Conflict of Laws; Fourth Amendment; Fourteenth Amendment; Law Enforcement and Corrections


When a person’s constitutional rights are violated by a public official, such as a police officer, who acts under color of law, the official can invoke a qualified immunity defense that immunizes the official unless it is clearly established that such action is unlawful. Over the years, the qualified immunity doctrine has developed into a shield that makes it difficult for aggrieved individuals to recover when they are harmed. As a result of nationwide focus on police brutality, four states—Colorado, Connecticut, Massachusetts, and New Mexico—have modified the use of qualified immunity as a defense in state courts for individuals harmed by police officers acting under their official authority. In 2021, New York City became the first city to join these four states by enacting Local Law 48 of 2021 to hold police officers accountable for use of excessive force and unreasonable searches and seizures. Under the principle of home rule, however, the legislative power of local governments is limited to what the state legislature has delegated to them. Furthermore, states may preempt local governments from exercising power in a manner inconsistent with state law.

This Note provides an overview of the development of qualified immunity, the scope of home rule power, and the constraints imposed by state preemption on a local government’s ability to provide solutions to local problems. As the Constitution of the State of New York provides cities with broad powers to create and amend laws regarding their local affairs and the safety and well-being of their residents, this Note argues that Local Law 48 is a valid exercise of New York City’s home rule powers. Furthermore, Local Law 48 will likely not be preempted through express, field, or conflict preemption because of the state legislature’s failure to expressly or impliedly state their intention to occupy the field or limit local governments from enacting further legislation on the issue. Lastly, although Local Law 48 establishes a limited right, it can be effective in practice to hold officers accountable and serve as a test case for future legislation.