A1006

An Act concerning qualified immunity, supplementing Title 10 of the Revised Statutes, and amending R.S.59:3-3.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. a. (New section) As used in this section:

“Law enforcement officer” means any person who is employed as a permanent member of a law enforcement agency or an auxiliary or volunteer officer acting under color of law, who is statutorily empowered to act for the detection, investigation, arrest, and conviction of persons violating the criminal laws of this State, or statutorily required to successfully complete a training course approved by the Police Training Commission pursuant to P.L.1961, c.56 (C.52:17B-66 et seq.), or certified by the commission as being substantially equivalent to an approved course. This term shall include Class I, Class II, and Class III special law enforcement officers appointed pursuant to the provisions of P.L.1985, c.439 (C.40A:14-146.8 et seq.); probationary and temporary police officers; school and campus police officers; county correctional police officers; State correctional police officers and investigators of the Department of Corrections; and parole officers employed by the State Parole Board.

“Public entity” means the State and any county, municipality, district, public authority, public agency, or any other political subdivision or public body in the State.

b. A defendant shall not be granted qualified immunity from suit under P.L.2004, c.143 (C.10:6-1 et seq.) and it shall not be a defense to any action brought under P.L.2004, c.143 (C.10:6-1 et seq.) that:

(1) the defendant was acting in good faith or that the defendant believed, reasonably or otherwise, that the defendant’s conduct was lawful at the time the conduct was committed; or

(2) the rights, privileges, or immunities secured by the United States Constitution or laws of the United States, or any rights, privileges, or immunities secured by the New Jersey Constitution or laws of this State were not clearly established at the time of their deprivation by the defendant, or that at that time, the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether the defendant’s conduct was lawful.

c. The State shall not be entitled to sovereign immunity for itself or any public entity within the State for claims brought pursuant to P.L.2004, c.143 (C.10:6-1 et seq.), and the public entity or person acting under color of law or law enforcement officer acting on behalf of, under color of, or within the course and scope of the authority of the public entity shall not assert sovereign immunity as a defense or bar to an action under P.L.2004, c.143 (C.10:6-1 et seq.).

d. The prohibition on the use of qualified immunity pursuant to this section shall not abrogate:

(1) judicial, legislative, or any other statutory immunity; or

(2) the use of qualified immunity regarding claims brought pursuant to subsection c. of section 2 of P.L.2004, c.143 (C.10:6-2).

2. R.S.59:3-3 is amended to read as follows:

59:3-3. a. A public employee is not liable if [he] the employee acts in good faith in the execution or enforcement of any law.

b. Nothing in this section [exonerates] shall exonerate a public employee from liability for:

(1) false arrest or false imprisonment; or

(2) unjustified use of force or deadly force in violation of N.J.S.2C:3-7 or the use of force guidelines promulgated by the Attorney General.

c. It shall not be a defense pursuant to this section with respect to any cause of action for unjustified use of force or deadly force in violation of N.J.S.2C:3-7 or a violation of the "New Jersey Civil Rights Act," P.L.2004, c.143 (C.10:6-1 et seq.), that the plaintiff’s rights, privileges, or immunities were not clearly established at the time of their deprivation.

(cf: P.L.1972, c. 45, s.3)

3. This act shall take effect immediately.

STATEMENT

This bill eliminates qualified immunity and sovereign immunity in certain cases. Under the qualified immunity doctrine, public employees are immune from civil liability when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In determining whether a public employee is entitled to qualified immunity, a court is required to inquire whether: (1) the facts, taken in the light most favorable to the party asserting the injury, show the public employee’s conduct violated a constitutional right; and (2) that constitutional right was clearly established at the time that the defendant acted.

Under the provisions of this bill, a defendant is not to be granted qualified immunity from suit under the New Jersey Civil Rights Act and it is not a defense in any action brought under the act that:

1) the defendant was acting in good faith or that the defendant believed, reasonably or otherwise, that the defendant’s conduct was lawful at the time the conduct was committed, or

2) the rights, privileges, or immunities secured by the United States Constitution or laws of the United States, or any rights, privileges, or immunities secured by the New Jersey Constitution or laws of this State were not clearly established at the time of their deprivation by the defendant, or that at that time, the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether the defendant’s conduct was lawful.

In addition, under the bill, the State is not entitled to sovereign immunity for itself or any public entity within the State for claims brought pursuant to the New Jersey Civil Rights Act. In addition, the public entity or person acting under color of law, or a law enforcement officer acting on behalf of, under color of, or within the course and scope of the authority of the public entity is not to assert sovereign immunity as a defense or bar to an action under the act.

Further, the bill provides that the prohibition on the use of qualified immunity under the bill is not to abrogate judicial, legislative, or any other statutory immunity. The bill’s prohibition also does not abrogate the use of qualified immunity for claims brought by a person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the New Jersey Constitution or laws, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law.

In addition, the bill provides that public employees and employers are not immune from civil liability for unjustified use of force or deadly force or violations of the use of force guidelines for law enforcement officers promulgated by the Attorney General. The bill prohibits public employees and employers from invoking a defense that the plaintiff’s rights, privileges, or immunities were not clearly established at the time of their deprivation in causes of action for unjustified use of force or violations of the New Jersey Civil Rights Act.