Since the national reckoning that followed George Floyd’s murder in summer 2020, calls to end the legal doctrine of “qualified immunity” for police officers have increased.
A bill before Vermont’s Senate Judiciary Committee, S.254, would heed those demands, thus making it easier to sue police officers for actions they take while on the job. Yet the legislation has elicited warnings from Burlington’s mayor, Democrat Miro Weinberger, as his city continues a sometimes contentious debate about best policing practices.
A representative of the mayor’s administration, City Attorney Dan Richardson, testified against the bill at a recent judiciary committee hearing.
Richardson critiqued the bill partly for its scope, which he said was overly broad. Instead of just retracting qualified immunity for police officers in situations where they use force, the bill applies to any situation where someone accuses an officer of violating their state constitutional rights.
That expanded liability could result in an officer getting sued for everyday judgment calls, Richardson said, such as a decision to abandon the traffic stop of an intoxicated driver and respond to a domestic disturbance.
If the disturbance turned out to be a false alarm and the driver ended up killing someone, the bill could make the officer liable for that person’s death, Richardson argued.
“In some respects, we give them the right to be wrong, to make that wrong call because they’re balancing these difficult factors,” he told the committee.
Ending qualified immunity for police officers also could be expensive for cities, Richardson said. Since Burlington purchases liability insurance for misconduct-related costs, the city could expect to see premiums increase with the higher degree of legal risk, even if it never has another instance of officer misconduct.
Some proponents of ending qualified immunity see that added expense as a good thing, saying it would encourage police departments to avoid use-of-force cases as much as possible.
Richardson also asserted that ending qualified immunity likely would not have a bearing on whether police officers are disciplined by their department. Damages suits often occur well after a police department’s disciplinary process has concluded, the city attorney said, and police union contracts typically prohibit an officer from being reviewed twice for the same misconduct incident.
Yet language contained in the legislation partially addresses Richardson’s argument. If departments investigate an officer and find they “did not act in good faith and under reasonable belief that (their) action was lawful,” the bill would require municipalities to pay the officer’s court-ordered penalty.
Instead of removing qualified immunity, Richardson pitched two other police reform ideas to the committee: bolstering the license and license removal process of police officers, and making it easier for municipalities to create their own police oversight rules.
Burlington city councilors and Weinberger are in agreement that the city should change its charter to expand citizen oversight of police misconduct cases. The city has a seven-member police commission that reviews misconduct complaints and offers recommendations to the police chief about how to respond to the incidents.
Yet, as on numerous policing-related issues, Weinberger is at odds with the council’s Progressives over how to tackle citizen oversight. While Weinberger maintains that the police chief should have final say on matters of discipline, Progressives say that dynamic eschews true accountability.
The department has seen dozens of officers leave since summer 2020 when the council voted to reduce its police force by 30% (councilors later raised that number). Acting Police Chief Jon Murad and his predecessor, acting Chief Jennifer Morrison, attributed that decline to the council’s police reform efforts.
In the spirit of those reform efforts, council Progressives blocked Weinberger’s attempt to install Murad as the department’s permanent chief late last month. The six-member caucus said they disagreed with Murad’s view that racial disparities found in Burlington’s policing statistics are not necessarily indicative of bias.
The Progressives also expressed concern about allegations that Murad was disrespectful to two members of the city’s Police Commission.
Gov. Phil Scott weighed in on the council and mayor’s disagreement at an unrelated press conference this week, calling the city’s lack of a permanent chief “concerning,” given the “public pressure” on law enforcement.
Scott also said that legislative bodies shouldn’t hamper an executive’s ability to pick their own subordinates.
“I do think a leader — the mayor, or the governor, whoever it is — should be able to surround themselves with the people they want,” Scott said.