Winfield, Looney Vow To Press Cop Accountability Bill; Challengers Say It’s Watered Down

New Haven’s two state senators both plan on throwing their support behind an ambitious proposed police accountability bill up for debate in Hartford on Tuesday.

At stake, they said, is a rare opportunity to impose financial and professional consequences on police officers who abuse citizens’ civil rights.

Those two state legislators are Martin Looney and Gary Winfield.

Looney, the president pro tempore of the Connecticut General Assembly’s upper chamber, represents New Haven’s 11th District. Winfield, the Senate chair of the legislature’s Judiciary Committee and a longtime criminal justice reform advocate, represents New Haven’s 10th District.

In separate interviews with the Independent Monday afternoon, both affirmed their intention to defend, support, and ultimately vote in favor of An Act Concerning Police Accountability, which was passed by the state House of Representatives in an 85 – 58 vote early last Friday morning.

The bill is slated to be taken up by the state Senate during a one-day special session scheduled to start at 10:30 a.m. Tuesday. It is one of four bills to be discussed that day, alongside bills related to insulin price caps, telehealth, and absentee ballot access for the November election.

This proposed police accountability bill is ​“not about whether you like police or not,” Winfield said on Monday. ​“It’s about whether you think they should have power and use it in a way that goes unchecked. That’s not how I think police should be able to operate.”

Looney agreed. ​“There’s a tremendous amount in this bill that I think is going to enhance police professionalism, accountability, and responsibility to communities.”

Meanwhile, Alex Taubes and Jason Bartlett, who are respectively seeking to challenge Democrats Looney and Winfield as independents in this November’s general election, criticized the incumbent politicians for not going far enough with this bill. (See more below.)

In the two months since the police killing of George Floyd in Minneapolis and subsequent nationwide Black Lives Matter uprisings against police brutality, Winfield has taken the lead in the state legislature in drafting and shepherding the now-71-page bill.

Looney, as the top elected official in the state Senate, has co-introduced the bill along with fellow state legislative Democrat leaders Joe Aresimowicz, Matthew Ritter, and Bob Duff.

The New Haven state senators singled out for praise a host of measures included in the bill that are designed to encourage diversity, transparency, and accountability among law enforcement.

Those include creating a new independent inspector general office charged with investigating deadly use of force by police officers; requiring behavioral health assessments for police officers every five years; authorizing all Connecticut municipalities to create civilian review boards (CRBs) with subpoena power; and ordering all police departments in the state to adopt bodyworn and dashboard cameras.

They also include limiting the use of chokeholds to only when an officer believes he or she faces an imminent threat of deadly physical force; holding liable onlooking officers who do not intervene when a colleague is using excessive force or committing some other violation; requiring an officer to have probable cause, and not just informed consent, before searching a stopped motor vehicle for evidence of a potential crime; and prohibiting departments from hiring police officers who have been decertified by the state Police Officer Standards and Training (POST) Council for violations committed while working in law enforcement elsewhere in the state.

Winfield and Looney said they also both support Section 41 of the proposed bill regarding ​“governmental immunity.”

That proved to be the most hotly contested section during a recent 12-hour public listening session on the bill, as well as during the eight-hour debate of the proposed legislation in the state House of Representatives. Click here , here and here for background on how the common law doctrines of governmental immunity at the state level and qualified immunity at the federal level often work to prevent civil suits field against officers accused of harm from going to trial.

“If Police Officers Aren’t Doing Their Job, There Are Consequences”

Both state senators said that Section 41, as included in the House-approved bill, would create a new civil cause of action in state court that would make it easier for people harmed by a police officer to sue that law enforcement official for financial damages.

The proposed law would prohibit an officer from invoking the legal defense of governmental immunity unless if they have an ​“objectively good faith belief that such officer’s conduct did not violate the law,” per the text of the bill.

Municipalities would be required to indemnify police officers sued for an act undertaken ​“in the discharge of the officer’s duties,” as they currently are by state statute. But a municipality can seek reimbursement from an officer for financial losses associated with the officer’s actions if a court finds those actions to be ​“malicious, wanton or willful.”

“There really is nothing in [this bill] that a responsible officer operating under good faith should fear,” Looney said. ​“Because in order to potentially be subject to a loss of [governmental] immunity, the conduct of the officer would have to be egregious, willful, wanton or malicious.”

Winfield put the matter more bluntly.

“If police officers aren’t doing their job, there are consequences,” he said. In this bill, those consequences would take the form of POST decertification and/or the loss of governmental immunity when sued in state court.

That latter issue doesn’t make it any easier for plaintiffs to prove in court that an officer was acting wantonly, willfully, or maliciously, Looney continued. But, he said, it does make it a bit easier for a person to have their case heard in court without a judge dismissing it pre-trial for lack of favorable judicial precedent.

“A judge under this new bill has broad discretion to create equitable remedies, which is a major difference of the underlying bill,” he said.

Winfield and New Haven State Rep. Robyn Porter made similar pitches for passage of the bill Sunday afternoon during a rally for Black lives in Newhallville.

“It’s not enough to go out and vote,” Winfield said. ​“You’ve got to show up.” He called on his constituents and for any other proponents of the bill from throughout the state to reach out to legislators and urge them to vote in favor on Tuesday.

“It doesn’t matter what party you’re in,” he said. ​“It matters what you do. … If you’re a Democrat, Republican, or independent, it doesn’t matter. What matters is: Do they speak Black Lives Matter into policy?”

Looney told the Independent Monday that he believes the bill has strong support from Democrats in the state Senate. Of the state Senate’s 36 members, 22 are Democrats and 14 are Republicans.

“Watered Down”?

In phone interviews with the Independent on Friday and Monday respectively, Taubes and Bartlett laid into Looney and Winfield for the version of the bill slated to be taken up by the Senate Tuesday. Both challengers are currently collecting petition signatures in their respective bids to make it onto the general election ballot in November.

Taubes and Bartlett’s critiques stemmed not from a concern that this law would discourage officers from doing their jobs and would present undue financial liabilities for municipalities, as was argued by police union officials and Republican state legislators last week. Rather, they slammed the bill — and its proponents — for being ​“watered down to the point of meaninglessness,” as Taubes put it.

Taubes said that the removal of the term ​“qualified immunity” from the original bill is in fact a substantive difference.

“The first one said that there are two types of immunity that don’t apply,” he said in reference to the original bill’s removal of governmental and qualified immunity defenses in court. ​“The second says that one does apply under certain circumstances, and is silent on the other.”

He accused the bill of not changing qualified immunity at all, and instead of inadvertently ​“creating a whole new government immunity for civil rights claims that didn’t exist before.”

Taubes said the original version of Section 41 ​“created a civil rights law with an even playing field.” If an officer violated someone’s civil rights, then they could not invoke a special qualified or governmental immunity. A plaintiff would still have to prove in court that their civil rights had been violated, but they would at least be able to get to court. ​“The officer doesn’t get an additional crutch of immunity to hang their hat on,” he said.

Now, he said, the bill is ​“silent on qualified immunity” and inserts new language about a ​“good faith” defense officers can point to when invoking governmental immunity. ​“It’s almost like they’ve created a double qualified immunity,” he said.

On top of that, he said, the new version of the bill reduces the statute of limitations for filing civil actions in state court against police officers from three years to one year since the cause of action. And it reduces the likelihood that an attorney could recoup legal fees for bringing such a case, he said.

“There’s such a strong impulse to say it’s a positive step forward,” he said. ​“But really it’s not.” He said that the original version of Section 41 should be put back in the bill.

Bartlett was equally critical. ​“You still have qualified immunity on the federal level,” he said. ​“Now you’re pretending that you’ve addressed it in the State of Connecticut. Quite frankly, you haven’t.”

Bartlett said he is also concerned with how this bill does not outright ban chokeholds in all instances. ​“I’m outraged that no legislator put forward an amendment to completely take out chokeholds,” he said. Bartlett said Connecticut should instead follow the New York Assembly’s lead and criminalize use of chokeholds by police officers altogether.

If he were in the Senate on Tuesday, Bartlett said, he would not vote in favor of the bill. He said he would vote against and push to vote on another more comprehensive bill in another session.

“The Democratic Party is acting like this is the holy grail of bills,” he said. ​“It is weak, and it’s more of the status quo.”

“If You Amend It, It Dies”

When asked about why the bill passed by the House only mentions ​“governmental immunity” and no longer explicitly mentions ​“qualified immunity,” Looney said that there’s ​“not a substantive difference” between the terms governmental and qualified immunity.

“The terms are really interchangeable,” he said.

Winfield said that the removal of the reference to ​“qualified immunity” had more to do with targeting the bill’s reforms at state-level legal defenses rather than at federal-level legal defenses.

He said that holding up the bill over an academic debate about the differences between qualified and governmental immunity would result in a missed opportunity, considering that the state House has already adjourned for the session.

That means that the Senate has to either approve the bill as passed out of the House, or forego passing any legislation at all this session.

“Given where we are, I think we should make sure that we pass this bill,” he said, ​“because you’re not going to get five, six, seven cracks at this.”

“If you amend it, it dies,” he continued. ​“My job Tuesday is to actually pass it.”