On the same day that Governor Kay Ivey signed a new law expanding and enlarging the immunity blanket that protects law enforcement officers the United States Supreme Court handed down a 9-0 ruling that may put Alabama’s new law in jeopardy or conflict with federal law.

The 2025 Alabama Legislature adjourned last week after passing more than 300 new laws intended for the benefit of our citizenry and to improve the workings of our State government. Among the new laws emerged “Back the Blue” (Act 2025-423) and signed into law by Governor Ivey on May 15, 2025.

The Alabama Legislature gave final approval to the legislation that rewrites precedential legal standards for the use of force and provides for a pre-trial immunity hearing for law enforcement officers. The bill states that an officer “shall be justified” in the use of physical force as long as it is not constitutionally excessive force or “recklessly” outside of the officer’s discretionary authority. In other words, an officer can be prosecuted for certain reckless or illegal conduct but the bar will present a steep hill to climb for a victim (or his estate).

This is how the new bill defines “Officer’s Discretionary Authority”:

“Governmental conduct by a law enforcement officer performing a legitimate job-related function or pursuing 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.”

That loophole is big enough to drive a bus through.  What the heck is “plausible power” and “outer perimeter” of authorized conduct ?

Here is how a court must evaluate the act of a law enforcement officer under the new law:

“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.”

Wait. Did we just read that a court can imply or impute a proper purpose for an officer’s conduct by putting aside actual conduct that could have been committed for an improper or illegal purpose ?

Stop here, gather your thoughts about the preceeding paragraphs. See any potential problems there ? It appears that our legislature did not.

You can think for yourself thru the possible scenarios where this definition could be a problem, maybe for you or a member of your family. By the way, the expanded immunity protections under this law extend to “any peace officer, guard, or detention or jail officer employed in a facility used for confinement…”, and extends further to process servers, tactical medics, and public safety dispatchers.

According to the Associated Press, Republicans, who called the legislation the “Back The Blue” bill said it is needed to provide a clear legal framework and show support for law enforcement officers faced with making split-second decisions.

Again please note here that the wording of the new bill contains terms that the bill failed to define the precise meaning of.

“We ask them to take care of us, keep us safe in our homes as we sleep at night. This bill will give them the assurances that we back them and back the blue,” Sen. Lance Bell, a former deputy sheriff, said. Bell said officers who act improperly can still be prosecuted.

The floor debate and opposition to the bill was intense. The bill passed on a 73-28 House vote and a Senate Vote of 25-6.

“HB 202 is a license to kill Black people. That’s what it is,” Sen. Rodger Smitherman, a Democrat from Birmingham, said.

Smitherman said departments have very good officers, but they also have officers who are “racist against Black people” or will make impulsive decisions because they are scared.

Sen. Merika Coleman, a Democrat from Pleasant Grove, said she fears the bill will protect “bad apples” in police departments. She described her worries that someone might see her honors student son as a threat someday because of his tall frame and twisted locs.

Leroy Maxwell, a civil rights attorney based in Birmingham, said he is afraid the bill would embolden misconduct.

“Legislation like this paves the way toward a police state, where law enforcement operates above the law and without fear of consequence,” Maxwell said.

The Supreme Court Decision

On the same day Governor Ivey signed the new Alabama law the USSC handed down a unanimous opinion in Barnes vs. Felix (Docket 23-1239), overturning long-held standards of review for the acts of police officers. The holding discards the “moment-of-threat” rule, a framework for evaluating police shootings which requires a court to look only to the circumstances existing at the precise time an officer perceived the threat, and improperly narrows the Fourth Amendment analysis of police use of force.

In the Barnes case before the Supreme Court the respondent Felix, a law enforcement officer, pulled over a suspect for a toll violation. The event happened in Texas in 2016. He ordered Barnes to exit the vehicle, but Barnes began to drive away, whereupon the officer jumped onto the sill of the open driver’s door and fired two shots inside the car within seconds, eventually killing Barnes. The trial court granted summary judgment in favor of the officer, applying the “moment of threat” rule to evaluate his conduct. Under the “moment of threat” rule events leading up to the shooting are not relevant, therefore the officer could have believed his life was in danger in the seconds before his gun was fired, and the shooting was ruled lawful. Upheld by the 5^th Circuit Court of Appeals.

On a sidenote, turned out that the toll violations were connected to the rented vehicle but probably not to the now deceased Barnes who did not own the vehicle.

In the opinion, written by Justice Kagan, she said “by limiting their view to the two seconds before the shooting the lower courts could not take into account anything preceding that final moment.”

In vacating lower courts and remanding, Kagan also wrote “A rule like that, which precludes consideration of prior events in assessing a police shooting, is not reconcilable with the fact-dependent and context-sensitive approach this Court has prescribed. “

In their Amicus Brief, The Constitutional Accountability Center wrote: “the moment-of-threat doctrine is at odds with the Fourteenth Amendment’s guarantee of protection from unfettered police discretion and police violence. Adopted in response to an epidemic of police abuse in the post–Civil War South, the Fourteenth Amendment extended the Fourth Amendment’s protections against unreasonable searches and seizures to the actions of state and local officers. During the debates on the Fourteenth Amendment, members of Congress denounced boundless arrest powers and described how police officers abused those powers to justify baseless and often violent seizures of Black Americans. Congress and the public were also spurred to action by notorious episodes in which the police led horrific massacres of Black Americans in two cities. Contrary to the Fourteenth Amendment’s focus on curbing police abuse, however, the moment-of-threat doctrine puts police officers in an elevated position relative to ordinary civilians, by shielding officers from accountability when they unreasonably use deadly force in response to crises of their own creation.”

“Unlike at the Founding, professional police forces today wield vast authority to stop and arrest people on little suspicion for even the most minor potential offenses. Given this dramatic expansion in police officers’ discretionary powers, it is all the more important for courts to ensure that their actions satisfy the Fourth Amendment’s reasonableness standard. The moment-of-threat doctrine frustrates that imperative, artificially stifling the Fourth Amendment inquiry by preventing courts from considering the full range of circumstances surrounding an officer’s decision to use deadly force on a private citizen.”

The New Alabama Law

Police immunity is not new to our state; there were existing applicable laws offering protections for lawful conduct. Alabama’s new law rewrites the Alabama law enforcement standard for reviewing the conduct of a law enforcement officer and grants immunity where an officer is acting within the new Alabama standard defined in the law. The holdings in the Supreme Court analysis of Barnes v. Felix may not be congruent with the well-intentioned Alabama legislative intent.

Civil rights attorney Harry Daniels opposed the law but doubted the overall impact on civil rights cases which could still be filed in federal court and will not be affected by the legislation.

There are other looming liability problems in this law for any person or organization that employs an off-duty police officer for event security work. That discussion is for another day.

It remains to be seen how the future courts will reconcile the recent SCOTUS opinion and Governor Ivey’s bold & expanded police immunity protections, even if the new law was well-intentioned by all of it’s supporters.

Policing is a challenging and dangerous job in today’s world and diligent law enforcement officers should be supported by all of us. Seeking to protect hard working law enforcement personnel is an honorable undertaking.

However; a balance of harms and protections for all citizens is required of our legislature. We should not create new laws that strip away or weaken fundamental constitutional protections and the opportunity to seek fair redress through our judicial system for citizens who are unfairly harmed by bad actors. An impenetrable shield of immunity for one side of the equation tips the scales of justice and can swing the balance of fairness and the scales of justice in the wrong direction.