Entering the national conversation about police accountability and reform, West Virginia legislators are considering a measure that would remove the shield of qualified immunity for government employees — particularly law enforcement officers — charged with taking actions that violate constitutional rights.

The legislation, named the Protecting Everyone’s Constitutional Rights Act (HB4362), was introduced in the West Virginia House by Republican Delegate Chris Pritt on January 10, 2024. It would empower individuals to pursue legal, equitable or other forms of relief in state courts for injuries resulting from acts or omissions of government employees acting under the color of law. The legislation explicitly eliminates the qualified immunity defense, which has long served as a formidable barrier to holding law enforcement officers accountable for misconduct.

One of the major aspects of the proposed law is its provision for attorney fees and the termination of contracts, agreements or employment with any party found liable. Additionally, HB4362 establishes a three-year statute of limitations, giving individuals have an extended timeframe within which to pursue legal action.

The legislation represents a departure from the norm in police accountability lawsuits. Individuals seeking recourse for alleged police misconduct, such as excessive use of force, often have turned to the federal court system, but the doctrine of qualified immunity has posed a substantial obstacle. Federal courts require plaintiffs to demonstrate that it was "clearly established" that an officer's actions were unconstitutional — a standard that has often proven insurmountable.

In contrast, HB4362 would provide a direct avenue for individuals to seek justice at the state level, where the parameters of liability are determined by West Virginia law rather than federal precedent. The bill leaves open the possibility that officers can seek to have their case removed to federal court to consider U.S. constitutional issues. However, a federal court would be limited to deciding whether or not a U.S. constitutional violation had taken place, while applying the West Virginia law regarding state constitutional violations.

West Virginia's proposed legislation, which has been referred to the House Judiciary Committee, follows in the path of other states that have taken similar steps to address police accountability. Colorado and New Mexico have already passed laws aimed at curbing the application of qualified immunity, while California has taken measures to close some loopholes in its state law.

As the bill makes its way through the legislative process, it has the potential to reshape the landscape of police accountability in West Virginia. As such, it will significantly affect the ability of law enforcement officials to raise effective defenses against claims of civil rights violation or excessive use of force.

Pullin, Fowler, Flanagan, Brown & Poe, PLLC in Charleston advises municipalities and law enforcement agencies throughout West Virginia. Please call 304-344-0100 or contact us online to arrange a consultation.