Senator Scott Wiener (D-San Francisco) announced Senate Bill (SB) 747, the deceptively named No Kings Act, to purportedly hold federal ICE officers accountable for violating people's Constitutional rights. Unfortunately, this legislation suffers the same fatal flaws as SB 627's restrictions on facial coverings in that the legislation will not be enforceable against federal officers but will significantly harm to our California peace officers.
SB 747;s proposed amendment to the Tom Bane Civil Rights Act (CA Civil Code § 52.1) will unleash a torrent of new civil liability on the shoulders of California's peace officers while stripping away critical safeguards like the specific intent requirement that has long distinguished the Bane Act from its federal counterpart in 42 U.S.C. section 1983.
SB 747 adds a new subdivision (d) to the Bane Act that mirrors federal section 1983, creating state-law liability for any person acting “under color” of law who deprives a person of their federal constitutional rights without the qualified immunity protections under Section 1983. Although proponents characterize the measure as a modest codification of existing case law describing the Bane Act as the “state equivalent” of section 1983, the proposed language is neither redundant nor innocuous. It represents a deliberate and substantial enlargement of liability California officers will face. Without the Bane Act’s current requirements of threats, intimidation, or coercion and without any specific intent element, this bill creates a much easier pathway to sue peace officers in state court, and applies existing Bane Act venues, orders, and fee-shifting applied to these new claims.
Existing Law: The Bane Act’s Distinct and Narrower Scope
Under current law, a plaintiff seeking damages under Civil Code section 52.1 must prove that the defendant interfered, or attempted to interfere, by threats, intimidation, or coercion with the exercise or enjoyment of rights secured by the federal or California Constitution or laws. In the context of peace officer liability, California courts have consistently held that this statutory language imposes an additional element beyond a mere constitutional violation, i.e. the defendant must act with specific intent to violate the plaintiff’s constitutional rights (or, in certain Fourth Amendment seizure cases, with reckless disregard for those rights). Austin B. v. Escondido Union School Dist., 149 Cal.App.4th 860 (2007).
SN 747 represents a significant expansion in liability from the current framework where courts emphasize that the Bane Act was "intended to address only egregious interferences with constitutional rights" requiring "deliberate or spiteful" conduct. Shoyoye v. County of Los Angeles, 203 Cal.App.4th 947 (2012). Moreover, while qualified immunity is unavailable under the Bane Act for peace officers acting under color of state law, the heightened intent standard has served as a functional substitute, shielding officers from liability for good-faith errors in rapidly evolving situations.
SB 747’s Proposed Subdivision (d): A New and Broader Cause of Action
Senate Bill 747 would add the following language to Civil Code section 52.1:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage of the United States or of this state, subjects or causes to be subjected any citizen of this state or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the United States Constitution, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
This text is lifted almost verbatim from 42 U.S.C. section 1983. The legislation contains none of the existing Bane Act’s limiting elements, such as the requirement of threats, intimidation, or coercion, nor the specific-intent requirement. The new subdivision would therefore create a parallel and independent cause of action within section 52.1 that plaintiffs could plead in the alternative, allowing them to bypass the safeguards that have defined Bane Act jurisprudence for decades.
Why This Matters to Public Safety Agencies and Officers
The legislative digest confirms the intent: the bill “would also provide” a state-law remedy “similar” to section 1983 for deprivations of federal constitutional rights under color of law. The measure further extends to subdivision (d) claims the same expansive venue provisions, injunctive remedies, and one-way attorney-fee shifting that already apply to traditional Bane Act actions.
SB 747 would remove that hurdle for subdivision (d), replacing it with a lower threshold akin to section 1983’s objective reasonableness standard and doing so without any qualified immunity defense in state court. This dramatically raises litigation risk for line officers and agencies. Thus, SB 747 would transform the Bane Act from a statute aimed at coercive and intentional misconduct into nearly a strict-liability regime for any constitutional deprivation committed under color of law.
Senate Bill 2 originally attempted to accomplish a similar result by eliminating the specific intent requirement. David E. Mastagni successfully testified against the elimination of the specific intent requirement in Senate Judiciary Committee. Chair Thomas Umberg and the Democratic party forced amendments to SB 2 that preserved the specific intent requirement, a compromise this bill seeks to reverse.
Sovereign Immunity: The Bill’s Targeted Federal Officers Are Largely Immune
Proponents suggest that the amendment is necessary to hold federal immigration enforcement officers accountable in state court. That justification collapses under even cursory scrutiny. Federal officers acting within the scope of their official duties are protected by federal sovereign immunity from monetary claims brought under state civil rights statutes.
While ICE officers may also receive qualified immunity for immigration enforcement activities, the more fundamental barrier to lability is sovereign immunity. Committee for Immigrant Rights of Sonoma County v. County of Sonoma, 644 F.Supp.2d 1177 (2009). Federal agencies and officers acting in official capacity cannot be sued under state civil rights statutes. State of Cal. v. U.S., 104 F.3d 1086 (1997) held that "California's claims against the United States premised on impact of federal immigration policy were barred by sovereign immunity to extent that monetary awards were sought." Because immigration enforcement remains a core federal function, sovereign immunity protects federal officers from state civil rights liability for conduct within their official duties. See also Arizona v. U.S., 567 U.S. 387, 401-402, (2012)(holding the United States has a “single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation's borders.”)
Thus, SB 747’s expansion is unlikely to affect ICE officers acting within the scope of federal immigration duties, meaning the bill’s practical impact will fall primarily on the state and local officers protecting our communities. As with the failed mask-mandate provisions of SB 627, SB 747 is a symbolic shot at federal ICE agents that will almost certainly only impact California’s state and local peace officers-making their jobs more difficult.
Conclusion
California’s peace officers have repeatedly demonstrated that meaningful accountability and officer protection are not mutually exclusive. SB 747 abandons that balance.
