The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Friday, Connecticut became the second state to pass a law limiting qualified immunity, the doctrine that shields police officers and other public employees from most liability for violating constitutional and statutory rights. Unfortunately, unlike the much stronger reform law adopted by Colorado in June, the new Connecticut law has severe limitations. Nick Sibilla of the Institute for Justice has a helpful discussion in Forbes:
Under HB 6004, "no police officer, acting alone or in conspiracy with another, shall deprive any person or class of persons" of their rights enshrined in the Connecticut Constitution's Declaration of Rights, the state's equivalent of the U.S. Bill of Rights. Anyone who has had their rights violated by a police officer can then sue them for damages in civil court…
Unfortunately, the new law contains multiple loopholes that undermine its effectiveness. First and foremost, HB 6004 will grant police officers immunity if they "had an objectively good faith belief that [their] conduct did not violate the law." Without clearly defining either "objectively" or "good faith belief," this carve-out threatens to block far too many victims from obtaining justice they deserve.
It's also completely unnecessary. Even if this exemption were eliminated, since HB 6004 requires indemnification for all officers who don't act maliciously, the vast majority of police wouldn't have to pay a dime if they violated someone's constitutional rights.
Second, HB 6004 will let victims who win be eligible to collect attorney's fees (which can quickly balloon), but only if the officer's actions were "deliberate, wilful, or committed with reckless indifference." That provision is much more limited than Colorado's police immunity reform, which guarantees attorney's fees to any "prevailing plaintiff." Third, Connecticut's new law only applies to police officers, and not the thousands of other government officials throughout the state.
The "good faith" exception is particularly problematic, because it could incentivize "hear no evil, see no evil" behavior by police departments. If police are not told that certain types of dubious practices are illegal—or, perhaps even told they are appropriate—they could well plausibly have a "good faith belief" that illegal tactics are perfectly fine, and thus get immunity. Under the Colorado law, by contrast, the good-faith exception only allows the government to indemnify the officer for successful claims against him or her; it does not forestall liability entirely.
Needless to say, law enforcement agents themselves don't give ordinary citizens any "good faith" exemption from having to obey the law. If the latter run afoul of the law, they are liable regardless of whether they sincerely believed their conduct was legal. Police should be held to at least the same standards as civilians in that regard.
As with the Colorado law, it is also not clear to what extent the Connecticut law applies to state law enforcement agents work as part of state-federal task forces. In the past, state officers working with the feds in such task forces have been able to claim immunity from state lawsuits by arguing that they should be treated as federal officials, rather than state ones.
As Sibilla explains, the Connecticut law is still a step in the right direction. But its limitations are a warning sign of how state-level qualified immunity reform can be watered down to avoid antagonizing police unions and other law enforcement interest groups. Sibilla describes how police-union lobbying had an impact on HB 6004, which only barely passed, even in this weakened form.
There is a parallel here to the history post-Kelo eminent domain reform, under which 45 states enacted new reforms limiting state and local governments' power to take private property to promote "economic development." In the wake of the Supreme Court's enormously unpopular 2005 ruling upholding such takings, there was broad support for curbing them, and stat legislatures worked to satisfy it. But much of the resulting legislation was largely toothless, because legislators were able to satisfy public opinion without offending powerful interest groups that benefited from the status quo.
Thanks to widespread political ignorance, most of the public doesn't follow the details of legislation, and therefore can't readily tell the difference between effective reforms and largely cosmetic ones. By contrast, organized interest groups can. Legislatures have incentives to satisfy the former without antagonizing the latter, and that helps explain why many state legislatures passed weak or totally ineffective eminent domain reforms after Kelo.
Post-Kelo reform was far from a total dud. Some twenty states did still pass reforms that significantly limited takings. But it did not achieve as much as it could and should have.
Like eminent domain reform after Kelo, abolishing qualified immunity enjoys widespread public support in the wake of the death of George Floyd and the resulting public focus on police abuses. But, as in the case of eminent domain reform, the devil of qualified immunity is often in the details, and most voters probably know little about them.
It is too early to say whether qualified immunity reform will follow the same pattern as eminent domain reform. So far, we only have two state reform laws, and one of them (Colorado) is quite impressive, while the other has at least achieved some modest progress. Nonetheless, reform advocates should be aware of the dangerous dynamic that can arise when interest groups and legislators can take advantage of public ignorance to water down reform efforts.