From [HERE] Bills introduced in the New York Assembly and Senate would create a process to sue police officers and government officials in state court for the deprivation of individual rights without the possibility of “qualified immunity” as a defense.

Asm. Latrice Walker (D) and Asm. Khaleel Anderson (D) introduced Assembly Bill 2632 (A2632) on Jan 26. The legislation would create a cause of action in state courts to sue a police officer who “under color of law, subjects or causes to be subjected, including failing to intervene, any other person to the deprivation of any individual rights that create binding obligations on government actors secured by the bill of rights, article one of the state constitution.”

The bill specifically prohibits “qualified immunity” as a defense.

Senate Bill 2887 (S2887) would also create a state cause of action to sue police officers, but it would include violations of the U.S. Constitution as a basis for a suit. As explained below, this is problematic.

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 “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 A2632 or S2887 would create an alternative path in state court with no qualified immunity hurdle to clear.

The language in the bill is similar to a law 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.

State and local law enforcement officers working on joint state/federal task forces almost certainly would. They are effectively treated as federal agents.

For New York 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 under A2632, but that door could open on appeal.

By allowing people to sue for violations of the U.S. Constitution in state court, S2887, the door would be immediately open to moving cases to federal courts where qualified immunity would apply. That makes the language in A2632 preferable. [MORE]