Right now, Connecticut’s legislature is considering a bill that, among other things, would ban “qualified immunity” for police in Connecticut. As a result, the phrase “qualified immunity” is getting tossed around now more than any time we can remember, at least outside of legal circles. In Connecticut courts, qualified immunity is called “governmental immunity.”

Federal “qualified immunity” vs Connecticut’s “governmental immunity”

When someone has been harmed by police and wants to file a lawsuit to address that harm, there are two different civil court systems where that lawsuit could take place: federal court, or state court. These courts use slightly different standards and terminology to refer to immunity for police.

Whatever name you call it by, the concept was invented by courts decades ago, on the theory that public employees would be afraid to do their jobs if they thought they could be sued for money if they did their jobs wrong. It is called an “immunity” because the government employee who has it is immune from a lawsuit for money (called “damages”), and it is deemed “governmental” because it only applies to lawsuit defendants who are government employees.

Nowadays, though, Connecticut public employees have no need for immunity, because a handful of state statutes require their employers to provide them with legal defense and to pay any judgment or settlement that results from a lawsuit against them.

As a result, qualified or governmental immunity functions only to frustrate courtroom accountability for Connecticut police employees. It prevents survivors of police violence and their loved ones from having the courts acknowledge the injustice of their pain, and it allows that cycle of harm to continue.

Federal “qualified immunity”

At the federal level, the federal “qualified immunity” doctrine means that a police employee can only be held accountable for violating someone’s constitutional rights if they have violated “clearly established” law. This means that unless a pre-existing court case with nearly the exact same fact pattern exists and the court found that police violated the constitution in that case, the court will apply qualify immunity and stop the case from progressing. Even if a police employee intentionally violates the law, qualified immunity can shield them from accountability. As a result, any time there is legal uncertainty, the deck is stacked so the police prevail, not everyday people.

This has led to absurd results. For instance, in 2020, the U.S. Supreme Court cited qualified immunity when deciding that a police employee couldn’t be held accountable for siccing a dog on a man who was sitting on the ground with his hands in the air, because a previous case had only said it was unconstitutional for police to sic a dog on someone who was lying down. In another case, a court ruled that police who allegedly stole $225,000 were protected by qualified immunity because that court hadn’t ruled before on whether police stealing while executing a search warrant violated the constitution.

Connecticut’s legislature cannot change federal law, so the Connecticut General Assembly would not have the power to end federal qualified immunity. Only Congress or the federal courts could do that. So, the police accountability bill that the Connecticut General Assembly is considering during its special session in 2020 deals with qualified immunity’s state-level equivalent, “governmental immunity.”

Connecticut “governmental immunity” (“qualified immunity” by another name)

Connecticut courts have gradually mushroomed the concept of governmental immunity out to the point where no municipal employee may be held liable for things they do on the job unless those things are deemed “ministerial” rather than “discretionary.” An act is discretionary — and thus cannot create liability — only if there is no state statute or court decision requiring the employee to act as they did. Needless to say, there are very few such statutes or decisions; most sources of law set out what the government must do rather than exactly how it must do it. So, in Connecticut, a municipal police employee who is sued for brutally beating a person during an arrest can simply have the case dismissed by pointing out that there is no state law or court decision setting out exactly the steps that a police employee must take when arresting someone.

The ludicrousness of governmental immunity was abundantly clear recently when the state supreme court applied it to a police employee who appeared to have made negligent decisions while on traffic patrol. In 2012, 15-year-old Brandon Giordano was in the backseat of his friend’s car when Seymour police employee Anthony Renaldi decided to stop the car because of its underglow lights. The car’s driver didn’t stop, and Renaldi decided to chase the car, which crashed, killing Brandon Giordano. Renaldi’s dangerous decision likely ran afoul even of Connecticut’s lax police pursuit policy enacted in 2000, which said police should only chase a car if there was an “immediate danger” if the people in the car weren’t stopped –not likely applicable to a minor equipment problem. Brandon Giordano’s mother sued the police for her son’s death. Last month, June 2020, the Connecticut Supreme Court decided Renaldi wouldn’t be accountable for Giordano’s death because of immunity.

In his dissent from that court decision, Justice Steven Ecker wrote a chilling description of how the qualified immunity doctrine has expanded, year after year, to prevent police from being held accountable for hurting or killing people.

“These recent developments in the law of municipal immunity reflect a flawed jurisprudence that unnecessarily and unjustifiably denies legal recourse to many individuals who sustain actual physical harm as a result of a municipal employee’s negligent conduct,” Ecker wrote.

As Brandon Giordano’s mother sought justice in civil court for her son, her case also ran into another, common problem with qualified immunity: the doctrine often means the court doesn’t make a decision about the merits of the case, but only issues an opinion about whether qualified immunity applied. As a result, courts don’t answer important questions about police violence. In this case, Connecticut’s Supreme Court didn’t take up the critical issue of whether police employee Renaldi was negligent by driving the way he did, chasing a car at high speed, in traffic, over a lights issue. So, while the 19-year-old driver of the car Giordano was in received a sentence in criminal court, the police employee who began the chase in the first place was not held accountable in criminal court (where the state’s lax police use of force standard stymies accountability) or civil court (where the court cited state-level qualified immunity).

As Ecker wrote, the Court’s decision focused on qualified immunity, despite the fact that Giordano’s mother’s lawsuit “relate[d] directly to the acts and omissions of the defendant officers in driving their vehicles without due regard for the safety of [Brandon Giordano].”

Connecticut’s state legislature does have the power to end “governmental immunity,” the state-level version of qualified immunity that prevents police accountability in state courts. The bill that the Connecticut General Assembly introduced for consideration during the 2020 special summer session would end this state-level qualified immunity for police. It is also important to know that Connecticut’s state-level qualified immunity (“governmental immunity”) is only one of the accountability roadblocks when it comes to suing state employees rather than municipal ones.  When it comes to state employees like state troopers, Connecticut law also largely forbids going to court because of an outdated concept called “sovereign immunity.” Instead, someone injured by a state employee most times must go to a state office called the Claims Commissioner and ask for compensation there (the legislature could also abolish sovereign immunity if it wanted to.)

What would ending qualified immunity mean?

Police are government employees who have badges, guns, and handcuffs. As long as policing exists, police actors should be held to the highest standards for following the constitution, not the lowest. People who have been hurt by police deserve the chance to have their cases decided based on the merits, not an almost-insurmountable hurdle that tips the scale in favor of police. Ending qualified immunity means giving a fair chance for people whose rights have been violated by police to see those police held accountable in civil court.

Ending Connecticut’s state-level qualified immunity (“governmental immunity”) would open a currently mostly-closed path for police accountability for survivors of police violence and families of people killed by police. Because the plaintiff in a lawsuit – the person who is claiming the government harmed them – is the one who decides whether a suit is brought in federal or state court, survivors of police violence and families of people killed by police would at least have state court as an avenue to seek redress.

During a recent “listening session” at the legislature around LCO #3471, “An Act Concerning Police Accountability,” however, some people seemed to be confusing – or misrepresenting – what banning police from invoking qualified immunity in civil rights lawsuits would mean.

In addition to letting courts punt the question of whether police violated someone’s rights, the qualified immunity doctrine also prevents courts from awarding damages – financial compensation – even in cases when the court finds police violated someone’s rights. Some opponents of police accountability, including police representatives during a July 17 public hearing in Connecticut, have misrepresented ending qualified immunity as requiring police to pay financially.

In reality, banning qualified immunity will have no financial impact on individual police employees. Allowing a court to award financial damages to someone who police hurt or killed doesn’t mean the damages will be paid by the police employee who harmed someone. Connecticut state law includes what’s known as “indemnification” provisions – laws requiring municipalities to protect police from paying defense costs or judgments in court cases in which they violated someone’s civil rights.

For example, when Enfield police employee Matthew Worden’s violence led to 11 civil rights lawsuits, the town decided to settle 10 of those lawsuits for nearly $800,000 – paid out of the town’s insurance, not Worden’s pocket. This payment scenario likely wouldn’t change if Connecticut did away with qualified immunity. Changing who (or what entity) pays financially when a court finds police have violated someone’s rights is a matter of indemnification laws, not qualified immunity. In the past, there have been policy attempts to require individual police employees to carry personal liability insurance, and to make them use that insurance to pay if a court finds they violated someone’s rights. But that isn’t part of the bill the legislature is considering now, and under existing law it’s unlikely a police employee would face costs.

There is one exception. As one legislator pointed out during a hearing on July 17, municipalities can’t insure the “reckless, willful, and wanton” conduct of employees. Meaning if a court found that a police employee engaged in “reckless, willful, and wanton” violence or other misconduct, that employee could be liable for paying themselves if a court awarded financial damages to the person or people they hurt. If that happens, though, it seems that would be a public good – if the prospect of paying financially (rather than the prospect of irreparably harming someone) is what it takes to make a police employee think before “recklessly, willfully, or wantonly” killing someone, that would seem to be a benefit, not a risk. At any rate, governmental immunity does not extend to acts that are done recklessly, willfully, or wantonly, anyway, so the bill would not change things on the ground.

In truth, existing Connecticut law means the financial impact of banning qualified immunity, if any, would fall to municipalities and not individual police. As mentioned earlier, indemnification laws in Connecticut means towns, typically through insurance, are usually the entities that pay if courts decide police violated someone’s rights. Towns will not have anything to worry about if they do not employ police who violate people’s rights. If the prospect of paying financial costs for unconstitutional policing practices is what it takes for some towns and cities to stop those unconstitutional practices from happening in the first place, that’s a good thing.

Remember, then, police arguments around police employees facing potential financial liability are really police arguing for police to be able to “recklessly, willfully, or wantonly” violate someone’s rights – because in all other cases in Connecticut, police individuals wouldn’t have to pay a dime. And remember, the question of someone paying financial damages also depends on a court determining that a police employee violated someone’s rights. Those worried about payment seem to accept that police harming people is inevitable. It doesn’t have to be.

During the hearing, people also raised the specter of “frivolous” lawsuits “flooding” the courts if qualified immunity for police is eliminated. First, it’s important to remember that just because police might not like a lawsuit, that doesn’t mean the lawsuit is without merit. Second, the courts already have plenty of safeguards to prevent frivolities from going forward. It’s up to the courts to decide what’s frivolous, not legislators, and certainly not policing lobbyists. And third, qualified immunity is rarely invoked early enough in a court case to prevent that case from moving forward. A Yale Law Journal study of more than 1,000 lawsuits against police showed qualified immunity only upheld a motion to dismiss in 7 cases. In other words, police lawyers aren’t usually using qualified immunity to get cases thrown out at the initial stages – it’s later on, especially in the court’s final decision-point, when the vulture of qualified immunity comes home to roost.

What’s Next

The political machine of policing – police unions, affiliate organizations like the fraternal order of police and chiefs of police association, and others – are lobbying hard against ending qualified immunity in Connecticut. In addition to testifying against a modest police accountability bill on the whole, police representatives turned out to explicitly oppose banning qualified immunity. The fact that police are so focused on qualified immunity speaks volumes about how important ending it would be for protecting people’s rights. Despite some in the policing lobby’s claims that they do not want to protect so-called “bad apples,” that’s exactly what qualified immunity does, in addition to upholding an entire system of policing that is rotten to its core.

Meanwhile, police violence happens in Connecticut, especially to Black and Latinx people. During that same hearing, family members of people who police killed and harmed testified about the pain police violence has caused them. Just this week, yet another prosecutor once again declined to seek accountability for Waterbury police who killed Edward Gendron, who, like the majority of people killed by police, was a person with a disability. As that recent report showed, criminal courts remain blocked as an avenue for justice for people hurt and killed by police, leaving civil courts often as the only option for people harmed by police and their loved ones.

People are still in the streets across this state because police violence, misconduct, and racism happen here, all too often.

All government officials, including municipal officials, must use their roles to end police violence and racism. This includes working to end the qualified immunity doctrine, which only serves to further harm people whose rights have been violated by police.