anyone.
Congress could prohibit qualified immunity. A bill sponsored by Rep. Justin Amash (L-Mich.) and Ayanna Pressley (D-Mass.) would do just that. But it’s a long-shot to pass. Congress does not have a good track recorded on reining in government power.
The best path forward is to bypass the federal system as Colorado has already done and New Jersey is considering.
Other states should follow their lead and create state processes to hold their police officers accountable. With the evolution of qualified immunity, the federal process is an abject failure. As Supreme Court Justice Byron White wrote in the 1986 case Malley v. Briggs, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Reuters called it “a highly effective shield in thousands of lawsuits seeking to hold cops accountable for using excessive force.”
Attorney and activist Dave Roland called on Missouri to adopt a similar process in an op-ed published by the St. Louis Post-Dispatch.
A consensus has developed — crossing all party and ideological lines — for the proposition that qualified immunity is an evil that should be undone. At the federal level either the Supreme Court or Congress could undo it, but thus far neither has seen fit to act. Justice in Missouri, however, does not need to wait on Washington — the Legislature can and should adopt a Missouri statute that allows citizens to sue government officials who have violated citizens’ constitutional rights.
WHAT’S NEXT
A4578 was referred to the Assembly Law and Public Safety Committee where it must pass by a majority vote before moving forward in the legislative process.
