By Guy Page
Windham County Sheriff Mark Anderson said Wednesday that if police are stripped of current legal protections against civil rights lawsuits, he will stop providing law enforcement services for 14 towns in his county.
As introduced by Sen. Kesha Ram (D/P – Chittenden) and others, including Windham County Sen. Becca Balint, S254 would take from police officers the ‘qualified immunity,’ now enjoyed by all state and local employees, against punitive lawsuits filed by people unhappy with how they performed their duties. The stated intent of the law is to provide Vermonters with stronger legal remedies against police who violate their civil rights. The version passed by the Senate maintains the current level of qualified immunity protection for police, but also commissions a study on how it might be revoked. It also requires police departments to keep public records of judgements and settlements of claims paid out for lawsuits.
In House Judiciary Committee hearings this week, S254 also came under fire from Steve Howard, Executive Director of the Vermont State Employees’ Association. The VSEA represents about 110 state law enforcement officers, including Vermont State Police officers not represented by the troopers’ union.
“State employees feel they should feel as though they should have the backing and support necessary to do the work that the laws passed in this building require them to do,” Howard said. “These employees deserve to know that so long as they are following the guidance of the training they receive from the state on the manner in which they’re supposed to perform their jobs, they will be protected.”
The federal courts already protect the civil rights of Vermonters alleging violations by police. Of 10 civil rights lawsuits brought against cops in federal courts in Vermont, qualified immunity has been waived eight times, Howard said.
House Judiciary has not voted yet on S254. Kicking around State House committee rooms is a book by Ben & Jerry’s co-founder Ben Cohen called “Above The Law: How ‘Qualified Immunity Protects Violent Police.” The cover shows a cop aiming his sidearm. The back cover describes qualified immunity as “a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights.”
For Windham County Sheriff Anderson – who is also president of the VT Sheriffs’ Association and a Brattleboro native and career Windham County cop who graduated from high school on a Friday and was enrolled in the Vermont Police Academy the next Monday – revoking qualified would leave him no choice but to terminate law enforcement contracts with the 14 small Windham County towns his department now serves.
“If S254 passes as introduced, I will be eliminating the contracts the Windham County Sheriff’s Dept. holds for law enforcement,” Anderson told Vermont Daily Chronicle during a visit to the State House Wednesday. Vermont sheriffs are legally obligated to provide services such as transportation and serving legal papers. They are not required by statute to offer municipal law enforcement. If Windham County deputy sheriffs are no longer on the job, the entire burden will fall to the Vermont State Police, who are already understaffed.
The VSP takes a lead role on patrolling I-91 corridor north from the Massachusetts state line – a favorite corridor of fentanyl and heroin smugglers. Adding the responsibility of covering the backroads of Townshend and many other rural communities would reduce VSP coverage of the freeway, thus making Vermont even less risky for drug smuggling hubs in Springfield, MA and Hartford, CT.
To illustrate what losing qualified immunity would mean to police, Anderson talks about an incident that happened to him years ago when he was a rookie Windham County Sheriff’s Deputy.
“I stopped a person who was in possession of marijuana, when it was illegal. I detected the odor of it.” The suspect “provided me with a rolled up paper towel. I opened said paper towel.”
“Under this bill, this would be a violation of his rights against search and seizure,” Anderson said. “At the time I didn’t know it was a container. Under this bill he would have a right to sue me, because I had opened a container – a paper towel.”
As introduced, S254 would allow damages of up to $25,000. Most young police officers don’t have that much money in the bank. “We’re talking about taking away their house,” he said.
Indemnifying officers for this amount adds significantly to department costs, and could tempt departments to declare ‘bad faith’ by the officer, thus leaving him/her without departmental protection.
The Legislature and other state employees would maintain immunity from civil rights lawsuits.
Also, the drastic step of removing qualified immunity is unnecessary because the law enforcement community has been busily incorporating many recent legal statutes aimed at reducing police misconduct and protecting the civil rights of all Vermonters.
“We have a lot of new or young initiatives that the GA has created in the last five years, that are just growing into their full potential,” Anderson said. “We need to trust that these initiatives are well thought out.”
As Howard noted, courts already are willing to waive the ‘qualified immunity’ argument if justified. Furthermore, cops have been decertified for misbehavior.
Anderson said that even though losing qualified immunity looms in the near future of Vermont law enforcement, recruits are still signing up to become Vermont police officers. He explained their willingness in one word: “courage.”