With the movement to end qualified immunity in federal courts perpetually on shaky ground, states have begun forging their own paths around the U.S. Supreme Court doctrine that, critics argue, shields police officers from civil rights lawsuits that allege misconduct.
States like Colorado and New Mexico have enacted brand-new civil rights laws that allow plaintiffs to sue individual officers in state-level courts without the threat of a judge ruling that the case is covered by qualified immunity — a Supreme Court doctrine that says constitutional violations by public officials, including police, must be “clearly established” by a past case to proceed in civil court. That requirement has become a Catch-22 in preventing lawsuits against police officers for excessive force, false arrests and wrongful deaths from reaching a jury.
While California already has a decades-old civil rights law in which qualified immunity does not apply, civil rights attorneys and lawmakers say the 1987 Tom Bane Civil Rights Act is ineffective in its current form.
It still grants police officers immunity for certain major offenses, critics say, and it has been “mangled” by the courts over its three-decade lifespan. Through new legislation, they are seeking to close its loopholes.
“California should have a civil rights law — a real civil rights law — and not the hot mess … that the Bane Act is, in terms of how it’s drafted and courts have interpreted it,” state Sen. Scott Wiener said during an April 27 California Senate Judiciary Committee hearing on SB 2, the bill that proposes amendments to the law.
Sen. Steven Bradford, D-Gardena, authored the bill, and Wiener is co-authoring it with Senate President Pro Tem Toni Atkins. SB 2 would amend the Bane Act, so that it can be used to sue police for misconduct with fewer obstacles. It also proposes a framework through which bad police officers can be stripped of their right to work in California.
As tensions over police violence boiled over last summer following the police killing George Floyd, there was renewed scrutiny on the use of qualified immunity. Critics argue the doctrine makes it exceedingly difficult to successfully sue police officers, among the few paths through which misconduct victims can seek recourse. Horror stories abound of police committing egregious constitutional violations and being protected by the doctrine.
In California’s state courts, the Bane Act has been an alternative route. It was originally intended to protect citizens against hate crimes, but plaintiffs have increasingly used the law to sue police for alleged civil rights violations. Still, critics say, the law is nowhere near perfect and needs to be amended to provide misconduct victims with a viable path to seek remedies.
While the Bane Act, for example, does not allow qualified immunity, it provides “absolute immunity” to police officers who plant evidence, use excessive force on prisoners, and who deny prisoners proper medical care.
As it is written, the law provides these immunities to “law-breaking police officers who engage in the most egregious misconduct,” said Julia Yoo, a San Diego-based civil rights attorney who supports SB 2. “It’s not even a qualified immunity. You can’t file a lawsuit — period.”
If passed, the amendments would eliminate these immunities, she said.
The immunities do not protect police in all cases of misconduct under the Bane Act, such as excessive force and wrongful arrests. Nevertheless, under law as it’s currently being interpreted, plaintiffs must prove that an officer was so malicious that he or she intended to violate their rights — a very high bar that, in legal terms, is called “specific intent.”
It “requires you to really get in the officer’s head,” said Michael Haddad, a civil rights attorney and a proponent of revising the Bane Act. “You have to prove that not only did the officer use excessive force when he shot you, but that he intended to use excessive force.”
If the revisions are implemented, that obstacle would be eliminated, and it would be easier to bring a lawsuit against a police officer for constitutional violations such as excessive force, wrongful arrests, and illegal searches. In addition to those fixes, proponents argue that the Bane Act should also allow plaintiffs to use the law to file wrongful death claims.
All of these proposed changes appear to be unpopular with state law enforcement groups. During the April 27 Senate Judiciary Committee hearing, a cavalcade of police chiefs and police union representatives — including the San Francisco Police Officers Association — said they opposed the bill.
David Mastagni, a lawyer who represents the Peace Officers Research Association of California, the state’s largest law enforcement advocacy group, criticized the proposed amendments to the Bane Act, arguing they boiled down a “fee grab” by plaintiffs attorneys looking for an easier route to sue police and deep-pocketed municipalities.
Unlike other state level claims, the Bane Act provides attorneys fees, just like the federal civil rights law.
“This is all about attorney fees for trial lawyers,” Mastagni said. “It actually is not about additional remedies for plaintiffs or aggrieved victims, because the extra remedies for the most part are not going to them.”
Mastagni argued that by lowering the standard, public employees aside from police, such as social workers and teachers, can be sued for making the wrong decisions. “Guess what’s going to happen then?” he said. “People are going to hesitate before they remove kids from [dangerous] homes; officers are going to hesitate before they do what they need to do to protect the public.”
Despite the opposition, Yoo said she hoped state legislators will have the courage to pass the amendments. In the past, as the Sacramento Bee opined in a September 2020 editorial, the legislature has “failed on critical police reform.”
“Let’s say California is supposed to be the leader in standing up for people’s civil rights,” Yoo said. “And yet, here we are.”
On April 27, the law passed out of the Senate Judiciary Committee by a 7-2 vote. It is currently waiting in the Senate Appropriations Committee’s “suspense file,” where, next Thursday, Senate leadership will decide whether the bill should proceed to a full vote on the Senate Floor. If the law receives a majority vote in the Senate, it will move onto the Assembly.
“I don’t want to be too harsh,” Yoo said of the legislature’s track record on police reform. “What can I say? It takes political will and courage — and Colorado and New Mexico had leadership.”