OPINION: What is ‘qualified immunity’ anyway?

OPINION: What is ‘qualified immunity’ anyway?

By Mike Brodinsky

On May 25. 2020, police in Minneapolis forced George Floyd to the pavement and handcuffed him. A police officer kept his knee on Floyd's neck for 7 minutes and 46 seconds while other police officers stood by. They heard Floyd begging for his life and saying more than 20 times that he could not breathe.  After Floyd appeared unresponsive, one of the officers checked his pulse. But he was dead.

In Connecticut and across the nation, people asked: Could something like that happen where we live? Should state laws regarding the use of force and police accountability be reset so that what happened to Floyd could not happen here? Most Connecticut lawmakers answered “yes” and they passed “An Act Concerning Police Accountability.” 

The new law is complicated and not well understood by the public. That leaves an opening to misrepresent the legislation, and predictably some legislators, candidates, and advocates have not been fair with their explanations. Some have made irresponsible predictions about the consequences of the legislation to stir an emotional response and get a political boost. By doing that, however, they have not served the public well.

An example of this is in Steve Knight's column that the R-J published on 10/4/20.  That piece is a political promotion of Paul Cicarella, a Republican candidate who wants to succeed retiring Senator Len Fasano.  According to Knight's interview of the candidate, Mr. Cicarella claims that the new police accountability law eliminates a doctrine called "qualified immunity" that police unions like very much.  Mr. Cicarella alleges that this part of the bill will hurt recruitment of new officers.  But Mr. Cicarella is wrong about what the law says.  He is spreading misinformation that could hurt the communities he wants to represent.

We'd be better served if we learned about the new law from its the co-author, Rep. Steve Stafstrom. He visited Meriden's Public Safety Committee recently and explained (RJ, 9/12/20) it's a "misconception" that the new law removes qualified immunity. He said any detrimental effect on recruitment is caused by misinformation about the legislation — not the legislation itself.

What is “qualified immunity” anyway, and what does it have to do with police reform? “Qualified immunity” is a controversial judge-made legal doctrine that, very generally, allows police to violate someone's constitutional rights, often with impunity. Although it is intended to protect officials who make reasonable but mistaken judgments in situations where the law is unclear, critics say that the doctrine has been stretched to the point where it has become a safe haven for police misconduct.

Qualified immunity is preserved in the new legislation, nevertheless, despite what Mr. Cicarella says. The text of the statute provides that police officers are immune from liability if they act with an “objectively good faith belief” that they are not breaking the law.

What does “objectively good faith belief” mean? Judges will flesh this out over time as a variety of scenarios come before them. But based upon the text of the law, it means, for example, that if an officer kills someone and claims self-defense, the officer can’t use some unbelievable story to invoke immunity. It also means that the reasonableness of police conduct must be based upon the facts the officer knew or should have known, rather than on a state of panic or imagined danger. But even in a case of panic, imagined danger, or where an officer without malice misconstrues the law or misjudges the situation, and kills someone who shouldn’t have been killed, the legislation says that even in this situation,

the officer will not have to personally pay.

 Although the officer may be liable, the municipal employer, or its insurance carrier, will compensate the victim — not the police officer.

On the other hand, if a cop goes rogue, there’s no immunity. If he or she willfully follows a personal code of behavior contrary to what the law requires, and conducts his or herself in a willful, wanton and malicious manner and hurts someone, that police officer will have to pay. That’s always been the law; it’s also in the new act.

Claims, therefore, like Mr. Cicarella's, that qualified immunity has been eliminated may whip up police anger and public fear.  But the claims are simply not true. Communities need good cops to serve them, and we are grateful for them. But no one is well-served in the long run by demagoguery. So good police officers, including those who make mistakes, have nothing to fear from this part of the bill. And it's hard to see how good men and women would not want to be police officers just because Connecticut's version of qualified immunity is now a matter of state statute.

Mike Brodinsky is a former Wallingford town councilor and host of “Citizen Mike” on WPAA-TV.







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