Cops will leave VT if qualified immunity bill passes, Schirling warns

Douglas Kilburn (above) took a swing at a Burlington police officer. A scuffle ensued, and Kilburn sustained injuries. He died several days later. His estate received a $45,000 payment from the City of Burlington, Public Safety Commissioner Michael Schirling testified this week.

By Guy Page

A bill stripping police of protections against civil rights lawsuits isn’t needed and would worsen Vermont’s already critical shortage of law-enforcement workers, Vermont Public Safety Commissioner Michael Shirling told the Senate Judiciary Committee March 9.

Supporters of S254 – including the ACLU, racial justice groups, and sponsors including Sens. Becca Balint and Kesha Ram-Hinsdale – say police unfairly target minorities and others and that their ‘victims’ should be allowed to file civil rights suits. 

At present state law gives ‘qualified immunity’ against lawsuits to all state and local employees – including legislators and other elected officials. Schirling opposes both the bill as introduced and an attempted ‘compromise’ draft introduced this week. 

The following objections to S254 are excerpted from Schirling’s testimony, which also includes alternatives to denying qualified immunity.

DPS opposes any legislation that singles out law enforcement officers to strip them of the same legal protections afforded other public officials. 

Both S.254, as introduced, and Draft 2.1-S.254 would deprive law enforcement officers, and only law enforcement officers, of the defense of qualified immunity. Other government officials would continue to perform their governmental functions with the safeguard afforded by qualified immunity. By singling out law enforcement officers, S.254 feeds anti-police sentiment, sends the message to Vermont’s Judiciary that it is not applying the doctrine of qualified immunity fairly in cases involving law enforcement officers, and abdicates the Legislature’s responsibility to work with law enforcement and our communities to improve public safety. 

1. Vermonters have not been denied just compensation for harm caused by law enforcement officers because of the doctrine of qualified immunity. Vermont state government and local towns paid out more than a quarter of million dollars between 2004 and 2014 for alleged Taser misuse. The City of Burlington paid the Estate of Wayne Brunette $270,000 in 2019, and the Estate of Douglas Kilburn $45,000 in 2021; the town of Hartford paid $500,000 to Wayne Burwell for alleged unreasonable force in 2017. 

Since 2016, Vermont League of Cities and Towns – which operates a municipal property and casualty fund that insures most of Vermont’s municipalities and their law enforcement organizations – has paid out more than $1.7 million in law enforcement-related damages and settlements. 

2. Vermont courts are not applying the doctrine of qualified immunity unfairly or with egregious results. The Second Circuit, the federal court of appeals that has jurisdiction over Vermont cases, has denied qualified immunity in eight out of the 10 most recently reported cases alleging excessive force by law enforcement officers. In the eight cases where the Vermont Supreme Court was asked to apply the doctrine of qualified immunity, the Vermont Supreme Court denied qualified immunity in three cases and allowed qualified immunity in five cases. 

3. The defense of qualified immunity does not disproportionately impact Vermonters by race. The doctrine of qualified immunity was not a bar to the recovery of damages to Wayne Burwell ($500,000) or Obediah Jacobs ($50,000) or Gregory Zullo ($50,000). And just last month, district court Judge William Sessions ruled that a pair of civil rights lawsuits brought by Jérémie Meli and Mabior Jok against Burlington police officers can proceed to trial. 

4. The Vermont General Assembly just passed a sweeping use of force law that should be given a chance to work. In October 2021, Vermont’s new, use of force law went into effect. In addition, every Vermont law enforcement agency has adopted a new, statewide use of force policy. Those reforms should be given an opportunity to show results before giving up on real reform and accountability that will benefit all Vermonters. 

5. Singling out law enforcement officers for disparate treatment will further exacerbate the current crisis in public safety. Many law enforcement agencies are at their lowest staffing levels in history. Some agencies are on the precipice of closure. The State Police has seen three times more departures than hires in 2021 – an unsustainable attrition rate. 

S.254 will make it more difficult to attract and retain police officers, which will ultimately compromise public safety. S.254 demonizes all law enforcement officers. The proposed bill feeds into and fuels anti-police sentiment that has taken root nationally in our country. 

By targeting law enforcement officers, the bill sends the message that law enforcement officers and the work they do are somehow less important and less deserving of protection than other government officials or other government work. This is a demeaning and demoralizing message that will likely drive out of the profession altogether those who are in the profession nobly to serve their communities. 

6. S.254 is fiscally irresponsible. This bill will cause money that could be spent on improved training and robust innovation to be invested instead in insurance premiums, attorney’s fees, and litigation costs with taxpayers footing the bill. 

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13 replies »

  1. Keisha Ram Tisdale lives atop an ignorant but handsomely made PC tower of ivory. The only thing this prissy princess lacks is a sense of reality. She’s an antagonist who pretends to be a protagonist in another elitest fairy tale.

    • Agreed! She went from living in Shelburne to living in Charlotte all while representing Colchester(?) She loves igniting fires & fanning the flames. She’s a socialist & an avid social engineer all whilst she herself chooses the most elite & lily-white locales to reside in. She’s a phony & a troublemaker & all the democrat leftists adore her.

  2. Fewer Cops ? Urbanites will be forced to take responsibility for their own welfare as rural people have always had to. You know, get yourselves a 12 gauge, and a box or two magnum buckshot, because when trouble is kicking in your door, or breaking a window, the police are only 15 or 20 minutes away. Or you could just fund, and trust the Police to perform their job professionally, and allow the legal system to do it’s job if the Police are over zealous.

  3. Who do the progressive and leftist Democrat senators think is going to enforce Senate bill S.265, the “anti free speech, silencing of political dissent” bill when all the law enforcement officers quit their jobs over S.264?

    • And I’d enjoy to hear Ram-Hinsdale reply with an answer.
      Quite probably it would sound similar to the word salads emitted from kamala harris.

    • The new and remaining police officers will happily come issue you fines, or take you off to jail if you’re not a threat. This law only impacts police’s ability to deal with dangerous people, not to tyrannize the heard.

  4. Cops will leave VT? They have & will continue to do so…..EXACTLY what the law & order hating “progressives” want. What a coincidence.

  5. This is incorrect. GOOD cops will leave VT. The remaining cops (and the ones who fill the vacancies) will all be pusillanimous morality police who exclusively enforce petty laws on well-behaved citizens, but don’t show up to any call for help until any possible conflict is long over. Why the hell would anyone respond to a dangerous situation when all they can do is get shot or sued (or both!)?
    They say “systemic racism” is any system where the outcome is racially disparate, independent of any of the beliefs or motivations of the actors. Well, this is “systemic kleptocracy”. Sure, it could just be that all the legislators are just braindead, but all that matters is the outcome, right?

  6. Any proposal to lift qualified immunity for police ought to apply as well to individual members of the legislature, for they are much more dangerous than any police officer in the potential for inflicting harm on the public by virtue of their legal authority. Balint and Ram-Hinsdale have benefited well from the victimhood/grievance industry in their political careers since many Vermont voters are easily swept off their feet by such “attributes”.

  7. Bill of Rights, US Constitution, and our Declaration of Indepdence and the Ten Commandments (non-religious) are the only guides we need in our daily lives.
    All else is control and manipulation for the many by the few out THEIR (legislators) fear of US.
    Vermont has NEVER been a violent State. We are full of people who work too hard (you can’t survive here without a job, or a trust fund) to have time to plot violence.
    Violence derives from addiction, boredom, and unresolved childhood trauma.
    Vermont’s violence is imported in nearly every case, from MA, CONN, PA, and NYC.
    LOCAL violence is nearly always connected with alcohol abuse, and many times with drug abuse.
    These are also usually people society has deemed unworthy, and whose slavehood seems impossible to get out of.
    Vermont, as a State, has provided hope to people that simple living is a redemption to being able to simply live. But…these current bureaucrats are robbing of us of even that choice – to live simply.

    Cops are not a solution to our problems. GOOD cops are a boon to society for the simple reason their job is to investigate the truth of an incident, and the GOOD press, to let us know so we know when a pedophile is in the neighborhood, or an addled drug addict is having a bad day, or outsiders are in town dealing fentanyl from the CCP.

    WE need to care MORE for our neighbors. Its not the job of the cops to fix our personal addictions and unresolved traumas.

    These times call for all of us to grow up, put on our adult panties, and own our own b.s. and get right with God.
    Cops are not in charge of doing that for us.
    They are a backup.
    Not a solution.
    Bless the Good Cops in our State.
    I am grateful for them daily.

  8. S265 and S254 – A double whammy:

    Re: “At present state law gives ‘qualified immunity’ against lawsuits to all state and local employees — including legislators and other elected officials.”

    First, a little history. The evolution of qualified immunity began in 1871 when Congress adopted 42 U.S.C. §1983, which makes government employees and officials personally liable for money damages if they violate a person’s federal constitutional rights. State and local police officers may be sued under §1983. Until the 1960s, few §1983 lawsuits were successfully brought. In 1967, the Supreme Court recognized qualified immunity as a defense to §1983 claims. In 1982, the Supreme Court adopted the current test for the doctrine. Qualified immunity is generally available if the law a government official violated isn’t “clearly established.” ‘Qualified Immunity’ was created by the SCOTUS as an act of judicial policymaking. Harlow v. Fitzgerald (1982).

    Second, keep in mind that this legal position affects all ‘government employees and officials”, not just the police.

    So, while the legislature, with one hand, is expanding the definition of what constitutes a criminal threat to ‘public employees’ through S265, it’s arguing against the removal of the ‘qualified immunity’ policy that prevents citizens from holding them accountable for damages they cause.

    And the argument has all of the typical hallmarks, what I’ve always called an ‘Armageddon Response’.

    “Cops will leave Vermont if qualified immunity bill passes…”

    Citizens are caught between the proverbial rock and a hard place. If they hold public officials accountable, not only might they leave for greener pastures (as many Vermont taxpayers are doing), but they may stop enforcing the law to protest the new accountability, as they have when the defunding threat is levied on them.

    In my opinion, both bills, S265 and S254, are designed to strengthen the power of government over ‘we the people’. Our Constitutional rights of equal protection (14th Amendment) and self-defense (2nd Amendment) are being whittled away, not slowly, but certainly.

    S265 and S254 are the face of tyranny.

    1. Removing qualified immunity (QI) doesn’t ‘[single] out law enforcement officers for disparate treatment’, keeping the policy is an afront to our constitutionally guaranteed ‘equal protection’.
    2. QI doesn’t prevent spending ‘… on improved training and robust innovation’. But it does remove the need to do so.
    3. It doesn’t matter what ‘sweeping use of force law’ the legislature passed – when government officials have immunity from breaching those policies.
    4. And the claim ‘… that Vermont courts are not applying the doctrine of qualified immunity unfairly’ is the classic false dichotomy. The problem isn’t with the court’s application of the law. The problem is with the power these laws give government over citizens in the first place.

    If ‘immunity’ from the law is allowed, for anyone, we might as well not have our Constitution.

  9. How about lifting immunity to judges, State Attorneys and law makers who either make laws or fail to enforce laws where as a result a Vermont citizen is seriously injured or killed, or their rights have been violated.Lets see if you add that to Bills S265 or S254 how far that would fly in the halls of the State capital.