SB129INTRODUCED
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SB129
PVS2GER-1
By Senators Bell, Gudger, Chambliss, Livingston, Waggoner,
Price, Roberts, Shelnutt, Hovey, Elliott, Weaver, Sessions,
Williams, Allen, Butler, Orr, Jones, Kitchens, Kelley, Melson,
Barfoot
RFD: Judiciary
First Read: 06-Feb-25
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8 PVS2GER-1 02/05/2025 JT EBO JT EBO-2025-40
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First Read: 06-Feb-25
SYNOPSIS:
Under existing law, a peace officer is protected
from tort liability arising out of his or her conduct
in performance of any discretionary function within the
line and scope of his or her law enforcement duties.
Under court precedents interpreting existing law, a
peace officer is not entitled to this protection when
he or she acts willfully, maliciously, fraudulently, in
bad faith, beyond his or her authority, or under a
mistaken interpretation of the law.
This bill would repeal existing law concerning
peace officer immunity and establish a new form of
legal protection for law enforcement officers. This new
protection would foreclose any claim that seeks to
impose civil liability against a law enforcement
officer premised on conduct performed within his or her
discretionary authority unless: (1) the law enforcement
officer acted recklessly without law enforcement
justification or (2) the conduct violated a clearly
established state or federal statutory or
constitutional right of the plaintiff. This bill would
also establish a heightened pleading standard and an
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also establish a heightened pleading standard and an
automatic stay of proceedings to remain in effect while
the law enforcement officer seeks to establish that the
protection applies.
This bill would also provide that a law
enforcement officer is justified in, and immune from
criminal prosecution for, the use of physical force
against a person in the performance of conduct within
his or her discretionary authority unless the use of
force violates the person’s constitutional rights to be
free from excessive force. The bill would entitle a law
enforcement officer to a pretrial hearing to establish
the applicability of this protection. The bill would
also provide for an automatic stay of any criminal
prosecution while the law enforcement officer seeks to
establish that the protection applies.
A BILL
TO BE ENTITLED
AN ACT
Relating to law enforcement officers; to establish
immunity for law enforcement officers from civil liability; to
establish immunity for law enforcement officers from criminal
prosecution; to provide exceptions to such immunities; to
provide procedures for asserting such immunities; to amend
Sections 13A-3-20, 13A-3-27, and 13A-3-28, Code of Alabama
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Sections 13A-3-20, 13A-3-27, and 13A-3-28, Code of Alabama
1975; to repeal Section 6-5-338, relating to peace officer
immunity.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1.For purposes of this act, the following terms
have the following meanings unless the context dictates
otherwise:
(1) CLEARLY ESTABLISHED. A state or federal statutory
or constitutional right is clearly established, and a
reasonable law enforcement officer would have known of it, in
any of the following circumstances:
a. The right is clear from a materially similar case
decided before the occurrence of the relevant conduct by the
United States Supreme Court, the Eleventh Circuit Court of
Appeals, or the Alabama Supreme Court.
b. The right is clear from a broad statement of
principle that is established with so obvious clarity by one
of the courts identified in the preceding paragraph that,
before the occurrence of the relevant conduct, every
objectively reasonable law enforcement officer facing the
circumstances would have known that the relevant conduct
violated the right.
c. The right is so obvious from the text of a federal
or state constitutional provision or statute that, before the
occurrence of the relevant conduct, no objectively reasonable
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occurrence of the relevant conduct, no objectively reasonable
law enforcement officer would have required case law to be put
on notice that the relevant conduct violated the right.
(2) CONDUCT PERFORMED WITHIN A LAW ENFORCEMENT
OFFICER’S DISCRETIONARY AUTHORITY. Governmental conduct by a
law enforcement officer performing a legitimate job-related
function or performing a legitimate job-related goal through
means that were within the law enforcement officer’s plausible
power to utilize. In determining whether governmental conduct
was performed within a law enforcement officer’s discretionary
authority, a court must temporarily put aside that the conduct
may have been committed for an improper or unconstitutional
purpose, in an improper or unconstitutional manner, to an
improper or unconstitutional extent, or under improper or
constitutionally inappropriate circumstances. The court must
determine whether, if done for a proper purpose, the conduct
was within, or reasonably related to, the outer perimeter of a
law enforcement officer’s governmental discretion in
performing his or her official duties.
(3) DETENTION FACILITY OFFICER. Any peace officer,
guard, or detention or jail officer employed in a facility
used for the confinement, pursuant to law, of any of the
following persons:
a. Someone charged with or convicted of an offense.
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a. Someone charged with or convicted of an offense.
b. Someone charged with being or adjudicated a youthful
offender, a neglected minor, or juvenile delinquent.
c. Someone held for extradition.
d. Someone otherwise confined pursuant to an order of a
court.
(4) LAW ENFORCEMENT OFFICER. Any peace officer or
tactical medic, except a constable, who is employed or
appointed pursuant to the Constitution or statutes of this
state, whether appointed or employed as a peace officer or
tactical medic by the state or a county or municipality
thereof, or by an agency or institution, corporate or
otherwise, created pursuant to the Constitution or laws of
this state and authorized by the Constitution or laws to
appoint or employ police officers or other peace officers or
tactical medics, and whose duties prescribed by law, or by the
lawful terms of their employment or appointment, include the
enforcement of, or the investigation and reporting of
violations of, the criminal laws of this state, and who is
empowered by the laws of this state to execute warrants, to
arrest and to take into custody persons who violate, or who
are lawfully charged by warrant, indictment, or other lawful
process, with violations of, the criminal laws of this state.
The term includes a detention facility officer.
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The term includes a detention facility officer.
(5) RECKLESSLY WITHOUT LAW ENFORCEMENT JUSTIFICATION. A
law enforcement officer acts recklessly without law
enforcement justification if he or she is aware of, and
consciously disregards, a risk of death or substantial bodily
injury without reasonable law enforcement justification. A law
enforcement officer who creates a risk of death or substantial
bodily injury in the absence of reasonable law enforcement
justification but is unaware of that risk by reason of
voluntary intoxication, as defined in subdivision (e)(2) of
Section 13A-3-2, acts recklessly with respect thereto. Whether
a law enforcement officer acts without law enforcement
justification is a question of law to be decided by the court.
A law enforcement officer acts without law enforcement
justification when the law enforcement officer fails, in an
objectively unreasonable manner, to comply with written
policies of the law enforcement officer’s employer or
appointing authority or when the law enforcement officer's
conduct is premised on the law enforcement officer's
objectively unreasonable interpretation of such a policy.
(6) TACTICAL MEDIC. A firefighter paramedic or
firefighter emergency medical technician licensed by the State
of Alabama and employed by the state or a county or
municipality within the state, operating on-duty in direct
support of a tactical law enforcement unit to provide medical
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support of a tactical law enforcement unit to provide medical
services at high risk incidences including hostage incidents,
narcotic raids, hazardous surveillance, sniper incidents,
armed suicidal persons, barricaded suspect, felony warrant
service, and fugitives refusing to surrender.
(7) WRITTEN POLICY. A written rule, regulation,
instruction, or directive issued by a law enforcement
officer’s employer or appointing authority, and applicable to
conduct within a law enforcement officer’s discretionary
authority, specifying the particular manner in which a law
enforcement officer should exercise discretion in specific
situations or scenarios. The written rule, regulation,
instruction, or directive must have been issued before the
occurrence of the relevant conduct, and must have been made
available to the extent that every reasonable law enforcement
officer would have known of it.
Section 2.(a) Except as provided in subsection (b), a
law enforcement officer shall be immune from any claim that
seeks to impose civil liability on the law enforcement officer
for conduct performed within a law enforcement officer’s
discretionary authority.
(b) A law enforcement officer shall not be immune in
either of the following circumstances:
(1) The law enforcement officer acted recklessly
without law enforcement justification.
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without law enforcement justification.
(2) The conduct violated a clearly established state or
federal statutory or constitutional right of the plaintiff of
which every reasonable law enforcement officer would have
known at the time of the law enforcement officer’s conduct.
(c) In any civil action against a law enforcement
officer in his or her personal or individual capacity premised
on conduct performed within the law enforcement officer’s
discretionary authority, the complaint must identify with
particularity, for each defendant and for each claim, each of
the following:
(1) The legal authority that assertedly creates the
claim against the law enforcement officer.
(2) Specific factual allegations to satisfy each
element of each asserted claim.
(3) Specific factual allegations demonstrating that the
law enforcement officer lacks immunity pursuant to subsection
(a).
(d) In any civil action against a law enforcement
officer in his or her personal or individual capacity premised
on conduct performed within the law enforcement officer’s
discretionary authority, the court shall promptly dismiss any
claim for which either of the following is true:
(1) The complaint lacks the legal and factual
particularity required under subsection (c), as long as the
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particularity required under subsection (c), as long as the
law enforcement officer, or his or her employer or appointing
authority, has complied with any valid discovery request made
pursuant to subdivision (e)(2) and the Alabama Rules of Civil
Procedure and validly served no later than fourteen days after
the law enforcement officer first appears or otherwise defends
against the lawsuit.
(2) The complaint’s factual allegations, taken as true,
fail to overcome the immunity established by subsection (a).
(e)(1) Except as provided in subdivision (2), the
pendency of a motion to dismiss pursuant to subsection (d)
shall automatically stay the obligation of any party or
non-party to make disclosures or respond to discovery requests
of any kind unless a party establishes any of the following:
a. The motion to dismiss is frivolous.
b. A response to a particularized discovery request is
necessary to preserve evidence.
c. An exception to the stay is necessary to prevent
undue prejudice to prevent a failure or delay of justice
within the meaning of Alabama Rule of Civil Procedure
27(a)(3).
(2) The automatic stay of discovery provided by
subdivision (1) 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
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enforcement officer’s conduct at the time of the specific
events identified in the complaint. Nothing in this act shall
be construed as addressing whether a written policy is a
public record for purposes of Section 36-12-40 et seq., and
nothing in this act shall preclude the entry of a protective
order prohibiting public disclosure of such a written policy.
(3) Unless otherwise ordered by the court, during the
pendency of the stay established by this section, the legal
responsibilities of the parties concerning the preservation of
evidence shall continue.
(f) A law enforcement officer may seek entry of
dismissal or judgment as a matter of law, including summary
judgment, on grounds that he or she is immune pursuant to
subsection (a) as allowed under the Alabama Rules of Civil
Procedure.
(g)(1) A law enforcement officer asserting immunity
under subsection (a) bears the burden of establishing that the
claim is premised on conduct performed within the law
enforcement officer’s discretionary authority as that term is
defined in section 1(2).
(2) Once the law enforcement officer satisfies his or
her burden under subdivision (1), the burden shifts to the
plaintiff to establish that the law enforcement officer is not
immune pursuant to subsection (b).
Section 3.(a) The improper denial of a motion to
dismiss or motion for judgment as a matter of law, including a
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dismiss or motion for judgment as a matter of law, including a
motion for summary judgment, based on the immunity provided
under Section 2(a), or any action improperly allowing
discovery in violation of Section 2(e), shall entitle a law
enforcement officer to mandamus relief from the Alabama
Supreme Court. Any petition for a writ of mandamus pursuant to
this subsection shall be filed pursuant to the Alabama Rules
of Appellate Procedure.
(b) The filing of a petition for a writ of mandamus
shall automatically stay further proceedings in the trial
court unless, and to the extent that, the court validly finds
upon motion of any party that further proceedings are
necessary to prevent irreparable harm.
Section 4.(a) The protections afforded a law
enforcement officer under this act apply to any cause of
action that accrued on or after the effective date of this
act.
(b) The protections available to law enforcement
officers under this act are in addition to, and supplemental
of, any protections available to a law enforcement officer
pursuant to Section 36-1-12, Section 36-22-3, Section 14-16-1,
or Article I, Section 14 of the Alabama Constitution of 2022.
(c)This act is intended to extend immunity only to a
law enforcement officer for conduct performed within a law
enforcement officer’s discretionary authority. No immunity is
extended to any private non-governmental person or entity,
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extended to any private non-governmental person or entity,
including any private employer of a law enforcement officer
during that officer's off-duty hours.
(d) Every private, non-governmental person or entity
who hires a law enforcement officer during that officer's
off-duty hours to perform any type of security work or to work
while in the uniform of a law enforcement officer shall have
in force at least $500,000 of liability insurance, which
insurance must indemnify for acts the off-duty law enforcement
officer takes within the line and scope of the private
employment or contract. The failure to have in force the
insurance required by this subsection shall make every
individual employer, every general partner of a partnership
employer, every member of an unincorporated association
employer, and every officer of a corporate employer
individually liable for all acts taken by the off-duty law
enforcement officer within the line and scope of the private
employment or contract.
Section 5. Sections 13A-3-20, 13A-3-27, and 13A-3-28
Code of Alabama 1975, are amended as follows:
"§13A-3-20
The following definitions are applicable to this
article:
(1) BUILDING. Any structure which may be entered and
utilized by persons for business, public use, lodging, or the
storage of goods, and includes any vehicle, aircraft, or
watercraft used for the lodging of persons or carrying on
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watercraft used for the lodging of persons or carrying on
business therein. Each unit of a building consisting of two or
more units separately occupied or secured is a separate
building.
(2) CONDUCT PERFORMED WITHIN A LAW ENFORCEMENT
OFFICER’S DISCRETIONARY AUTHORITY. Governmental conduct by a
law enforcement officer performing a legitimate job-related
function or performing a job-related goal through means that
were within the law enforcement officer’s plausible power to
utilize. In determining whether governmental conduct was
performed within a law enforcement officer’s discretionary
authority, a court must temporarily put aside that the conduct
may have been committed for an improper or unconstitutional
purpose, in an improper or unconstitutional manner, to an
improper unconstitutional extent, or under improper or
constitutionally inappropriate circumstances. The court must
determine whether, if done for a proper purpose, the conduct
was within, or reasonably related to, the outer perimeter of a
law enforcement officer’s governmental discretion in
performing his or her official duties.
(23) DEADLY PHYSICAL FORCE. Force which, under the
circumstances in which it is used, is readily capable of
causing death or serious physical injury.
(4) DETENTION FACILITY OFFICER. Any peace officer,
guard, or detention or jail officer who, in the exercise of
his or her discretionary authority, is authorized to use
physical force against persons and who is employed in a
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physical force against persons and who is employed in a
facility used for the confinement, pursuant to law, of any of
the following persons:
a. Someone charged with or convicted of an offense.
b. Someone charged with being or adjudicated a youthful
offender, a neglected minor, or juvenile delinquent.
c. Someone held for extradition.
d. Someone otherwise confined pursuant to an order of a
court.
(35) DWELLING. A building which is usually occupied by
a person lodging therein at night, or a building of any kind,
including any attached balcony, whether the building is
temporary or permanent, mobile or immobile, which has a roof
over it, and is designed to be occupied by people lodging
therein at night.
(46) FORCE. Physical action or threat against another,
including confinement.
(7) LAW ENFORCEMENT OFFICER. Any peace officer or
tactical medic, except a constable, who is employed or
appointed pursuant to the Constitution or statutes of this
state, whether appointed or employed as a peace officer or
tactical medic by the state or a county or municipality
thereof, or by an agency or institution, corporate or
otherwise, created pursuant to the Constitution or laws of
this state and authorized by the Constitution or laws to
appoint or employ police officers or other peace officers or
tactical medics, and whose duties prescribed by law, or by the
lawful terms of their employment or appointment, include the
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lawful terms of their employment or appointment, include the
enforcement of, or the investigation and reporting of
violations of, the criminal laws of this state, and who is
empowered by the laws of this state to execute warrants, to
arrest and to take into custody persons who violate, or who
are lawfully charged by warrant, indictment, or other lawful
process, with violations of, the criminal laws of this state.
The term includes any detention facility officer.
(58) PREMISES. The term includes any building, as
defined in this section, and any real property.
(69) RESIDENCE. A dwelling in which a person resides
either temporarily or permanently or is visiting as an invited
guest.
(10) TACTICAL MEDIC. A firefighter paramedic or
firefighter emergency medical technician licensed by the State
of Alabama and employed by the state or a county or
municipality within the state, operating on-duty in direct
support of a tactical law enforcement unit to provide medical
services at high risk incidences including hostage incidents,
narcotic raids, hazardous surveillance, sniper incidents,
armed suicidal persons, barricaded suspect, felony warrant
service, and fugitives refusing to surrender.
(711) VEHICLE. A motorized conveyance which is designed
to transport people or property."
"§13A-3-27
(a) A peace officer is justified in using that degree
of physical force which he reasonably believes to be
necessary, upon a person in order:
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necessary, upon a person in order:
(1) To make an arrest for a misdemeanor, violation or
violation of a criminal ordinance, or to prevent the escape
from custody of a person arrested for a misdemeanor, violation
or violation of a criminal ordinance, unless the peace officer
knows that the arrest is unauthorized; or
(2) To defend himself or a third person from what he
reasonably believes to be the use or imminent use of physical
force while making or attempting to make an arrest for a
misdemeanor, violation or violation of a criminal ordinance,
or while preventing or attempting to prevent an escape from
custody of a person who has been legally arrested for a
misdemeanor, violation or violation of a criminal ordinance.
(b) A peace officer is justified in using deadly
physical force upon another person when and to the extent that
he reasonably believes it necessary in order:
(1) To make an arrest for a felony or to prevent the
escape from custody of a person arrested for a felony, unless
the officer knows that the arrest is unauthorized; or
(2) To defend himself or a third person from what he
reasonably believes to be the use or imminent use of deadly
physical force.
(c) Nothing in subdivision (a)(1), or (b)(1), or (f)(2)
constitutes justification for reckless or criminally negligent
conduct by a peace officer amounting to an offense against or
with respect to persons being arrested or to innocent persons
whom he is not seeking to arrest or retain in custody.
(d) A peace officer who is effecting an arrest pursuant
to a warrant is justified in using the physical force
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to a warrant is justified in using the physical force
prescribed in subsections (a) and (b) unless the warrant is
invalid and is known by the officer to be invalid.
(a) A law enforcement officer shall be justified in
making any use of physical force against a person if the use
of force is conduct performed within the law enforcement
officer’s discretionary authority and does not constitute
excessive force as provided in subsection (b).
(b) No law enforcement officer shall be justified, as
provided in this section, for any use of physical force
against a person if the use of force violates that person’s
rights, under the Constitution of Alabama or the Constitution
of the United States, to be free from excessive force.
(ec) Except as provided in subsection ( fd), a person
who has been directed by a peace officer law enforcement
officer to assist him to effect an arrest or to prevent an
escape from custody is justified in using physical force when
and to the extent that he reasonably believes that force to be
necessary to carry out the peace officer's law enforcement
officer's direction.
(fd) A person who has been directed to assist a peace
officer law enforcement officer under circumstances specified
in subsection (ec) may use deadly physical force to effect an
arrest or to prevent an escape only when:
(1) He reasonably believes that force to be necessary
to defend himself or a third person from what he reasonably
believes to be the use or imminent use of deadly physical
force; or
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force; or
(2) He is authorized by the peace officer law
enforcement officer to use deadly physical force and does not
know that the peace officer law enforcement officer himself is
not authorized to use deadly physical force under the
circumstances.
(ge) A private person acting on his own account is
justified in using physical force upon another person when and
to the extent that he reasonably believes it necessary to
effect an arrest or to prevent the escape from custody of an
arrested person whom he reasonably believes has committed a
felony and who in fact has committed that felony, but he is
justified in using deadly physical force for the purpose only
when he reasonably believes it necessary to defend himself or
a third person from what he reasonably believes to be the use
or imminent use of deadly physical force.
(h) A guard or peace officer employed in a detention
facility is justified:
(1) In using deadly physical force when and to the
extent that he reasonably believes it necessary to prevent
what he reasonably believes to be the escape of a prisoner
accused or convicted of a felony from any detention facility,
or from armed escort or guard;
(2) In using physical force, but not deadly physical
force, in all other circumstances when and to extent that he
reasonably believes it necessary to prevent what he reasonably
believes to be the escape of a prisoner from a detention
facility.
(3) "Detention facility" means any place used for the
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(3) "Detention facility" means any place used for the
confinement, pursuant to law, of a person:
a. Charged with or convicted of an offense; or
b. Charged with being or adjudicated a youthful
offender, a neglected minor or juvenile delinquent; or
c. Held for extradition; or
d. Otherwise confined pursuant to an order of a
criminal court.
(f)(1) A person who uses force, including deadly physical
force, as justified and permitted in this section is immune
from criminal prosecution for the use of such force, unless
the force is determined to be unlawful under this section.
(2) Prior to the commencement of a trial in a case in
which a defense is claimed under this section, the court
having jurisdiction over the case, upon motion of the
defendant, shall conduct a pretrial hearing to determine
whether force, including deadly force, used by the defendant
was justified or was unlawful under this section. During any
pretrial hearing to determine immunity, the defendant must
show by a preponderance of the evidence that he or she is
immune from criminal prosecution.
(3) After a pretrial hearing under subdivision (2), the
case shall not proceed to trial until the court enters a
written order setting forth reasons that the defendant lacks
immunity from criminal prosecution under this section. If the
court concludes that the defendant has proven by a
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court concludes that the defendant has proven by a
preponderance of the evidence that force, including deadly
force, was justified, the court shall enter an order finding
the defendant immune from criminal prosecution under this
section and dismissing the criminal charges.
(4) If the defendant does not meet his or her burden of
proving immunity at the pretrial hearing, he or she may
continue to pursue justification and immunity under this
section as a defense at trial. Once the issue of justification
and immunity under this section has been raised by the
defendant, the state continues to bear the burden of proving
beyond a reasonable doubt all of the elements of the charged
conduct.
(g)(1) A court order improperly denying immunity under
this section, entered after the pretrial hearing provided
under subsection (f), shall entitle the defendant to mandamus
relief from the Alabama Supreme Court. Any petition for a writ
of mandamus pursuant to this subsection shall be filed
pursuant to the Alabama Rules of Appellate Procedure.
(2) The filing of a petition for a writ of mandamus
pursuant to subdivision (1) shall automatically stay further
proceedings in the trial court. The stay shall remain in
effect while the mandamus petition remains pending.
(h) A law enforcement agency may use standard
procedures for investigating the use of force described in
subsection (a), but the agency may not arrest the person for
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subsection (a), but the agency may not arrest the person for
using force unless it determines that there is probable cause
that the force used was unlawful under this section. "
"§13A-3-28
A person may not use physical force to resist a lawful
arrest by a peace officer law enforcement officer who is known
or reasonably appears to be a peace officer law enforcement
officer."
Section 6.Section 6-5-338, relating to peace officer
immunity, is hereby repealed.
Section 7. This act shall become effective on October
1, 2025.
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