Campaign to end qualified immunity in Ohio gets final OK to begin gathering signatures

COLUMBUS, Ohio – The state Ballot Board approved an effort Wednesday to end “qualified immunity” in Ohio, clearing the road for organizers to begin gathering the 413,000 signatures required to place their proposal on a statewide ballot.

For more than a year, Republican Ohio Attorney General Dave Yost unilaterally blocked the organizers, claiming that the summary of their proposed amendment and its title were misleading, prompting intervention from the Ohio Supreme Court and a federal appellate court ruling against Yost.

But with the Ballot Board’s unanimous vote Wednesday agreeing that the proposal spans only a single subject, as the state constitution requires, organizers can begin the heavy lift of gathering signatures, which must come from 44 of 88 counties. Should they succeed, voters could enshrine the new rules in the state constitution via a simple majority vote.

If enacted, the new amendment would lower the legal bar for people to successfully sue government employees for constitutional violations – often, but not exclusively, police officers, prison workers and other law enforcement officials.

Qualified immunity is a legal doctrine that provides legal protection to government employees by only allowing lawsuits against them if a plaintiff can prove they violated a “clearly established” right, according to the Legal Information Institute at Cornell University. Ohio also has a state law that provides state and local governments a broad immunity for acts or omissions that led to injury or death, unless plaintiffs can prove the acts or omissions were “with malicious purpose, in bad faith, or in a wanton or reckless manner.”

The law reflects thinking that public workers like police officers must make fast decisions amid personal danger and deserve some amount of latitude.

Under the proposed amendment, a government actor could be found liable in a lawsuit for violations of constitutional rights if it’s proven by a preponderance of the evidence that a right was violated. It’s an easier standard to meet and would likely result in more successful lawsuits alleging things like the excessive use of force by officers.

Mark Brown, a constitutional law professor at Capital University who represented the organizers in their various lawsuits to defeat the early stage political opposition, told the Ballot Board that the proposal is simple in its aims. While the law enables criminal accountability for government wrongdoing, he said it is astonishingly rare for government employees to be held accountable for their violations of constitutional rights. He estimated that one tenth of 1% of lawsuits alleging constitutional violations by government officials succeed.

While the suits often revolve around law enforcement, he said it can include teachers who escape liability for the sexual abuse of students, or other government officials never held accountable for First Amendment violations regarding free speech or religious expression.

“The overall objective behind this initiative is compensation, deterrence, and protection,” he said.

While the hearing was ostensibly limited to whether the proposal spans a single or multiple subjects, it quickly delved into a debate on the merits ending qualified immunity.

Ohio Secretary of State Frank LaRose, a Republican, suggested the amendment would trigger a flood of frivolous lawsuits and act as a “reverse tort reform” forcing cities to pay out huge judgements they can’t afford. Ohio Sen. Theresa Gavarone, a Bowling Green Republican who sits on the board, at one point suggested the amendment spans as many as nine different subjects, but ultimately voted that it indeed complies with the single subject rule.

Several members of the public testified in support of the proposal. One woman said her son was murdered by an officer in 2017, and the amendment would pave a legal road to hold that officer to financial account for his crime. Another man, who said he was one of the plaintiffs suing Ohio State University after its physician sexually abused hundreds of students and student athletes in the 1980s and 1990s, said he wants the amendment to trump current laws that might shield now-Congressman Jim Jordan, formerly an assistant wrestling coach, who they have said failed to act on knowledge of the physician’s abuse. Jordan has denied he knew about the abuse.

Jake Zuckerman covers state politics and policy for Cleveland.com and The Plain Dealer.