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Rakin Hamad
Associate Attorney
Curcio Law
703-836-3366

During the time of empires and absolute rulers, a concept of “Crown Immunity” was born. Derived from the saying “the King can do no wrong,” this concept stood for the proposition that you cannot sue the king because, as the saying goes, the king can do no wrong. This concept evolved into the legal maxim of sovereign immunity, which is defined as you cannot sue a state for a legal wrong. 

The purposes of sovereign immunity include shielding taxpayers from paying civil judgments, necessitating an effective operation of the government, and protecting from improper citizen influence due to the threat of litigation. For jobs like police officers, the main reason the state offers immunity is to eliminate the public danger that would arise if an officer was afraid to act due to the possibility of civil litigation. 

Currently, the law in Virginia has grown into qualified immunity or the theory that officials and employees of the state may be immune from suit if they qualify. In the wake of George Floyd’s death in Minneapolis at the hands of law enforcement officers, some activists and lawmakers are calling for an end to qualified immunity. 

If you’re injured or impacted by police misconduct or negligence, you may assume that you’ll be able to sue the officers responsible and receive damages — but qualified immunity complicates things. In Virginia, all officials and employees of the state, including police officers, are immune from civil suit if they qualify under the James v. Jane test. 

To qualify for sovereign immunity, the government official’s action must pass a four-prong test established in James v. Jane, a case decided by the Supreme Court of Virginia in 1980. The four factors in the James v. Jane test are:

  1. The nature of the employee’s work. If the nature of the employee’s work is governmental, this factor would weigh towards granting sovereign immunity.
  2. The state’s involvement in the employee’s work. The greater interest and involvement the state has in the employee’s function, the more this factor weighs towards granting sovereign immunity.
  3. The degree of control the state has over the employee. The more control a state has over an employee, the more this factor weighs in favor of immunity, a low level of control weighs against immunity.
  4. Whether the negligent act in question involved judgment and discretion. Recognizing that almost every task includes judgment and discretion, if judgment and discretion, beyond ordinary levels, is needed by the employee in effectuating the governmental purpose, this factor weighs in favor of immunity.

The test is set up for each factor to weigh for or against granting sovereign immunity. The James v. Jane test is very broad and does not create any hard-line rules. Subsequent case law has tried to give a more concrete definition to each factor. 

While law enforcement officers aren’t guaranteed sovereign immunity, there’s still controversy about whether it should be an option in the first place. Some argue that qualified immunity allows government officials to bypass accountability. Others say it’s a necessary standard that ends up benefitting the citizens of the state.

The legal landscape of sovereign immunity may be changing, as there may be new legislation to end qualified immunity. Tens of thousands have signed a petition demanding an end to it, and lawmakers are responding accordingly. Introduced by independent U.S. Rep. Justin Amash in June, the “Ending Qualified Immunity Act” would allow people to sue police for illegal behavior. It’s unclear whether the bill will become law. Still, it’s a concept with bipartisan support — U.S. Senator Cory Booker, a Democrat, plans to introduce legislation to reform qualified immunity. Sovereign immunity has been a legal standard for decades, but it could soon come to an end. 

If you or a loved one have been injured by an entity that may have sovereign immunity, call us at 703-836-3366, email rhamad@curciolaw.com, or visit us at curciolaw.com.

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