RICHMOND, Va. (WRIC) — A somewhat wonky legal term is now central to calls for police reform in Virginia.

Some state lawmakers say ‘qualified immunity’ presents a huge hurdle for people trying to sue police for violating their constitutional rights. Others argue eliminating the protection would make it difficult for officers to act in situations that require split-second decisions.

The U.S. Supreme Court declined to take up a number of cases this month that could have challenged the legal doctrine. With President Donald Trump already signaling his opposition to reforms pitched by Democrats at the federal level, Del. Jeff Bourne (D-Richmond) said immediate change is more likely to come at the state level. In Virginia, Democratic majorities in the House and Senate can pass laws along party lines.

Alongside Del. Jay Jones (D-Norfolk), Bourne said he’s working on a bill to reform qualified immunity, one of about 30 proposals the Virginia Legislative Black Caucus is hoping to address in a special session expected in August.

“This is not the one solution that is going to fix everything but we do believe it is an important piece,” Bourne said in an interview on Wednesday.

Bourne said qualified immunity sets an ‘extremely high’ bar that can prevent victims from being compensated in civil lawsuits against officers–at times the only option for recourse. He said attorneys have to be able to point to a very similar case in which a court has already deemed the officer’s actions unconstitutional.

The standard can tie the hands of judges if they can’t compare the situation to existing precedent, even if they believe an officer has acted in bad faith, according to Bourne.

“Those violations of those rights have to be clearly established. The facts of each case have to be exactly the same,” Bourne said. “There is still inherent, systematic and institutional racism pervading our country and this is another piece of it.”

Jim Cervera, who served as Virginia Beach’s police chief for ten years before retiring, said officers deserve discretion, especially in potentially lift-threatening situations.

“It really would put police in a very difficult position because remember, a lot of decisions that they have to make are instantaneous,” Cervera said. “To eliminate qualified immunity entirely would be a disservice to the many police officers who are doing an excellent job.” 

Instead of eliminating qualified immunity, he said the standard should be scaled back, an idea recently proposed by U.S. Sen. Mike Braun, a Republican from Indiana.

“There is a lot of emotions right now and I understand that. If we can slow it down a bit, especially on this particular issue, then we would be sending a signal to the cops that we do value what they do,” Cervera said.

Sen. Braun’s proposal essentially changes the default position of officers under the law, paving the way for them to be held liable unless it’s demonstrated that they deserve immunity. Under this bill, an officer could not use qualified immunity as a defense if it was found that they acted in bad faith or in a manner inconsistent with federal law.

“Was the officer’s action so egregious that there is no way they could say it’s reasonable? Then qualified immunity should not be brought in,” Cervera explained.

On the other hand, the current proposal by Democrats in the U.S. House of Representatives specifically says that a defendant would not be immune from lawsuits just because they were acting in a way they thought was reasonable or lawful at the time.

Del. Bourne said the precise language of his bill hasn’t been drafted yet.

A VLBC press release sent Wednesday said they’re intent on eliminating qualified immunity.

Sen. Bryce Reeves (R-Spotsylvania), who used to work in law enforcement, said this change could have a negative impact on the ability of police departments to recruit and retain employees. Reeves sent the following statement about the proposal:

If you got away from immunity, you would see the ranks of law-enforcement diminished quickly. There are enough inherent risks involved in day to day law-enforcement already that, under the current climate, make many veteran LEO’s question staying on to make retirement. You would see less new recruits wanting to serve.

Sen. Bryce Reeves (R-Spotsylvania)

Bourne said bills passed during a special session generally take effect on the first day of the fourth month following adjournment–unless another date is specified in the legislation.