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Proposed Legislation In Illinois Seeks to Eliminate Qualified Immunity Defense for Law Enforcement

On February 17, 2021, Illinois Rep. Curtis J. Tarver, II introduced HB 1727, which would eliminate the qualified immunity defense for Illinois police officers and increase the potential damages in lawsuits alleging deprivation of individual rights under the Illinois Constitution. This bill is not the first of its kind. All the attention garnered by several high-profile incidents in the last eleven months has put laws addressing not only the criminal culpability but the civil liability of on-duty police officers under the spotlight. In recent weeks, New Mexico became the third state (joining Colorado and Connecticut) to legally bar qualified immunity and similar proposed legislation passed the U.S. House of Representatives.

The doctrine of qualified immunity has historically applied to all government officials, not just police officers. While the law in New Mexico bars qualified immunity entirely, HB 1727 only eliminates the defense for police officers in claims involving the deprivation of individual rights afforded by the state constitution. HB 1727 also eliminates qualified immunity for officers who allegedly failed to intervene where a fellow officer violated individual rights, which mirrors the laws passed in Colorado and Connecticut.

Finally, HB 1727 enhances the damages at issue in civil rights cases against Illinois police officers. A prevailing plaintiff would be awarded attorneys’ fees and litigation expenses, including fees for expert witnesses. Furthermore, HB 1727 does not cap the total award of damages. A prevailing defendant may be awarded attorneys’ fees and litigation expenses upon a showing that the plaintiff’s claim was “frivolous.” HB 1727 does not, however, address indemnification for a police officer found liable. While Colorado’s legislation limits the exposure of an individual officer and New Mexico generally shifts the entire cost of an adverse judgment onto the public entity, HB 1727 is silent on this point.

At Behr, McCarter, Potter, Neely, & Hyde PC, we have a 30-year history of defending governmental entities in all matters of litigation. Our attorneys are licensed in Missouri and Illinois and have represented municipalities in matters ranging from class-actions and wrongful death litigation to state and federal employment discrimination. We continuously monitor legislation and trends impacting governmental entities, including Illinois HB 1727. To learn more or discuss how we can best represent you, please contact us.

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