General
Alabama’s new law expanding legal immunity for police officers will make it harder to hold cops accountable for wrongdoing, an attorney who specializes in civil rights cases against police said.
Lauren Bonds, executive director of the National Police Accountability Project, said it is already difficult for people harmed by police to get relief through the court system, especially federal courts.
“State courts are sometime a better avenue for people who are harmed by law enforcement to get relief,” Bonds said. “This is making it even harder to find alternative relief in state courts.
“I think it will make state court and federal court equally difficult places to vindicate your civil rights.”
HB202, sponsored by Rep. Rex Reynolds, a former police chief in Huntsville, rewrites Alabama’s law on civil and criminal immunity for police.
The legislation was a priority for Gov. Kay Ivey and Republican leaders in the Legislature, who called it the “back the blue” bill.
Reynolds said the legal protections are needed at a time when cities cannot hire and keep enough officers to protect the public.
Alabama’s immunity law had not been updated since 1979 and needed to be aligned with U.S. Supreme Court rulings, Reynolds said.
Alabama’s Democratic lawmakers opposed the bill and said it would make it harder for families to get justice when a loved one is killed or harmed by police.
Sen. Rodger Smitherman, D-Birmingham, even called it “a license to kill Black people” because he said Black people are more likely to be shot or hurt by a police officer who makes a bad decision out of fear or racism.
“We don’t get the benefit of the doubt,” Smitherman said. “I don’t care what it is. Black folks don’t get the benefit of the doubt.”
Rep. Chris England, D-Tuscaloosa, said it was already rare for police to be charged with crimes when they injure or kill someone through the use of force on their jobs.
“This is not about backing the blue because we all recognize the importance of law enforcement,” England said.
“But as a legislator, as government officials, we also have to represent the average citizen in that same situation.
“So we back the blue. But we also protect the individual rights of people to be from unconstitutional use of force.”
Sen. Lance Bell, R-Pell City, the Senate sponsor of the bill, is a lawyer who served as a sheriff’s deputy in St. Clair County during most of the 1990s.
“Walk a mile in law enforcement officer’s shoes,” Bell said.
“Every decision he makes out there is critiqued for years down the road. And they don’t have the ability to sit back and analyze and think and say, ‘Well should I do it or should I not?’
“Their training is what gets them ready for that split-second decision. And that decision could mean life or death for not only them, but other people in the public.”
Republicans hold three-fourths of the seats in the Alabama Legislature and passed the bill in the last half-hour of the annual session late Wednesday night.
Ivey, who urged lawmakers to pass the bill starting with her State of the State address in February, signed it the next day.
New standards and definitions
Bonds, the director of the National Police Accountability Project, said Alabama’s new law will make it harder for people harmed by police to get justice.
In civil cases, the law grants immunity for “conduct performed within a law enforcement officer’s discretionary authority,” with exceptions.
Bonds said the definition of “discretionary authority” is broad.
“There’s so many different situations in which an officer would need to use their discretion,” Bonds said.
“Whether to make an arrest. Whether to shoot somebody. Whether to execute a raid. Whether to obtain a warrant.
“Most law enforcement conduct is discretionary. So this is sweeping a little bit broader than immunities that were previously in the statute.”
The new law says immunity does not apply if the officer “acted recklessly without law enforcement justification” and violated a clearly established state law or constitutional right.
Physical use of force
The bill repeals Alabama’s previous law that defined when police are justified in the use of physical force.
The new law says any use of physical force against a person is justified if the law enforcement officer is acting within their discretionary authority, unless that action violates the person’s constitutional rights.
Bonds said police misconduct could be a crime even if it does not violate constitutional prohibitions on excessive use of force, which she said are based on the 4th Amendment.
Examples could be cases when people are harmed because police recklessly engaged in a high-speed pursuit or improperly applied a physical restraint on a suspect, Bonds said.
“Those are situations where even if there isn’t a constitutional violation, there still could potentially be a criminal violation under a standard of criminal negligence as opposed to a standard of criminal intent,” Bonds said.
Rep. Prince Chestnut, D-Selma, raised the same point when debating with Reynolds, the sponsor, on the House floor Wednesday night shortly before the bill got final approval.
“That’s great, covering constitutional violations,” said Chestnut, who is a lawyer.
“But you know as the former police chief that there is police misconduct that is not necessarily unconstitutional yet is still misconduct nonetheless.”
Chestnut said an example could be a police officer who failed to intervene when another officer was beating a suspect unnecessarily.
Reynolds repeated a statement he has made several times about what he considers the core of the bill.
“This is the basis of the bill,” Reynolds said.
“Law enforcement officers who use force constitutionally while carrying out their duties are immune from prosecution. And secondly, law enforcement officers are not immune from any unconstitutional use of force during the execution of their duties.”
Pre-trial hearing
Under the new law, police officers charged with a crime involving the use of force can file a motion with the court to assert that their actions were justified and that they are immune from prosecution.
The court must hold a pre-trial hearing within 45 days after the defendant files that motion to determine whether immunity applies.
The court must rule on the immunity request within 45 days after the hearing.
If the court rules the officer is not immune, the officer has a right to have the Alabama Supreme Court review that decision.
Reynolds said police should have a chance to assert immunity before a trial proceeds.
“Oftentimes they make this decision on their discretionary authority within seconds when an incident happens. And the least we can do is pause that,” Reynolds said.
Alabama already had a similar pre-trial hearing process under the state’s “stand your ground” law, which allows any citizen, including police officers who are accused of a crime, to argue that they acted in self-defense or in defense of others.
Former Decatur police officer Mac Marquette, charged with murder in the 2023 shooting death of Steve Perkins, filed a self-defense claim of immunity under the stand your ground law but the judge ruled against him. Marquette is appealing that decision.
The new police immunity law says courts will try, to the extent practicable, to hold the immunity hearings and “stand your ground” hearings the same day.
Chestnut said the new immunity hearings, coupled with the “stand your ground” hearings, means that police officers “two bites at the apple” to have charges dropped.
Double standard?
England said the new law adds protections for cops accused of crimes that do not apply to other defendants.
“Because you’re a police officer, I have to do things for you in terms of prosecuting you criminally that I don’t have to do for anyone else,” England said.
England said criminal cases involve presenting facts and applying them to the law, but not proving constitutional rights violations, as the new law requires when police are the defendants.
“And every element you add to this makes it even less likely that that person who committed that offense will be held accountable,” England said.
England said there’s no evidence that police have not been sufficiently protected under the immunity laws Alabama has had in place for decades.
He said it’s unusual for police to face charges for causing an injury or death in the line of duty other than a few high-profile cases in recent years.
Those include Marquette’s case in Decatur, Montgomery police officer Aaron Cody Smith, convicted of manslaughter in 2019 for the 2016 shooting death of Gregory Gunn, and Huntsville police officer William Ben Darby, who was initially convicted of murder and later pleaded guilty to manslaughter in the 2018 shooting death of Jeff Parker.
In 2024, as Gunn appealed his conviction, Alabama Attorney General Steve Marshall took over Gunn’s case from the Montgomery County District Attorney’s Office with no explanation. Marshall then announced his office reached a plea deal with Gunn and released him on time served.
Darby in 2023 was sentenced to 20 years, but the sentence was split and reversed for him to serve three years of probation.
“If it rarely happens, then is the standard no one – as long as you’re in law enforcement, as long as you’re wearing a uniform – should it be next to impossible to hold you accountable civilly and especially criminally for something that happens?” England said.
There are more effective ways to support law enforcement than rewriting the immunity law, such as reinstating the requirement for a permit to carry a handgun concealed or in a vehicle and making sure police have all the resources they need, England said.
“This isn’t for the good police officers, which are a lion’s share of the police officers,” England said of the expanded immunity.
“This is going to make it more difficult to hold the bad ones accountable.”
Studying the impact
The new law requires every state, county, and municipal law enforcement agency to collect and report information on each use of force complaint received by the agency, including a description of the type of use of force alleged and the race of the officer involved and the person alleged to have been subjected to excessive force.
The Alabama Peace Officers Standards and Training Commission will compile the information and send an annual report to the Legislature.
The bill creates a six-member commission of lawmakers to study the impact of the law, including its interpretation by the courts and its effect on hiring and retention of police officers.
Bell, the House sponsor, said if there are gaps in the new law, it can be revised as those become apparent.
“I’m sure there’s things that will play out over time and we may have to come back and tweak this,” Bell said.
“Always when we pass something, there’s always little things that come back later we don’t realize. We have to tweak things to fit some scenario that we never even dreamed of.”
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