This commentary is by Anthony Iarrapino, an attorney in private practice and a board member of the Vermont chapter of the American Civil Liberties Union Foundation, which supports passage of S.254.
In the years since protest erupted nationwide in reaction to police brutality against Black people, I have been horrified by the actions of police officers attacking peaceful protesters calling for racial justice.
It is often said that such things can’t and won’t happen in Vermont. This sentiment ignores the experiences of many Vermonters, especially Black Vermonters, who have dealt with such injustice on a smaller scale for years.
It is long past time to ensure that police officers are accountable to the people they are supposed to protect and serve and to the Constitution they swear an oath to uphold.
A Senate bill, S.254, takes an important step in that direction. The bill would have Vermont follow the lead of Colorado and Connecticut in abolishing the “qualified immunity” defense that frustrates courtroom accountability for police who harm citizens. This judge-created doctrine prevents victims of police violence and discrimination — which can and does happen here in Vermont — from seeking justice and redress in Vermont courts.
Vermont has both a criminal and civil justice system. In the civil courts, those who have had their rights violated can sue for money damages as a further means of holding their abusers accountable and deterring future abuse. The qualified immunity defense used as a shield by rogue police officers and the careless departments that employ them holds these badge-wielding bad actors above the law in our civil court system.
In the last century, the U.S. Supreme Court invented the “qualified immunity” defense, on the theory that few would go into public service, including law enforcement, if they believed they could be sued for on-the-job errors. In practice, however, this judge-created immunity allows some police to trample our constitutional freedoms, knowing that neither they nor their public employers will feel the financial repercussions of their violations.
Unfortunately, Vermont courts have adopted the U.S. Supreme Court’s qualified immunity case law to effectively close the doors of Vermont courtrooms to most citizens harmed by police abuses.
The reasoning behind qualified immunity does not hold water. In fact, there are many in law enforcement, such as the nationwide Law Enforcement Action Partnership, who support the abolition of this unfair defense through passage of S.254 and similar reform at the federal level.
They recognize that removing the qualified immunity roadblock to legitimate lawsuits by victims of police abuse will not hinder their ability to keep themselves and the citizens they protect out of harm’s way. Nor will reforms like S.254 expose responsible law enforcement officials to frivolous lawsuits. Rather, they realize that ending qualified immunity will “make police work easier by helping (law enforcement) rebuild community trust.”
Many types of professionals — from lawyers and doctors to home improvement contractors — can be sued in court if they fail to uphold their professional obligations and cause harm to those whom they are supposed to serve. As a lawyer myself, the risk of lawsuits against me creates extra incentive to do my job carefully and to treat clients with the respect they deserve.
The same should be true for those who exercise the power of the state and carry badges, guns, and all manner of military-grade equipment.
In both Colorado and Connecticut, the laws that ended the qualified immunity defense do not leave law enforcement officers completely on the hook for the damages they cause. Instead, they require the municipalities that employ those officers to pay most of any damages awarded by a court to citizens who have been harmed by unconstitutional exercises of police power.
Vermont’s adoption of a similar provision, as proposed in S.254, would have the added benefit of making sure that our municipal, county and state law enforcement agencies exercise care in the hiring and training process. When a police officer is fired for misconduct by one municipality, any subsequent law enforcement agency that hires the officer does so at its own financial risk.
I respect Vermont law enforcement officers and acknowledge the valuable work most do to keep our communities safe. I know the same is true for the Senate leaders who proposed S.254. Those police officers who respect the rights of the people they serve have nothing to fear from S.254.
The time has come to do a better job of policing our police. Ending the qualified immunity defense that shields and enables abusive police is one of several overdue steps Vermont must take.
