AUSTIN, Texas (Nov. 17, 2020) – Two bills prefiled in the Texas legislature for the 2021 session 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. Senfronia Thompson (D-Houston) filed House Bill 88 (HB88) on Nov. 9. The next day, Sen. Royce West (D-Dallas) filed a companion, Senate Bill 161 (SB161). The legislation would create a cause of action in state courts to sue police officers who under the color of law “deprived the person of or caused the person to be deprived of a right, privilege, or immunity secured by the Texas Constitution.” The proposed law specifically states “qualified immunity or a defendant’s good faith but erroneous belief in the lawfulness of the defendant’s conduct is not a defense to an action brought under this chapter.”
Under the proposed law, the court would award “reasonable attorney fees” to the plaintiff if they prevail. It would also allow a defendant to collect costs and attorney fees if the court finds the plaintiff’s claims were “frivolous.”
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 “clearly 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.
HB88/SB161 would create an alternative path in state court with no qualified immunity hurdle to clear.
The Texas bills are similar to a law recently passed in Colorado.
It remains unclear how the state legal process will 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 have cases removed to federal jurisdiction in order to take advantage of qualified immunity.
State and local law enforcement officers working on joint state/federal task forces will almost certainly will. They are effectively treated as federal agents.
For Texas law enforcement officers not operating with a federal task force, it seems unlikely they will be able to remove the case to federal court initially, but that door could open on appeal.
One attorney the Tenth Amendment Center talked to said 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.
Regardless, a process operating totally under the state constitution will be much less likely to end up in federal court than a process that depends on the U.S. Constitution and the Bill of Rights. The state process will make it more difficult for police to simply side-step civil suits by declaring sovereign immunity up front.
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 Texas will consider
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.
HB88/SB161 will be introduced in the Texas House and Senate when the legislative session kicks off on Jan. 12. At that time, they will be assigned to committees where they must pass by a majority vote before moving forward in the legislative process.