CONCORD, N.H. (March 10, 2021) – Last week, a New Hampshire House committee passed a bill that 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.
A bipartisan coalition of eight representatives introduced House Bill 111 (HB111) on Jan. 6. The legislation would create a cause of action in state courts to sue an agent of the state of New Hampshire, or any of its political subdivisions, including police officers, for a “violation of a right under the laws or constitution of New Hampshire or the United States.”
HB111 explicitly excludes a qualified immunity defense.
The court shall not be impeded by an invocation of a state agent’s defense or immunity including that:
(a) The rights, privileges, or immunities secured by the laws or constitution of New Hampshire or the United States were not clearly established at the time of their deprivation by the state agent, or that the state of the law was otherwise such that the state agent could not reasonably or otherwise have been expected to know whether the such agent’s conduct was lawful; or
(b) The state agent acted in good faith, or that the state agent believed, reasonably or otherwise, that his or her conduct was lawful at the time it was committed.
On March 2, the House Judiciary Committee passed HB111 with an “ought to pass” recommendation by a 19-2 vote.
An op-ed published by the New Hampshire Union Leader chronicles the legal saga of Maurice Belmore Jr. who was hit by a police vehicle. He was then beaten and intimidated to keep quiet. It took him more than four years of legal wrangling before he finally received a settlement.
“Everyone has a right to petition government for a redress of grievances. But the path to trial in the federal system is like a backcountry road filled with mud, potholes and unmarked detours. Even plaintiffs who know where they are going get lost.”
The Institute for Justice is supporting the legislation.
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.
Passage of HB111 would create an alternative path in state court with no qualified immunity hurdle to clear.
The language in this New Hampshire bill is similar to a law recently passed in Colorado.
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 HB111 opens that door. The proposed law would allow 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 Hampshire 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 Hampshire 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.
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.) during the last Congress would have done just that, but it was never taken up. 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.
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.
HB111 will move to the full House for further consideration.
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