“Qualified Immunity” Anchors Cop Debate

The fate of seven arcane syllables has become a hotly contested ideological battleground as state lawmakers convene this week to consider a response to police accountability demands spurred by the death of George Floyd and subsequent nationwide protests.

The seven syllables: ​“qualified immunity.”

At stake in those seven syllables, according to advocates of change, is a potentially powerful incentive for police departments across Connecticut to ensure that officers do not abuse the communities they serve. To opponents, the ability of cops to do their jobs well is at stake.

A preview of that debate played out Friday morning, afternoon and evening during a marathon public listening session held by the state legislature’s Judiciary Committee about a draft version of An Act Concerning Police Accountability. The bill features a removal of the common-law immunity cops can invoke when prosecuted harming a civilian. New Haveners played vocal roles on both sides of the issue at the hearing.

The state General Assembly is slated to convene a special legislative session starting July 21 to deal with the proposed police reform bill, as well as with proposed legislation regarding absentee ballots, insulin costs, and telehealth.

Winfield Takes Lead

New Haven State Sen. Gary Winfield (pictured), who took the lead in authoring the police accountability bill, serves as Senate chair of the state legislature’s Judiciary Committee. He helped oversee 12 hours of public testimony and legislator questioning regarding the 65-page draft legislation. The hearing had 150 people sign up to testify over Zoom.

Time and again Friday, he found himself parrying criticisms from police union leaders, municipal elected officials, and conservative fellow state legislators about one specific section of the proposed bill.

That was Section 41, at the very end of the bill. The section would prohibit police officers from using qualified immunity as a defense when accused in a civil lawsuit of violating someone’s constitutional rights — through, for example, the use of excessive force or false arrest.

Broadly speaking, qualified immunity allows officers to claim that they acted in an objectively reasonable manner in the moment of an alleged civil rights violation. (See more below.)

The proposed bill states that, if a court finds the officer’s violation was ​“deliberate, wilful or committed with reckless indifference, the court may award punitive damages.” The plaintiff may also be awarded costs and reasonable attorney’s fees as part of a favorable judgment. Under the proposed bill, a civil action must be filed within three years after the cause of action took place.

Click here to read the proposed bill in full. See below for the full text of Section 41.

Critics of the proposed law’s qualified immunity provision — such as Vernon Republican State Sen. and former police officer Dan Champagne — repeatedly said Friday that it would result in a surge in costs related to police insurance policies and civil lawsuit damages that would ultimately be borne by the taxpayer.

“The cost is going to be immense,” Champagne said.

Winfield replied that the financial cost of deterring and punishing police misconduct is not the only cost associated with law enforcement accountability. There’s also the cost of doing nothing.

“We should look at the potential cost in human lives” associated with allowing officers to dodge civil suits that result from harmful and potentially illegal actions, he said. He urged his colleagues also to think about ​“the cost of communities not being able to view police in a way that I believe they should be able to view them.”

Later on in the hearing, Winfield took a step back from the detailed debates over specific provisions of the bill, such as the qualified immunity section, to talk about the impetus behind this police accountability legislation as a whole. This proposed act gets at ​“how power is given and how power is used,” he said. ​“And in certain communities, power is used in such a way by police that it causes escalations of situations. It causes misunderstandings.”

Mike Lawlor (pictured above at left) — a former co-chair of the state legislature’s Judiciary Committee, a former state undersecretary for criminal justice policy and planning, and an associate professor who teaches about criminal justice at the University of New Haven — said that this at-times opaque legalistic dispute over qualified immunity has potentially profound ramifications.

“The whole point of this is to provide an even stronger incentive to local governments to make sure they’re very careful in hiring, in training, and in supervising their officers,” he said in an interview with the Independent.

“The incentive is: If [officers] do something and they violate constitutional rights, it’s going to cost [the state or municipality] a lot of money. There’s a much stronger incentive for training, recruitment and oversight.”

Lawlor explained that the fight over qualified immunity that played out during Friday’s hearing among state legislators and members of the public is best understood in a bit of context.

What is this abstruse legal technicality? How does it work? Where did it come from? And why might it hold the key for truly effective police reform during this current nationwide reevaluation of policing?

An ​“Obstacle” To Justice

Lawlor said that the current legal defense of qualified immunity comes not from state or federal legislation, but rather from decades of judicial interpretations and precedents set by the U.S. Supreme Court.

“There was never any law passed in Congress that says that police have qualified immunity,” he said.

Understanding the concept in its full context brings one back to the federal Civil Rights Act of 1871. That law’s Section 1983 allows for people to sue a government employee — including a police officer — for violating their constitutional rights.

Over time, Lawlor said, the U.S. Supreme Court developed the concept of qualified immunity as a means for allowing, under certain circumstances, judges to dismiss civil rights cases filed against the government.

He said the common law understanding of qualified immunity currently allows a judge to prevent a case from advancing to a jury trial unless there is near-identical judicial precedent in which, under almost exactly the same set of facts and circumstances, a court ruled against a police officer and found that they acted in an objectively unreasonable manner at the moment of the violation.

Proving that officers acted unreasonably in the heat of the moment is difficult enough, Lawlor said.

But all too often, plaintiffs don’t even get the chance to make their case before a jury, because the qualified immunity defense as asserted by police officers results in judges dismissing a case for lack of appropriate, favorable precedent.

Lawlor said that the provision included in Winfield’s proposed law would make it easier for Connecticut residents who have suffered constitutional violations at the hands of the police to argue their case before a jury trial.

Winfield repeatedly stated Friday in response to concerns lobbed at him that the proposed law would remove qualified immunity for all police officers in all incidents. But the text of the law is simply not that universal.

It maintains the conditions of ​“deliberate,” ​“wilful,” and ​“reckless indifference” when informing which police officer actions should be subject to punitive damages, and which should not.

“Qualified immunity prevents it from getting to a trial,” Lawlor said. It’s an ​“obstacle” that, if removed, would allow plaintiffs a better chance to actually have their cases heard and deliberated on by a jury.

Lawlor said he would like to see the proposed law change go even further in regards to qualified immunity.

Not only should plaintiffs be able to have their civil rights violation cases heard by a jury when they believe an officer has broken the law, he argued; they should also be able to sue if an officer’s harmful actions represent a violation of department policy.

New Haven’s police department, for example, has a policy that prohibits high-speed chases. Lawlor said that the reform bill should allow for an officer to be held accountable in court if they deliberately or recklessly violate such a policy, and if that violation results in serious harm or death to someone involved in the chase or to a random bystander.

“If you’re ignoring the training you’ve received, that should be a factor” in such a court case, he said.

Lawlor stressed that the qualified immunity provision in Winfield’s proposed bill would nevertheless be an effective tool in making police departments more cautious when hiring, training, and supervising officers.

If the department and the municipality are liable to suffer significant financial damages following a successful civil suit, he said, then one can reasonably assume that department would take extra care to make sure that no officer acts in such a way that would incur such a steep financial price.

“That’s how it works in the rest of the economy,” Lawlor said.

“What This Bill Does”

During Friday’s public listening session, critics of the proposed law’s qualified immunity provision argued that it would result in both high costs for taxpayers and a slowdown in work by police officers afraid of acting in such a way that would leave them open to being sued.

Former Connecticut State Police Union President Andrew Matthews (pictured) said that ​“officers have felt abandoned, betrayed and forgotten about” by people whom officers believed to be loyal defenders of the police.

“The actions of Derek Chauvin were shocking, unacceptable, and illegal,” he said about the Minneapolis police officer who killed George Floyd by kneeling on his neck for nearly nine minutes in response to a call about Floyd’s alleged use of a counterfeit $20 bill.

Matthews argued that Chauvin’s actions should not result in Connecticut police officers losing the protections of qualified immunity.

“Police officers would fail to act when necessary for fear of being sued. No police officer will risk their physical or financial stability for an employer who will not stand by them,” he said. ​“We think that qualified immunity is critical to the support of law enforcement here in Connecticut.”

Winfield suggested that Matthews might not fully understand how exactly this bill would affect qualified immunity. He said that an officer’s actions must still be found by a court to be ​“deliberate,” ​“wilful,” or resulting from ​“reckless indifference” before a court can award punitive damages to a plaintiff. Officers who do not act in such a fashion do not have to worry about a deluge of lawsuits, he said.

“I don’t pretend to be a constitutional law attorney,” Matthews replied. ​“I’m a labor attorney.” He repeated that qualified immunity must be preserved in order for officers to be able to do their jobs.

“This is not just a question of what qualified immunity is,” Winfield said. ​“It’s a question of what this bill does.”

Waterbury Mayor Neil O’Leary (pictured) offered similar concerns about the proposed bill’s effect on qualified immunity.

The elected official outlined for the legislators his history as a police officer and police chief before becoming the Brass City’s mayor.

“I absolutely as a police officer, a police chief, an elected official, believe strongly that the majority of this bill gives all of us the ability to hold rogue police officers accountable for their outrageous conduct,” he said. ​“But I have to tell you, as a mayor and a former police chief, I’m very concerned about the immunity issue.” He said he would like that section of the law to be passed along to a working group specifically dedicated to fleshing out its meaning and potential consequences.

“Are you suggesting that Section 41 of the bill is unclear?” Winfield asked.

“I’m not an attorney,” O’Leary replied. But, he said, he did share the bill with as many attorneys as he could, and he did not get a straight answer on how this might affect qualified immunity more broadly for police officers.

“I believe the language is clear,” Winfield said. The conditions of ​“deliberate,” ​“wilful,” and ​“reckless indifference” are spelled out. Again, he said, officers who do not act in such a manner have nothing to worry about.

Cotto Invokes ​“Silent Majority”

New Haven police union President Florencio Cotto (pictured) slammed the qualified immunity reform — as well as many other parts of the proposed legislation, including the enabling of the creation of civilian review boards statewide — as driving officers from the force and exposing communities to violence.

“This bill does not deter bad officers,” he said. ​“Instead, it hurts recruitment and the retainment of good officers.”

He said time and again that the proposed bill would ​“tie the hands of New Haven police officers.” And he said that the recent uptick in crime in cities like New Haven will be the new normal.

“The silent majority of people in Connecticut want police presence in their communities,” he said.

Lawlor later told the Independent that the proposed law if passed would not make individual officers any more financially liable than they already currently are if sued in state court for a civil violation.

If the court ruled against the officer and awarded damages to a plaintiff, he said, the officer’s employer — that is, the municipality or the state — would be on the hook to cover the damages. That’s because municipalities and the state are required by state statute to indemnify officers when they are acting in the discharge of their duties.

He said the rare instances in which an individual officer would not be covered by their government employer’s indemnification would be if the court found the officer to have acted wantonly, maliciously or with wilful negligence. (See the final section of this legislative report for details on municipal and state indemnification requirements for civil suits.)

He also said that legislators should not be swayed by the threat from police officials that officers will simply stop working if they do not have access to unconditional qualified immunity.

If an officer deliberately stops doing his or her job because of a change to qualified immunity, he said, then the municipality should simply fire that officer and replace them with someone who will do the work with the understanding that they can be sued if they violate someone’s rights.

“Don’t Focus On George Floyd”

Winfield wasn’t the only local police accountability advocate pushing for qualified immunity reform on Friday. He received some public testimony support from Black Lives Matter New Haven leader Ala Ochumare, longtime local police accountability activist Barbara Fair, local civil rights attorney Alex Taubes, and People Against Police Brutality leader Kerry Ellington, among others.

“The community is demanding that qualified immunity is ended,” Ochumare (pictured) said. ​“Not to harass or abuse or make police officers unable to do their job. Rather, it will create a way for police officers to do a job that they thought they signed up for.”

Fair (pictured) agreed. ​“Qualified immunity [reform] definitely must be in this bill,” she said. ​“If an officer is doing his job correctly, then they will not have to worry about any liability.”

She said that the the police accountability legislation should strive to make ​“real transformative changes in the way that we are policed in this country.”

This bill is not about Derek Chauvin or George Floyd, she said, or about any one individual ​“bad apple” officer.

“This is about 401 years of terrorism of African people sanctioned in this country. Don’t focus on George Floyd.”

Taubes (pictured) also argued that reforming or repealing qualified immunity is not about abolishing the police. It’s instead about ​“abolishing police brutality. By getting rid of qualified immunity, you will ultimately save police departments, municipalities, and the state additional money in the long term because you will be removing protections for the bad apples while still allowing you to vindicate the rights of officers who do the right thing.”

He said that lawsuits brought by members of the public against officers for alleged violations of their constitutional rights should not be dismissed as ​“frivolous.”

“These are real harms that have occurred. These are real abuses that have occurred.” Not by the majority of officers, he said, but by a few who all too often evade punishment because of qualified immunity.

“This law will strengthen the police department of Connecticut,” he said. It will strengthen their integrity, their relationships to the public they serve, their independence, and their ability to fight crime.

Kerry Ellington (pictured) spent the majority of her nearly three minutes of public testimony reading the names of Connecticut residents killed by police over the past four years.

Jose Soto. Mubarak Soulemane. Jarelle Gibbs. Zoe Dowdell. Jayson Negron.

She made it through roughly half of the 30 name on the list before her time ran up. This is not just about George Floyd, she insisted. Police accountability is a Connecticut issue, too.

“This bill needs to be strengthened,” she said. ​“We are in crisis. In Black and Latinx communities across Connecticut, police play judge, jury and executioner.”

New Haven State Rep. Robyn Porter asked Ellington for her thoughts on the bill and how to improve it.

She said the proposed bill must eliminate qualified immunity, mandate fully elected civilian review boards, and limit the use of force only to ​“absolutely necessary” situations that are defined through a racial justice lens.

“Our country is burning,” she said. ​“There’s a political cost to doing nothing. We see that across our country.”

Section 41 of An Act Concerning Police Accountability

Below is the full text of the qualified immunity provision in the draft version of the proposed police reform bill.

Sec. 41. (NEW) (Effective October 1, 2020, and applicable to any cause of action arising from an incident committed on or after October 1, 2020) (a) As used in this section:

(1) ​“Law enforcement unit” has the same meaning as provided in section 7 – 294a of the general statutes; and

(2) ​“Police officer” has the same meaning as provided in section 7 – 294a of the general statutes.

(b) No police officer, acting alone or in conspiracy with another, or any other individual acting under color of state law, shall deprive any person or class of persons of the equal protection of the laws of this state, or of the equal privileges and immunities under the laws of this state, including, without limitation, the protections, privileges and immunities guaranteed under article first of the Constitution of the state.

(c) Any person aggrieved by a violation of subsection (b) of this section may bring a civil action, triable by jury, in the Superior Court for damages against a police officer who committed the violation and against the law enforcement unit employing such police officer at the time of the violation. In any civil action brought under this section in which the plaintiff prevails, the plaintiff may be awarded costs and reasonable attorney’s fees. In any civil action brought under this section, if the court finds that a violation of subsection (b) of this section was deliberate, wilful or committed with reckless indifference, the court may award punitive damages.

(d) Neither governmental immunity nor qualified immunity shall be a defense to a violation of subsection (b) of this section. Nor shall it be a defense to a violation of subsection (b) of this section, that a violation committed by a police officer was not made in furtherance of a policy or practice of the law enforcement unit.

(e) A civil action brought pursuant to this section shall be commenced not later than three years after the date on which the cause of action accrues.