Police

Connecticut Passes Law Curbing Qualified Immunity—but with Loopholes

The law is a step in the right direction, but has significant limitations, that should be a warning sign for future reform efforts.

|The Volokh Conspiracy |

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.

NEXT: 150 Law School Deans ask ABA to require "every law school [to] provide training and education around bias, cultural competence, and anti-racism"

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  1. Even the Connecticuit law would curb the most egregious conduct, which is the biggest issue with QI. Police union reform and an end to the Drug War are much more important at the end of the day towards curbing the majority of bad cops and unnecessary interactions with police.

  2. “HB 6004 requires indemnification for all officers who don’t act maliciously . . . .”

    So this is basically a plan to mulct the taxpayers (who aren’t paying much attention and are generally ignorant) in order to fund (i) windfall settlements for a handful of people who have ambiguous encounters with police and (ii) attendant payouts to trial lawyers, who are definitely a well-organized interest group (indeed, they seem to have Prof. Somin shilling for them).

    1. Officers get indemnification now.

      1. Exactly. Municipalities are the real parties in interest in all the qualified immunity lawsuits, and the doctrine protects taxpayers from exorbitant payouts. If police activity becomes too expensive for municipalities to maintain, the consequence will be gated communities and private security guards. (Which is probably how most of the Conspirators live now, and how libertarians think everyone should live, but is in fact incompatible with the maintenance of a civilized polity.)

  3. 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.

    That seems like a stretch. The fact that this exception is based on an objective rather than a subjective standard means that an officer will have difficulty taking advantage of it by merely plugging his ears. This provision has to be applied correctly by courts, of course, but that’s true of all legislation.

    1. Considering the way the good faith exception to the 4th amendment’s exclusionary rule is applied, I don’t think it’s a stretch at all.

      When police officers aren’t punished as long as they believed they were right, police departments have no incentive to actually train officers on what is wrong, because knowing something is wrong could create liability.

      The good-faith exception is bad for another reason though. Fundamentally, if your rights were violated, you deserve to be compensated for that. That should be a fundamental principle of a free society. When a democratic society builds a police force to enforce the laws it has decided on, we should all bear an equal share of the costs that come from that.

      The real question is: When someone is treated terribly by the police, who pays the price? Does the poor unlucky sap have to shoulder that burden alone, or does society step in to compensate him/her? The same logic undergirds the 5th amendment right to compensation for takings.

      1. But statute doesn’t say officers shouldn’t be “punished as long as they believed they were right”—that belief also has to be objectively reasonable. (And of course, the goal of a civil cause of action like this is, at least notionally, about compensating victims rather than punishing anyone.)

        The real question is: When someone is treated terribly by the police, who pays the price?

        I’m not aware of any contemplated legislation that purports to offer a cause of action for “being treated terribly”.

        1. I think you’re reading things into the statute that aren’t there. It doesn’t say the belief must be “objectively reasonable.” It simply says “objectively good faith belief” without defining “objectively” or “good faith.”

          A police officer who violated a citizen’s rights as a result of poor training from his department may indeed have had an “objectively good faith belief that [his] conduct did not violate the law.”

          1. If apolice officer violates a citizen’s rights as a result of poor training from his department, then the proper defendant is the agency, not the agent. suing the agent won’t cause the training to be changed, but successfully suing the agency will.

  4. Every Republican in the Connecticut Senate voted to preserve qualified immunity. Every Republican save one in the Connecticut House voted to preserve qualified immunity. The Connecticut Republican Party has signaled that qualified immunity will be a centerpiece of its political efforts aimed toward November.

  5. “ 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.”

    Should then, LEOs be allowed to withdraw from any situation where their intended conduct has not been clearly defined? That is, should Dispatch be routed through Police Union Attorneys?

    1. I think you’ll find they are allowed to since there is no duty for them to do anything.

      https://mises.org/power-market/police-have-no-duty-protect-you-federal-court-affirms-yet-again

      They also could instead of using their “intended” actions use ones that are constitutional. If they can’t intervene without violating the constitution, which is laughable to even consider as a possibility, then no they shouldn’t intervene.

  6. Why anyone would want to be a police officer these days is beyond me. Perhaps that is why department are left recruiting sociopaths and derelicts.

    But I am looking forward to going back to the days of citizen militias enforce the law. The libs are going to love that when it becomes reality after “defund the police”….

    1. Over $100k per year with overtime on a high school education. Lifetime pension of half salary after 20 years of service, going up to 90% of salary after 33 years of service. Add pension spiking and that makes for a real comfortable retirement before the age of 55. That’s one reason why.

      1. What jurisdiction is offering this? Not around me. Pay is maybe $50K plus overtime and benefits for most towns.

        The few guys in my neighborhood who used to be cops said even though the pay is decent the hours and job suck. Holidays, nights, and weekends. On-call sucks too. Could end up pulling a 16 hour shift with no notice. Most of the guys did it when transitioning out of the military as it was an easy job to get and they didn’t need training due to the service. But everyone said after 2-3 years they had enough and moved to the private sector. And this was before the whole “defund the police” movement.

        1. I didn’t say starting pay of $100k. After several years, with overtime.

          I also didn’t say it was a dream job for all. It’s a job that a high school graduate can make a living at and retire at 40 or 45 or 50. If he wants, he can get another job for another 20 years while collecting his pension.

          I’m guessing helping people is also a motivation for some. And you said it, it can be an easy job much of the time.

          It’s the answer to “why”. It should no longer be a question you can’t comprehend the answer to.

          1. Money ain’t everything and money ain’t anything if you end up in jail because an agitator got you on camera or you have a big fat civil judgement against you.

            1. Yes, the infinitesimal number of cops who go to jail do so not because they broke the law but because “agitators” “got them on camera.”

              1. Who needs a rat squad? The honest and pure cops are only afraid of the agitators with cell phones anyway…

            2. There’s always the option to take a step back and not do something wrong. Then no one will get anything on camera.

      2. Add pension spiking and that makes for a real comfortable retirement before the age of 55.

        As long as you don’t have one of many somewhat less “comfortable” outcomes before then. There’s a risk-reward tradeoff just like most other things in life.

    2. “Perhaps that is why department are left recruiting sociopaths and derelicts.”

      Or perhaps they WANT the sociopaths and derelicts.

    3. You have causation backwards. If the police weren’t already recruiting sociopaths and derelicts, we wouldn’t need these kinds of controls.

      Note – I am not saying that all cops are sociopaths or derelicts. I am merely acknowledging that some are – and that the good cops have been ineffective at weeding out their bad peers.

      1. Around me they recently started hiring high school graduate. Previously you had to have a college degree, then about maybe 10 years ago you had to at least have an associates. Now straight up high school GED is enough.

        The police chief has said prior to this recruitment is difficult. They rolled out a bunch of programs to make their department look better, but are still stuck with trouble filling the positions.

        1. So you’re saying that recruitment started to be a problem 10 or 15 years ago and that recruiting has gotten harder since. I find it interesting that courts increasingly began applying the doctrine of qualified immunity to cases involving the police use of excessive or deadly force in 2005 and that recruiting has, by your own statement, gotten harder as the Supreme Court has passed down cases making QI stronger. That data seems to contradict your hypothesis.

          1. Maybe you missed my point. Recruiting WAS already hard. I imagine NOW it will be EVEN HARDER.

            Since we still need police, until a suitable alternative is deployed (and I don’t think sending out a social worker to conduct mediation between me and the guy who used force/violence to break into my house is going to cut it) this means that the people signing up for the job are probably going to be attracted to it for the wrong reasons. Money is one thing until you end up on the nightly news with accusations you are a racist thug. Then you lose your job and who is going to hire you after that? Or the guy you got into a tussle with sues you and despite the fact you were trying, by the seat of your pants in a tense situation, to respect the rights of others the court finds the other way. The department insurance company only covers part of the judgement so now you have liens against all your property and paycheck. Who is going to want this job especially after there are many examples out there of former police officers who have been screwed by the system? No one. Or at least no sane person, which is going to be the ultimate problem.

            1. No, I got your point but I think you missed mine. Recruiting was hard and is getting harder but the timing suggests that QI at least partly the cause, not the result.

              While neither I nor anyone else knows the chain of causation, my hypothesis is that QI makes it harder to get rid of bad cops. Stricter QI has made it even harder. The more bad cops who stick around, the more toxic the environment for the good cops and the less attractive the profession is for those who are motivated by the sense of service and mission more than by cash.

              If, on the other hand, you start holding the bad cops accountable (and yes, that means breaking the code of silence which will be very uncomfortable for the good cops who are left), then the departmental culture can change and maybe you’ll finally be able to hold on to the ones who want do the job right.

              You describe it as an active tussle where you’re making decisions by the seat of your pants in a tense situation but these are not close cases. I challenge you to defend the decision to grant QI to the cops who stole $225,000 from an evidence locker or the guy who climbed onto the hood of a car to empty his magazine through the windshield or the cop who released a police dog to attack a suspect who was already laying on the ground, hands at his side or any of the other well-documented examples of abuse.

              Even when victims are allowed to sue, cops enjoy a huge presumption in their favor by juries. And in the tiny minority of cases where the decision goes against the cop, contrary to your assertion, the government almost invariably pays the cost, not the individual cop.

              Yes, we need police. But we need good police and that means fixing the culture. Getting rid of QI will be part of that and eventually will make recruiting easier.

              1. It’s very implausible that policing has gotten worse over recent decades. Objective metrics, such as the number of unarmed people (black and white) shot by police, point in the opposite direction.

    4. If you hate people, enjoy violating them, and want to get paid for doing it, who do you work for?

      1. TSA.

    5. “Why anyone would want to be a police officer these days is beyond me.”

      One of the only jobs that didn’t evaporate in the pandemic.

    6. Personally, I’d prefer it with citizens militias. That way at least you’ll know where the asshole who kicked down your door lives.

  7. Other reforms they should pass:
    – limit police unions to only be able to bargain about wages. Union contracts can’t specify any other rules or provisions.
    – duty to intervene to protect life when another officer engages in life-threatening actions
    – lying in an official report of any kind should result in, at the very least, the officer being immediately fired and ineligible to be rehired in any law enforcement role anywhere in the state

    None of these should be controversial.

    1. Why should police union contracts be different than other public sector contracts? Are state university professors’ unions limited to bargaining about wages?

      1. Pretty sure the last couple of months show why police unions are different than teachers’ unions.

        1. *looks at teachers union demands to reopen in Cali* No, not really.

          1. Case and point – how’s that working for the teachers’ unions?

            Ah. I see.

      2. They shouldn’t. But that’s an even larger uphill battle. One step at a time.

      3. Why should government unions get to bargain against the people at all?

        1. Because the government is big and can bargain between it’s components at arm’s length without issue.

          1. The people did not elect the government unions. If government unions are allowed to bargain against other parts of government, then voters should elect government union officials.

            But this is beside the point of police unions. Police should definitely not be allowed to unionize to negotiate. Their power is too dangerous to allow any aspect of it to be subject to negotiation against the people.

          2. That the government is big is unquestioned. That it can bargain between its components is also clear. That it can do so without issue is the question at hand. You cannot simply assume that point as part of your answer. Especially since rather considerable evidence suggests the contrary.

    2. Limiting bargaining to wages seems a little tight. I’d let unions also negotiate over things like the provision of vests, orthopedic shoes and other protective gear. Medical benefits, too. But not much else.

      Mostly though, I’d like an elimination of the double standards. What’s good enough for the police is good enough for the rest of us. If police are allowed to be ignorant of the law, so should we. If lying to the police is a crime, then the police lying to us should be a crime, too. (Wait, you say. That will make undercover investigations impossible. That’s true. Then lying back to the police should not be a standalone crime.)

    3. “Other reforms they should pass:”

      Should they repeal the whole Constitution to do it, or just the pieces of it that get in the way of reaching your desired end state?

      1. You should read it. Seems like you’re completely unfamiliar with what it says.

        1. It says that people have a right to assemble peaceably and petition their government for a redress of grievances. Seems like you’re the one unfamiliar with the Constitution.

  8. But much of the resulting legislation [on emminent domain reform] was largely toothless, because legislators were able to satisfy public opinion without offending powerful interest groups that benefited from the status quo.

    Which includes the legislators themselves, who will have to come up with the lost revenues, making re-election more difficult.

    1. Krayt: By “lost revenues”, did you mean “campaign contributions”? The government more often loses tax revenues than gains them through eminent domain. Road-building mostly turns productive, tax-paying farm or residential land into tax-consuming asphalt. _Kelo_ razed tax-paying houses and replaced them with … nothing. The granddaddy of all eminent-domain-for-private-development schemes, _Poletown_ increased tax revenues for a while because factories were built over the razed neighborhood, but in the long run, the factories closed and tax payments stopped.

  9. Anytime a situation arises where one person is attempting to force their will on another person conflict may arise. When the police are involved just what limits are imposed on an officer if an alleged law violator refuses to cooperate. The answer is to place the person under arrest and let the DA figure it out. The penalties for resisting arrest must be strengthened, perhaps with mandatory penalties.

    1. The penalties for false arrest must be real.

  10. If ordinary citizens “… 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.”

    Seems pretty obvious, but is apparently controversial. I’ve always been told that “ignorance of the law is no excuse” but I guess that doesn’t apply to the police.

    1. There’s usually a requirement that people be put on notice before they can be held to a legal requirement. A property has to have “No traspassing” signs posted before they can be prosecuted for criminal trespass. This is a holdover from the common-law era where mens rea was required to convict.

  11. “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. ”

    The indemnity provision works against that. If the agency has a number of successful lawsuits against its members, that they’ve had to pay for, they’re going to demand proper training be adhered to. When I say “a number” I’m assuming that the number is 1, at most 2.

  12. If anyone is truly surprised at the presence of loopholes, seemingly quite large loopholes, who might they be?

    1. “If anyone is truly surprised at the presence of loopholes, seemingly quite large loopholes, who might they be?”

      People who expect politicians to do things that are popular with the people who vote on the occupancy of their office. QI is popular with government agents and their union representatives and the list stops right about there.

      1. Speak for yourself. As a taxpayer, anything that limits municipal liability and deprives ambulance-chasers of money is popular with me.

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