Connecticut lawmakers undoubtedly thought they did something significant the other day, when, after pulling an all-nighter, they rushed through an “emergency” piece of legislation on police accountability. When it comes to making it possible to sue police officers who engage in misconduct, the law is stillborn. It changes nothing. It does not even address the issue most lawmakers probably thought they were tackling, to wit: qualified immunity.
Such are the perils of acting in haste, and placing a premium on feeling good, rather than doing something productive.
The bill does not eliminate a police officer’s immunity for suit for official misconduct in any meaningful way. The legislation does not attempt to address the doctrine of qualified immunity, which has been much in the news this summer, because no state legislature can address the issue: it is a matter of federal law, and beyond the reach of state lawmakers.
What is an immunity?
Consider life as a boardgame. The rules of the game – in life, the rule of law – determine what moves the pieces can make on life’s grand board. An immunity effectively takes the piece off the board: the general rules of the game don’t apply.
There are two types of immunity: absolute and qualified. An absolute immunity means you can never touch piece enjoying the immunity. Thus, no lawmakers can be sued for defamation over what is said on the house floor; no witness can be sued for defamation over what they say on the witness stand.
Qualified immunity is something a judge can grant depending on the circumstances. In federal law, police officers enjoy qualified immunity for their acts and omissions. Unless their conduct violates “clearly established law,” they are immune. It’s a judge-made doctrine with no foundation in the text or structure of the United States Constitution.
Section 41 of Connecticut’s new law, which does not take effect until July 2021, “creates” a right to sue for a violation of state constitutional rights. I put “creates” in quotation marks because there already was such a right to sue. This new legislation added little, if anything to existing law, merely clearing up the sometimes murky question about whether a private right of action existed, in other words, whether a suit can be brought by a private party.
But never mind, let’s play along: Any such action must be brought within one year of the alleged violation. The bill cloaks an officer in immunity if the officer “had an objectively good faith belief that such officer’s conduct did not violate the law.” If the officer lacked such a belief, he can be sued for money damages, but his employer must pay for his damages, and his attorney, unless the officer’s conduct was “malicious, wanton or willful” – legal speak for saying pretty darn bad.
Newsflash: Did no one tell legislators that this is already what the law provides?
Police officers sued in state and federal court are routinely covered by insurance policies. Typically, the policies provide coverage subject to what is called a “reservation of right.” The insurer waits until a jury verdict to decide whether to stand by the officer: If a jury finds the officer to have engaged in “malicious, willful and wanton” misconduct, the insurer walks away from the officer, leaving the officer to bear the costs and judgment.
In particularly egregious cases, an officer might be terminated and denied coverage at the outset. Those cases are rare.
This new law changes virtually nothing in what has been the routine manner of handling police misconduct claims. The law remains what it was: Police offices are indemnified for the costs of defense and most judgments by their employers. I don’t know why the police unions cried to the heaves for relief from the provision.
What about the immunity?
In many cases, a judge will decide whether the officer’s “objective good faith” before a jury ever sees the case. That’s the point of calling it“objective.” What an officer was actually – subjectively -- thinking is only a small part of the equation: The variable with the most weight is the judicial determination of what a reasonable police officer would do.
This provision of the bill guts the law of any real power.
I made a living as a young lawyer suing police officers in federal court. The federal judiciary was swamped with cases of police misconduct, and it wasn’t happy about it. So judges created the legal doctrine known as qualified immunity. This doctrine gives judges, not juries, the right to decide whether a police officer should enjoy immunity. In recent years, thousands of decisions have been rendered on qualified immunity, each decision a written decision.
Where do you think state court judges will go to determine what constitutes “objective good faith”? Yep, the federal decisions on qualified immunity.
And why didn’t Connecticut’s leglislature try to address qualified immunity? Because it can’t. This federal judicial doctrine is part of the armature of federal law. Under the federal Constitution’s “supremacy clause,” it is the supreme law of the land. A lawyer walking trying to use the state statute to prevent a judge from applying qualified immunity to an unreasonable force claim brought under federal law would be laughed out of court. You want to eliminate qualified immunity? Go to Congress.
If you read a newspaper headline saying this legislation addressed qualified immunity, call the editor of the newspaper and demand a correction.
The courageous thing to do would have been to require all police excessive force cases to be heard by a jury. An officer has a right to use force, even lethal force, in the name of the community. Let the community decide what is and is not reasonable. Isn’t that the implicit message of the so-called “defund the police” movement?
I’ve read and re-read the bill and see nothing new, nothing that changes the manner in which police misconduct cases will be litigated in Connecticut. It’s sound and fury signifying nothing.
Section 41 of the bill wasn’t worth the all-nighter.