On Thursday Governor Ned Lamont signed into law “An Act Concerning Police Accountability,” after two late nights of debate in the House and the Senate.
The legislation includes more than 40 substantive changes to policing in Connecticut, from new requirements regarding the use of lethal force to provisions for allowing civilian review boards on the municipal level, but the public debate and politics surrounding the bill has nevertheless focused overwhelmingly on Section 41 of the bill, which addresses the issue of qualified immunity for police officers.
Proponents of the bill, including State Rep. Steven Stafstrom, D-Bridgeport, and State Sen. Gary Winfield, D-New Haven, explain the provision as a tweak that will remove protections in court for only the worst offenders, police officers who have acted in a willful, wanton or malicious manner.
“It would be slightly easier for civil lawsuits to proceed against an officer,” said Stafstrom on the floor of the House on Thursday, July 23.
The new bill would task a judge with determining whether an officer was entitled to qualified immunity based on a standard that the “officer had an objectively good faith belief that such officer’s conduct did not violate the law.”
Staftstrom explained that only “if both prongs — the violation of someone’s constitutional rights and the good-faith belief that they were not complying with the law — are met then those suits can be brought and there is no immunity.”
According to Stephanie Roberge, president of the Connecticut Trial Lawyers Association, the bill does not affect qualified immunity as federal doctrine, but writes governmental immunity into state law with the exceptions for actions performed by police that were malicious, wanton or willful.
“It creates a cause of action under our state constitution which we did not have,” Roberge said. “Individuals whose civil rights have been violated now have a means for a civil suit because this bill specifically provides that governmental immunity will not apply in these cases.”
According to Roberge, courts will have legal guidelines rather than having to rely on 50 years of precedent.
Other lawyers agreed that the bill would not have the wide sweep of negative impacts predicted by many in law enforcement, but would still pose a burden to towns and taxpayers.
The law includes a provision that if a lawsuit is brought against an officer and the officer has not acted in a malicious, wanton or willful manner then “each municipality or law enforcement unit shall protect and save harmless any such police officer from financial loss and expense, including legal fees and costs.”
“This is going to drive many more of the cases brought to settlement and post settlement judgement,” said Bob Mitchell, an attorney for Mitchell & Sheahan who frequently represents police officers and their departments in false-arrest and excessive-force cases. “It will cost the towns more money and greatly impact taxpayers who end up paying for the settlements and litigation.”
With as many as 97 percent of civil cases reaching a settlement before trial, according to the American Bar Association, State Sen. Gennaro Bizzarro, R-New Britain, said that in practice this bill will not lead to significantly more judge or jury decisions removing “bad cops” from police forces, but instead will result in many more settlements that will increase costs for the towns and cities.
In an effort to address this concern, the bill contains a provision for the Police Accountability Task Force to study the need for increased municipal liability insurance or individual liability insurance for police officers to cover the costs of such lawsuits.
In contrast, Roberge said that she believes the new bill will have an impact because police will be deterred from acting in bad faith, not because of the cases that will be brought.
“We believe it will have an effect because it will have the effect of deterring misconduct,” Roberge said.
Whether the law will dissuade more men and women from working as police officers, prompt retirements or harm recruiting, as some law enforcement advocates have warned, remains to be seen.
According to several legislators, police officers in their districts are now contemplating early retirement. On the floor of the Senate, State Sen. Cathy Osten, D-Sprague, warned that 20 percent of the Norwich police force were ready to retire early if the bill went into effect as they understood it.
According to Mitchell, the law would have a detrimental effect on police officer morale, but “not a great impact on cases, a much greater impact on taxpayers who end up paying for settlements and litigation.”
According to Connecticut’s American Civil Liberties Union, however, only police officers with an intention of harming the public should be concerned.
“All other officers, that are acting in good faith and doing their job, benefit from the same standard that municipalities and the state are required by law to indemnify. The officers that are walking outside of their door with a willingness and intention to harm the public are the ones who should be worried,” said Melvin Medina, the Public Policy and Advocacy Director for the Connecticut ACLU. “If we see thousands of police officers marching against [this bill] then we know we do have a police violence issue in Connecticut. Their response is more of an indication than cases we’ve seen in the state.”
A lot left to interpretation
Connecticut is the second state, after Colorado, to pass legislation addressing the issue of governmental or qualified immunity for police officers following the death of George Floyd in Minneapolis. Floyd’s death has sparked nationwide protests and a larger debate regarding race and policing in the United States.
Unlike the bill passed in Connecticut, however, the law in Colorado law does not recognize actions taken in objective good faith.
“In Colorado, if a police officer violates someone’s civil rights that police officer is liable. In Connecticut that is not the case,” explained Jay Schweikert, a policy analyst with the CATO Institute. “The bill still allows governmental immunity to be used where a police officer has an objectively good faith belief, that’s a significant limitation.”
Schweikert said that if a police officer can demonstrate good faith, there is no liability and a plaintiff has no recourse, even if their rights were violated.
“I’ll be curious to see what Connecticut courts make of this language,” Schweikert said. “You could interpret it very narrowly or broadly.”
Objective good faith, Schweikert said, could be referencing current practices when it comes to qualified immunity, rather than bypassing the role of precedent or case law.
“It might mean the case law has to be clear,” he said. “If that’s the way the court interprets it, this bill codifies existing federal qualified immunity. A reasonable interpretation would be that most of the time this bill is redundant to the federal doctrine.”
In part, that’s why advocates like the Connecticut ACLU are calling this bill just a first step.
“We need to go back next special session or regular session to continue to work to ensure that we are holding police accountable,” Medina said.