In addition to the many other laws that went into effect in California on January 1, 2022, Gov. Gavin Newsom approved SB 2, which enacts sweeping policing reforms in the state.

One part of SB 2, in particular, has been the subject of much media attention and vociferous opposition by some police officer associations. The controversial part amends California Civil Code 52.1, which is known as the "Tom Bane Civil Rights Act", or simply Bane Act, to ostensibly make it easier for plaintiffs harmed by police officers to maintain civil rights lawsuits by eliminating certain legal "immunities" that have typically shielded police officers from liability. The Bane Act provides a private right of action for damages against any person who “interferes,” or “attempts to interfere by threat, intimidation, or coercion,” with the exercise or enjoyment of a constitutional or other right under California or federal law. (Civ. Code, § 52.1, subds. (b)-(c).)

The question posed in this article is whether SB 2 went far enough in holding police officers accountable for their actions. To answer this question, one must read SB 2 carefully.

SB 2 Does Not Alter Qualified Immunity in Federal Civil Rights Cases

Immunities are judge-made laws, statutes, or government actions that exempt certain individuals or government entities from liability or legal penalties even when they may have committed an otherwise wrongful or illegal act. One such judicially invented immunity is known as qualified immunity, and in the wake of the murder of George Floyd and others, it has come under increasing scrutiny and criticism.

Qualified immunity, a federal doctrine created by the U.S. Supreme Court in the 1960s, shields police officers from liability in civil rights lawsuits filed in federal court. The qualified immunity doctrine creates a high hurdle for plaintiffs to jump because it exonerates most police officers, even when they have broken the law.

Under the doctrine, “courts may not award damages against a government official in his personal capacity unless the official violated a statutory or constitutional right, and the right was "clearly established" at the time of the challenged conduct.” Lane v. Franks, 573 U.S. 228, 243 (2014). Whether a right is clearly established turns on whether it is “sufficiently definite that any reasonable official in the defendant's shoes would have understood he was violating it.” Nicholson v. City of Los Angeles, 935 F.3d 685, 695 (9th Cir. 2019). Moreover, the issue of qualified immunity is a question of law that should be resolved long before trial by the court, not a jury. Hunter v. Bryant, 502 U.S. 224, 228 (1991). 

As these cases demonstrate, plaintiffs trying to overcome qualified immunity face a tough road. Although one U.S. Supreme Court decision seemed to recognize that a plaintiff need not find “a case directly on point” to prove a right was "clearly established," that case also held that existing precedent must have placed the statutory or constitutional question "beyond debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) The practical effect of this rule is that lower federal courts have required a plaintiff to identify not only a clear legal rule, but also a prior case with practically identical facts. Most plaintiffs who bring lawsuits against police officers for civil rights violations are unable to meet this exacting test, and their cases are tossed out on a motion for summary judgment without ever getting to have their "day in court."

In addition to routinely denying justice to victims of civil rights violations, the qualified immunity doctrine has led to results that border the ridiculous. Jessop v. City of Fresno, 936 F.3d at 937 (9th Cir. 2019) is one such example. Jessop was a Fourth Amendment case brought against two police officers who had stolen over $220,000 in cash and rare coins while executing a search warrant. The 9th Circuit Court of Appeals held there was “no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant” because the Ninth Circuit had not yet decided the issue and other circuits were divided. The Court went on to state that the officers “ought to have recognized that” stealing seized property “was morally wrong," However, "they did not have clear notice that it violated the Fourth Amendment.” To most individuals, this decision flies in the face of common sense.

It has been reported that SB 2 eliminates the doctrine of qualified immunity in California. That reporting is incorrect. Because it is a federal doctrine, only Congress or the U.S. Supreme Court can abolish qualified immunity. While the original version of SB 2 attempted to address the doctrine, the enactment - watered down under pressure from law enforcement groups - does nothing to curtail the doctrine. As the law firm that represented the Peace Officers Research Association of California (PORAC) in its persistent efforts to weaken SB 2 proudly announced on its website, "SB 2 does nothing to alter qualified immunity in federal civil rights litigation." In fact, the only time SB 2 even mentions qualified immunity is in the preamble, and that mention is brief. Readers of the new law will not find the phrase "qualified immunity" mentioned anywhere else.

SB 2 Eliminates Some State Immunities Protection Police Officers Sometimes

California has several state statutory immunities that also prevent police officers from being held liable, even when they commit acts of excessive force or other misconduct. SB 2 eliminates some of these immunities. Specifically, SB 2 eliminates the protection of Government Code sections 821.6, 844.6, and 845.6.

Section 821.6 provides:

"A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause."

Section 844.6 provides, in part:

"...[A] public entity is not liable for:

(1) An injury proximately caused by any prisoner.

(2) An injury to any prisoner. ...

(d) Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission..."

Section 845.6 provides, in part:

"Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody..."

Significantly, SB 2 does not mention at least two, other immunities police officers might still use to escape liability for certain misconduct. For example, Government Code section 820.2 provides:

"Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." (Emphasis added.)

Police officers are vested with wide discretion in the field. It remains to be seen how this statutory immunity will be applied in cases involving police officers.

In addition, Government Code section 820.4 remains intact. It provides:

"A public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment."

The other limitation on SB 2's reach is that it only eliminates state law immunities in cases brought pursuant to the Bane Act. Common law torts continue to be subject to state immunities. Fortunately, the qualified immunity doctrine does not apply to either Bane Act or state tort claims brought against public employees. Venegas v. County of Los Angeles, 153 Cal.App.4th 1230 (2007); Ogborn v. City of Lancaster, 101 Cal.App.4th 448 (2002).

Accountability is Essential to Police Reform

Qualified immunity is a judge-made doctrine that purports to be an interpretation of 42 U.S.C. section 1983, and yet, that statute does not mention any immunities. It has no legal basis under the common law either. The effect of qualified immunity is that it undermines - at a structural level - society's ability to hold police officers liable for egregious instances of misconduct or abuse. The doctrine promotes a culture of misconduct among some police officers; indeed, entire departments. It also creates bad public policy by weakening the public's trust and confidence in the police and the judicial system.

Accountability is essential to police reform. Holding police officers who commit wrongs liable is - as the California Legislature recognized in SB 2's preamble, "a vital avenue for individuals harmed by violations of the law by peace officers." For that reason, Congress should step in and abolish qualified immunity. The "George Floyd Justice in Policing Act" passed the House on March 3, 2021, but the bill is bogged down in the Senate. Until Congress or the U.S. Supreme Court acts, plaintiffs in federal court cases must continue to grapple with qualified immunity.

Meanwhile, under SB 2, California plaintiffs who file Bane Act civil rights cases against police officers will have an easier time holding the officers accountable, at least in some instances. Given this legal landscape, California attorneys might question whether it makes sense to file suit against police officers in federal court at all.