Rep. Rex Reynolds, R-Huntsville (top) speaks with a colleague on the floor of the Alabama House of Representatives on Feb. 20, 2025 at the Alabama Statehouse in Montgomery, Alabama. A police immunity bill sponsored by Reynolds drew criticism at a public hearing on Wednesday, and is expected to change. (Brian Lyman/Alabama Reflector)
Civil rights groups expressed serious concerns a bill that could significantly expand the scope of police immunity during a public hearing on the measure on Wednesday.
Supporters say HB 202, sponsored by Rep. Reynolds, R-Huntsville, is aimed at improving the recruitment of police, but critics said it would further fortify what they described as a culture of impunity among law enforcement.
“We know that many of the police officers receive little to no punishment when they commit a crime because they are hiding behind the badge and say they fear for their lives,” said Jean Sanders, who testified on behalf of NAACP Alabama State Conference. “It is very difficult to have police officers arrested, and more difficult to bring charges against officers. The NAACP receives calls almost daily about mistreatment by police officers.”
The precise effect of the bill is not clear. Members of the House Judiciary Committee on Wednesday introduced a substitute version of the bill and said there could be additional changes after that substitute was adopted. A copy of the substitute was not available on Thursday afternoon. The committee did not vote on the measure on Wednesday.
But as filed, HB 202 alters the standard by which law enforcement can be held accountable for their misbehavior.
The current standard holds police and sheriffs’ deputies liable if they act “willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”
HB 202 changes that to offer law enforcement immunity from all types of potential misconduct, so long as the officer does not violate a person’s rights that are identified in either state or the U.S. Constitution. The bill also protects law enforcement from civil litigation unless they acted recklessly without justification or if they violated people’s constitutional rights.
The legislation also expands police immunity protections to other classes of individuals, such as corrections officers working in a jail or prison and “tactical medics” health personnel who work alongside law enforcement in certain cases.
“This bill would provide that a law enforcement officer is justified, and immune from, criminal prosecution from use of force against a person in the performance of conduct in his or her discretionary authority, unless the use of force violates a person’s constitutional right to be free from that excessive force,” Reynolds said.
Democrats were not involved in the discussions regarding the legislation. Upon questions from the committee, Reynolds said that no community groups or civil rights advocates were involved in drafting the legislation.
“Although I was not involved early on in the development of this bill with the Governor’s Office, I know that since the bill was dropped, I have sent the bill out to all the organizations, I sent it to the Sheriffs, the Police Chiefs, the FOP (Fraternal Order of Police), I know the trial lawyers are involved in this conversation, the DAs, along with the state agencies, both ALEA (Alabama Law Enforcement Agency) and the governor’s office,” Reynolds said.
The bill also protects law enforcement on procedural grounds.
When law enforcement either injures or causes someone’s death, the legislation requires that a court first have a pretrial hearing to determine whether the law enforcement is immune from prosecution, which is afforded to officers so long as they do not violate a person’s constitutional rights.
If the court finds that the officer is immune from prosecution, then the criminal case is dismissed. If the court rules against the officer, the court must then issue a written order that outlines the reasons that the law enforcement officer is not immune from prosecution. The law enforcement officer may then appeal the ruling to the Alabama Supreme Court.
Even if a court rules that the officer is not immune from prosecution, the officer can continue to claim immunity during the trial and the state, in this case the prosecution, continues to bear the burden of proving that the officer is not immune from prosecution to the jury.
On civil matters, when victims or their family members file lawsuits seeking damages for alleged misconduct by police, the plaintiffs must show that an officer violated a law or right that is “clearly established.”
Under the bill, a clearly established right is one that the officer “would have known” because of similar cases decided by the United States Supreme Court, the Eleventh Circuit Court of Appeals, or the Alabama Supreme Court.”
To win a civil litigation case against a law enforcement officer, the plaintiffs must state their legal authority, the factual allegations of misconduct, as well as the facts indicating the reasons that the law enforcement officer is not protected by immunity.
In civil litigation cases, the process begins with the lawsuit which then starts the process for gathering evidence, called discovery. The bill states that a law enforcement officer can file a motion to dismiss in the case, which Rep. Chris England, D-Tuscaloosa, a member of the committee, said after the meeting “always happens. They always file a motion to dismiss.”
Once a law enforcement officer files a motion to dismiss, all attempts at gathering and finding evidence are halted except for one, which “does not prohibit the plaintiff from seeking production of any written policies governing the law enforcement officer’s conduct at the time of the specific events identified in the complaint.”
After that, a court will conduct a pretrial hearing to determine whether the law enforcement officer has immunity, before the determination of misconduct begins.
As in criminal cases, a law enforcement officer may appeal an adverse ruling to the Alabama Supreme Court.
Democrats criticize bill
House Democrats publicly expressed their reservations regarding HB 202 prior to the public hearing in committee. The caucus said they support efforts from the Republican Conference to enhance public safety but balked at legislation but balked at bills that enhance criminal penalties and that do not institute reforms to the criminal justice system.
Republicans on the committee were largely silent during the public hearing, with just about all supporting the measure, but Democrats pressed supporters on the language in the legislation.
“What is the ‘would have known’ standard?” England asked Will Parker, general counsel for the Governor’s Office.
Parker said that standard protects law enforcement officers in issues related to immunity. He said that helps to ensure that law enforcement officers are aware that a specific conduct could get them into trouble before they are held accountable for it.
“The U.S. Supreme Court has described qualified immunity as a doctrine that gives law enforcement officers in the field breathing room to make reasonable, if mistaken, judgments of law because there is tons of law coming out from court decisions.”
Law enforcement remains immune, according to the legislation, if they were not made aware that their actions could create problems.
“If there is some case that they have not heard about, whatever, it comes down to whether the officer reasonably would have known of that right,” Parker said.
“‘Would have known’ almost heightens what is necessary to demonstrate that this person violated my constitutional rights,” England said.
England also took issue with civil procedure that bars discovery or the ability for a plaintiff filing a civil complaint when the officer files a motion to dismiss.
“How do I do that if my ability to get discovery is stayed, and the only thing that this law requires the defendant to give me is just a written policy, how do I substantiate my claim without access to the information necessary to make it?”
Parker agreed.
“One of the advantages for law enforcement in this bill is procedural protections that are being added here,” Parker said. “On the pleading requirement, and the other is the stay, so that these issues can be decided earlier hopefully.”
Other Democrats, such Rep. Ontario Tillman, D-Bessemer, and Rep. Prince Chestnut, D-Selma, had concerns with the criminal aspects of the bill.
Tillman asked those who helped craft the bill how far an officer would have to go in terms of use of force for the action to be unconstitutional enough that the officer could be found liable.
“Any real-time example of what would be considered unconstitutional, excessive force,” Tillman said.
Noel Barnes, general counsel for Alabama Law Enforcement Agency, refused to name one.
“That is really for the court to decide,” he said. “What we want here is a standard. It is hard to define what is objectively reasonable. Various cases have gone up through the U.S. Supreme Court where the court has gone through the analysis.”
Tillman also asked whether the victim could make an appeal to the Alabama Supreme Court if the trial court finds in favor of the law enforcement officer because the law enforcement officer is afforded that right in the bill.
“That would be a dismissal of the case, and the district attorney would have the immediate right to appeal that dismissal because it is a final order, just like any other final order in a criminal case,” Barnes said.
Chestnut asked about the purpose for creating additional procedures in the state’s criminal code.
“It is almost like overkill, and it creates a situation or a scenario where this is pro one side, which is not where the law should be,” Chestnut said. “You are creating an equal protection issue for no reason.”
Barnes said the appeal is important because, “it is not expressly clear that the officer would have the right to go up because that is not a final order.”
Other members of the public objected to the bill.
“I oppose House Bill 202, which in my opinion is a modern-day racial terror law first, disregarding Fourth Amendment rights,” said Travis Jackson, a social justice activist based in Montgomery.
He mentioned several issues during his testimony, from the dangerous use of tasers to police shootings that sparked protests throughout the country.
“It has been a historical fact, when there has been an increased demand for police accountability, there has been an increased demand for ‘Back the Blue’ act recommendations preventing police accountability,” Jackson said.
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