By Guy Page
A bill that would expose police to lawsuits for exercising their duties is scheduled for review Wednesday 9 am in the Senate Judiciary Committee.
S254 would “create a private right of action [power to file suit] against law enforcement officers for violations of Vermont constitutional, statutory, and common law rights. This bill also proposes to waive the use of qualified immunity as a defense in such actions and provides for qualified indemnification of law enforcement officers by law enforcement agencies.”
The Vermont Constitution only confers legal immunity on the Legislature: “Article 14. [Immunity for words spoken in legislative debate] – The freedom of deliberation, speech, and debate, in the Legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.” Vermont courts extend a qualified immunity to state government employees – including police – charged with carrying out laws established by the Legislature.
If S254 becomes law, it could have “the most negative impact on policing in Vermont in recent history,” the Vermont League of Cities & Towns said Feb. 4.
The bill “eliminate all immunities applied to law enforcement officers – that is, it opens them to suits for any action or lack of action,” the League wrote. “The bill specifically singles out law enforcement officers. All other governmental officials covered by qualified immunity would retain that protection. VLCT is concerned that the committee members misunderstand the doctrine of qualified immunity and how it works. Advocacy staff testified about our concerns with the scope of S.254 and its potentially devastating impact on community policing, access to law enforcement services, recruitment and retention of law enforcement officers.”
To date, only one state – Colorado – has eliminated police qualified immunity. Opponents of S254 are concerned police would leave Vermont for more legally-friendly jurisdictions. Even without S254 as law, police departments in Burlington, Rutland, Montpelier, Brattleboro all report severe staffing problems. The Vermont State Police and the Dept. of Corrections also are understaffed. Recruitment and training is a lengthy process and the capacity of the Vermont Police Academy is unequal to the current demand.
Taxpayers also would suffer, the League claimed, noting “fiscal impacts on taxpayers and property taxes due to higher insurance premiums that result from additional prolonged and protracted litigation.”
S254 is co-sponsored by the committee chair, Sen. Richard Sears (D-Bennington), and its vice-chair, Sen. Phil Baruth (D-Chittenden) – thus assuring it will get all of the attention the committee leadership believes it needs. The committee has discussed the bill off and on over the last two weeks. At Wednesday’s hearing, testimony is scheduled from the Department of Public Safety, the Vermont League of Cities and Towns, the VT Dept. of Financial Regulation and the ACLU.
Now Sears, Baruth, and Sens. Kesha Ram (D-Chittenden) and Becca Balint (D-Windham) want to take that protection away from police. They are supported by the American Civil Liberties Union of Vermont, which says qualified immunity supports racist policing.