SWB:emw
2021 - 2022 LEGISLATURE
March 23, 2021 - Introduced by Representatives Brostoff, L. Myers, Bowen,
Cabrera, Moore Omokunde, Shelton, Drake, Hebl, Hong, Anderson,
Ortiz-Velez, Considine, Neubauer, Haywood, Baldeh, Goyke and Spreitzer,
cosponsored by Senators Johnson, L. Taylor and Roys. Referred to
Committee on Criminal Justice and Public Safety.
AB186,1,4
1An Act to repeal 895.46 (1) (b), (d), and (dm); and
to create 893.822 and 895.46
2(6m) of the statutes;
relating to: eliminating public official immunity as a
3defense to civil liability claims against law enforcement officers and prohibiting
4indemnification for judgments against law enforcement officers.
Analysis by the Legislative Reference Bureau
This bill provides that immunity granted to public officials under current law
does not apply and is not a defense to civil liability claimed against a law enforcement
officer for any act or failure to act by the officer done in an official capacity or in the
course of his or her agency or employment.
With certain exceptions, current law grants public officials, including law
enforcement officers, immunity from liability for actions taken while acting in an
official capacity or in the course of his or her employment or agency. Public officer
immunity provides immunity from suit for “acts done in the exercise of legislative,
quasi-legislative, judicial or quasi-judicial functions.” As stated by the Wisconsin
Supreme Court, there is, with exceptions, a “general rule of immunity for public
officers in their performance of acts within the scope of employment.” Brown v.
Acuity, 2013 WI 60, ¶ 42, 348 Wis. 2d 603, 623, 833 N.W.2d 96, 106.
The bill also eliminates certain indemnification available under current law for
law enforcement officers. Under current law, law enforcement officers and other
local and state officers, employees, and agents may be eligible for indemnification by
the governmental entity that employs them for any judgment against them (in excess
of any available insurance) for acts committed while carrying out their duties if the
individual is found to be acting within the scope of employment. With certain
exceptions, under current law, officers, employees, and agents may also be entitled
to legal counsel or, if legal counsel is not provided, indemnification for the costs of
legal representation.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB186,1
1Section 1
. 893.822 of the statutes is created to read:
AB186,2,4
2893.822 Claims against law enforcement officers; limitations on
3immunity. (1) In this section, “law enforcement officer” has the meaning given in
4s. 165.85 (2) (c).
AB186,2,8
5(2) Immunity granted to public officials under s. 893.80 (4) or afforded under
6common law does not apply and may not be raised as a defense to civil liability
7claimed against a law enforcement officer for any act or failure to act by the officer
8done in an official capacity or in the course of his or her agency or employment.
AB186,2,10
9(3) Nothing in this section may be interpreted as affecting any sovereign
10immunity rights available to the state.
AB186,2
11Section
2. 895.46 (1) (b), (d), and (dm) of the statutes are repealed.
AB186,3
12Section
3. 895.46 (6m) of the statutes is created to read:
AB186,2,1413
895.46
(6m) (a) In this subsection, “law enforcement officer” has the meaning
14given in s. 165.85 (2) (c).
AB186,2,1815
(b) Notwithstanding any other provision in this section, the protection afforded
16by this section does not apply to any law enforcement officer proceeded against in an
17official capacity or as an individual because of acts committed while carrying out
18duties as an officer or employee or as an agent of any department of the state.
AB186,4
19Section 4
.
Initial applicability.
AB186,3,2
1(1) This act first applies to causes of action accruing on the effective date of this
2subsection.
