West Virginia lawmakers will be considering legislation called the “Protecting Everyone’s Constitutional Rights Act.” According to the Tenth Amendment Center’s Amanda Bowers, the bill would:

…create a cause of action in state courts to sue a government agency, including police departments, “for an injury caused by an act or omission of a government employee under the color of law in violation of a right under the laws or constitution of this State or the United States.”

The bill specifically prohibits “qualified immunity” as a defense.

Qualified immunity is a Supreme Court creation that over time has become a nearly perfect shield for government officials and law enforcement to violate an individual’s constitutional rights without consequences.

Bowers notes there are some big questions about the West Virginia bill, including whether it would allow “police officers…to transfer cases to federal jurisdiction in order to take advantage of qualified immunity.”

Using federalism to address qualified immunity, for now, the most likely reform path, owing to both the Supreme Court and Congress demonstrating their unwillingness to take up the issue:

…the High Court recently rejected several cases that would have allowed it to revisit the issue. For instance, the SCOTUS let stand an Eleventh Circuit decision granting immunity to a police officer who shot a ten-year-old child in the back of the knee, while repeatedly attempting to shoot a pet dog that wasn’t threatening anyone.

Congress could prohibit qualified immunity. A bill sponsored by Rep. Justin Amash (L-Mich.) and  Ayanna Pressley (D-Mass.) during the last Congress would have done just that, but it was never taken up. Congress does not have a good track record on reining in government power.