House Judiciary Committee advances law-enforcement immunity bill after extended debate

The House Judiciary Committee on Monday gave House Bill 202 a favorable report as amended after two adopted amendments and lengthy debate over criminal and civil immunity for law enforcement officers.

The bill, carried in committee as a substitute and amended twice, would alter the statutory process by which officers can assert immunity or justification for use of force and would attempt to ensure municipal officers retain protections currently available to state agents under section 36-1-12 by folding related language into the bill.

Supporters, including the bill sponsor and several members of the law-enforcement community, said the measure will create uniform treatment of officers across jurisdictions and preserve existing protections for municipal officers after the bill repeals a separate municipal immunity statute. “We think we've got it worked out,” said an attorney advising the committee, referring to negotiations with stakeholders.

Opponents warned the bill would import civil-law standards into criminal prosecutions and could make it harder for prosecutors to try cases involving alleged excessive force. A prosecutor who spoke at the committee said the bill could require prosecutors to prove “that a law enforcement officer was operating outside of their discretionary authority” and to show that the officer’s conduct also violated a clearly established constitutional right before the criminal elements could be reached. He said those added steps risked inserting novel, civil-style legal inquiries into jury deliberations and could create more procedural hurdles than currently exist.

Committee members pressed on several details. Representative Simpson offered an amendment described as technical and clarifying; Representative Tillman offered pretrial and hearing-timing language that the committee treated as friendly and adopted. Committee counsel and outside attorneys explained that the language on municipal immunity and cross-references to code sections 6-5-3-38 and 36-1-12 was intended to maintain protections municipal officers currently receive indirectly via the municipal-officer immunity statute the bill would repeal.

Representative England and others asked whether the bill would apply retroactively to recent incidents; committee staff and the sponsor clarified the bill includes an effective date and is not written to be retroactive. Representative McClammy recounted a past local case involving the fatal shooting of Gregory Gunn and said the bill raised concerns about shielding officers from accountability in the sort of fact patterns that previously resulted in criminal prosecution and conviction.

After discussion and adoption of two amendments, the committee voted to give the substitute as amended a favorable report.