Bill to end qualified immunity advances out of committee

[March 27, 2021]  By TIM KIRSININKAS
Capitol News Illinois
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SPRINGFIELD – A measure to end qualified immunity as a legal defense for law enforcement officers advanced out of the House Restorative Justice Committee at a Thursday hearing.

House Bill 1727, introduced by Rep. Curtis Tarver, D-Chicago, would create the Bad Apples in Law Enforcement Accountability Act. It aims to remove the court doctrine of qualified immunity for officers, opening them up to civil litigation if they participate in the “deprivation of any individual rights” guaranteed in the Illinois Constitution. The liability is created even for officers who fail to intervene if such a deprivation is otherwise occurring.

The bill would also require local municipalities to disclose information about settlements with law enforcement officers.

Tarver and proponents of the legislation said the concept of qualified immunity emboldens some officers to make reckless decisions that could cost lives, as in the case of George Floyd’s killing in Minneapolis last year.

“Qualified immunity is one defense in a host of defenses that law enforcement has,” Tarver said. “Someone putting their knee on someone’s neck for nine minutes when they’ve already surrendered, that’s not a split-second decision.”

Peter Hanna from ACLU of Illinois told the committee on Thursday that the legislation is an effort to hold “bad apples” in police ranks accountable for their actions.

“We can no longer just accept the presence of bad apples in law enforcement as an inevitable truth,” Hanna said. “No reform, no matter how well intentioned, can be effective until we add real police accountability.”

Opponents argued the bill would contribute to ongoing problems with retaining and recruiting police officers who have cited recent changes to state law as reasons to not enter the law enforcement field in Illinois.

“We have the membership rolls, we see the outcome, we know we're losing membership,” said Andrew Bodewes of the Illinois Fraternal Order of Police. “We're concerned that a change like this would further complicate that.”

“We don't believe that changes in qualified immunity are the correct tool to just solve the problem. Obviously we always want to talk about bettering law enforcement, (we) always want to have that conversation, but we just don't see the value of using this tool,” Bodewes added.

Jim Kaitschuk of the Illinois Sheriffs Association told the committee the legislation could also result in complicating an officer’s decision-making process when arriving on a scene.

“The bill goes a lot further than just eliminating qualified immunity,” Kaitschuk said. “I have a duty to intervene, at the same time, if I do intervene and I didn't act and based on the information that I have in front of me, I'm going to be held liable if somebody else made a mistake or if I detain someone.”

Tarver argued that if law enforcement officers leave the field as a result of the proposed legislation, they did not belong in the field to begin with.

“If this leads to less police officers who are attracted to law enforcement because they know that they can demonize people and brutalize people, then I'm all for it,” Tarver said. “If this leads to attracting the right people, I'm all for it as well.”

Tarver said the legislation is not intended to target police officers unfairly, but rather is designed to hold all officers to a higher standard.

“It's very simple, like everybody else in the private sector, control your employees, hire the best and the brightest, train them, provide the resources,” Tarver said. “If municipalities are concerned, all they have to do is follow that very basic guideline and I think we’d all be in better shape.”

Opponents on the committee, including Reps. Tony McCombie, R-Savanna, and Patrick Windhorst, R-Metropolis, argued the bill goes too far to target a legal defense that is rarely used in Illinois.

Windhorst said that a decertification bill that was signed into law earlier this year serves as a sufficient punishment to “bad apples” in law enforcement, and that the bill calls for a commission to study the effects of qualified immunity.
 

“We passed an expanded decertification law that's now going to be law, where we actually say, ‘bad apple? You're no longer a police officer. You violated somebody's constitutional rights? You're no longer a police officer. You broke the law? You're no longer a police officer.’ That is the effective way to address the bad apples,” Windhorst said.

McCombie echoed concerns about officers leaving the field.

“This bill is going to have many unintended and intended consequences that I feel are going to put our very own public safety at risk,” McCombie said.

Representatives from ACLU of Illinois called the bill’s passage a “significant” response to “egregious police misconduct.”

“For too long, special protections like qualified immunity create an almost insurmountable barrier to justice for people whose constitutional rights have been violated by police,” Khadine Bennett, ACLU Illinois director of advocacy and intergovernmental affairs, said in a statement.

“HB 1727 changes that and provides the people of this state a chance to hold bad police officers accountable when they violate someone’s constitutional rights,” Bennett added.

The bill passed committee on a 4-2 partisan roll call, with support from only Democrats.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.