Connecticut legislative task force is finding solutions to problems in policing that do not exist

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This is the third article in a series on proposed legislation in the state of Connecticut under the guise of “law enforcement reform,” as proposed by the Accountability and Transparency Task Force.

As a basis, we are utilizing comments made by Attorney Elliott Spector, Esq., one of the foremost experts on police misconduct in Connecticut. He has represented hundreds of officers in alleged misconduct cases, and is responsible for creating the now POST required liability training in the state, having trained over 30,000 officers. He knows that of which he speaks.

The task force has made numerous recommendations for proposed areas of criminal justice reform, and we will address each one using recommendations from Atty. Spector, as well as our own comments.

You can see the most recent one here.

QUALIFIED IMMUNITY  

This is the favorite target of the left, who have a total misunderstanding of the concept. They would have people believe that there is a “special immunity for police,” which it is alleged makes them immune to liability.

They claim that even when officers commit so-called egregious acts, they are somehow insulated from being held civilly liable. The claim is that police are allowed to assault and brutalize innocent citizens with no repercussions.

This is factually incorrect.

“On June 24, 2020, the Connecticut Supreme Court maintained immunity for officers who make discretionary decisions leading to lawsuits in Borelli v. Renaldi. The Court reiterated the well-established law that municipal employees are liable for the misperformance of ministerial duties to be performed in a proscribed manner but have qualified immunity for acts, which require the exercise of judgment.”  

What is interesting, Spector notes, is that while politicians speak about qualified immunity for police officers and the desire to eliminate it, they themselves are also entitled to qualified immunity.

So apparently, this is “good for me and not for thee.”

As Spector identifies, the United States Supreme Court during this term denied certiorari in six qualified immunity cases having to do with 42 USC §1983 actions. Governmental immunity in Borelli and qualified immunity for § 1983 actions are different, however serve the same purposes, he says.

The Connecticut Supreme Court said that, “Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society…”

As Spector rightly observes, society needs to allow public officials to perform discretionary duties “unhampered by fear of second guessing and retaliatory lawsuits.” It was for that very reason that the United States Supreme Court invoked qualified immunity for § 1983 lawsuits.

In simple terms, qualified immunity permits and encourages public officials to perform duties “without fear of unwarranted lawsuits and allow them to perform their duties instead of spending time and resources defending such claims.”

The current focus in the Connecticut state legislature, as well as other state legislatures is to look at alleged excessive force by police officers. Legislators and advocates of gutting qualified immunity ignore an important fact.

Dismissing a case under the doctrine is difficult, because all a plaintiff needs to show is that the force used was unreasonable. Unwarranted lawsuits are eliminated under this prong.

The second prong allows immunity if there is no clearly established law that would have informed officers under similar circumstances that the use of force was unreasonable. Spector says there is numerous precedent in cases decided by either the Supreme Court or Circuit Courts which created commonality, thereby creating clearly established case law.

It is rare that an officer can escape liability because his use of force is unique under those specific circumstances.

Currently, most states have indemnification statutes for government employees. Individual police officers would not pay for judgments or litigation, taxpayers do. The only current circumstances where qualified immunity does not stand is in the case of egregious conduct, so it is a moot point to do away with qualified immunity under all circumstances. Egregious conduct is already outside the scope of the standard.

As Spector notes, a review of alleged excessive force cases tend to have a common denominator. The plaintiff violates the law, the police officer responds, the plaintiff refuses to comply, either resisting, threatening or assaulting the officer, which leads to the officer’s use of force.

The very benefactors of eliminating qualified immunity will be those who violate the law in the first place, and then, through their resistance or lack of cooperation, cause the officer to use what they call excessive force. It is by their own actions that officers typically commit these alleged violations.

ENSURING EACH OFFICER COMMITS TO 500 HOURS OF COMMUNITY ENGAGEMENT ACTIVITIES WITHIN CONNECTICUT’S MAJOR URBAN CENTERS PRIOR TO RECEIVING INITIAL OFFICER CERTIFICATION

While Spector finds this proposal worthwhile, asking officers to spend an additional 10-1/2 weeks in “training” plus six months of police academy and months of field training, you are looking at approximately one year from the time an officer is hired until he is a solo capacity officer. This initiative would be extremely cost prohibitive, especially for smaller communities.

Perhaps a shorter period of time might make some sense, but 500 hours is excessive.

The suggestion that state legislators, as well as other government officials who make decisions about police, should have to participate in a ride-along with police officers in the major cities such as Hartford, New Haven, Bridgeport and Waterbury is an excellent idea.

Perhaps then they could see what officers have to face day in and day out and the split-second decisions officers must make.

DEVELOP AN INDEPENDENT EXTERNAL INVESTIGATIVE AUTHORITY * REFORM CITIZEN COMPLAINT PROCESS * MANDATE COMMUNITY OVERSIGHT * REFORM CITIZEN COMPLAINT PROCESS * IDENTIFY STATE LABOR ISSUES THAT PREVENT POLICE ADMINISTRATORS FROM EASILY REMOVING UNFIT OFFICERS:

This is nothing less than an allegation that disciplinary processes within Connecticut police departments are inadequate, as well as subsequent appeals to the State Labor Board. Major incidents, such as officer involved shootings and use of force investigations are already carried out by State Attorneys. Other incidents of police misconduct also fall under their purview.

As Atty. Spector says, numerous such complaints against officers are false, or lack merit. Publishing unfounded defamatory complaints against officers serves no purpose or interest other than to embarrass the officers and/or police department. Utilizing an outside agency to investigate disciplinary complaints may be cost prohibitive.

Is there evidence of a serious failure to investigate and discipline officers in any particular department? Is it necessary to handcuff and hamper every department in the state because a few may be lax in conducting internal investigations?

Spector notes that for many years, plaintiff counsel have alleged failure to discipline against numerous police departments. It should be noted that qualified immunity does not exist for such claims.

None of these complaints prevailed and a vast majority lacked sufficient merit to survive summary judgment. Specific departments that fail to properly investigate or administer disciplinary matters should be handled in a more direct, simpler and cost effective way, Spector suggests.

Again, police chiefs are responsible for controlling officer misconduct, how internal investigations within their departments are conducted, and they ultimately decide what type and severity of discipline will be imposed.

If a police chief is either covering up misconduct, or is letting a rogue officer or two run unabated, this might be a case where a State Attorney could get involved and if a failure is found perhaps some type of apparatus can be implemented to hold chiefs accountable.

Spector notes that he has been on both sides of arbitration cases at the State Board of Mediation and Arbitration and he said his findings are that the board fairly considers evidence presented and renders balanced decisions.

In cases where officer terminations were overturned, it should be relatively easy to review such cases since they contain evidence and the rationale for any such decisions. Using judicial review for investigating such decisions seems to be a bit of overkill, and as Atty. Spector notes, cost prohibitive.

The Task Force’s suggestion for reforms suggests that police are not held accountable for misconduct, which is simply not true. As Spector notes, officers are subjected to more scrutiny and punishment than any other profession. If an officer lies or commits any other type or act of dishonesty, they will most certainly lose their career.  

Look at when an officer responds to a dangerous call. They risk their lives to protect others, and if they are compelled to use deadly force that is lawful, justifiable and unavoidable, they are placed on administrative leave, where they are prevented from doing their jobs, working overtime, or extra duty jobs.

Many times they are subject to criminal investigations where there isn’t a shred of evidence to create doubt as to the reasonableness of their actions. Police officers work in a veritable fishbowl where every action they take is subject to 20/20 hindsight from people who have hours to analyze the actions an officer had a split-second to take.

Spector gives an excellent example of the remedies available in the event officers have committed acts of misconduct.

Scenario: Officer A. uses excessive force, and Officer B. fails to intervene, while Officer C. who is not in a position to intervene fails to report the use of force.

  • All 3 are subject to discipline up to and including termination.
  • All 3 may be subjected to state tort claims.
  • All 3 may be subjected to liability for federal claims.
  • If they are found liable for punitive damages, they will not be indemnified.
  • Officer A. may be subjected to state prosecution for assault.
  • All may be subjected to federal prosecution; Officer A. for excessive force, Officer B., for failure to intervene, and Officer C. for obstruction of justice.

Every single one of the above remedies have been imposed on officers in Connecticut at one time or another. Every one. Clearly if the Task Force reviews cases in the state they should sleep soundly knowing that officers in the state are clearly being held accountable.

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MANDATORY REPORTING OF OFFICERS WHEN THEY WITNESS MISCONDUCT AND DUTY TO INTERVENE WHEN THEY SEE WRONGDOING WITH CRIMINAL PENALTIES IF THEY FAIL TO DO SO:

In 1983, all police officer recruits in Connecticut started receiving special misconduct/liability training, which emphasized a duty to intervene. Officers were instructed that they have a duty to intervene whenever they notice that another officer is, or is about to violate a person’s civil rights. This duty applied to excessive force, searches, arrests, investigative stops or any potential constitutional violation.

This also applied if they witnessed senior officers, supervisors, officers from other departments, and even federal agents committing any of the above. They were told that if they failed to intervene they could be disciplined, and sued under 1983 violations of federal law and arrested under 18 USC §§ 241 or 242. They were also provided with case examples from Connecticut where such sanctions were imposed against officers.

That training stopped in 2011, and we agree with Atty. Spector that this should be reinstituted. Why then do additional measures need to be put in place, when there are more than enough already in place to deal with any perceived or actual issues?

The Task Force needs to identify issues in Connecticut when people suffered some type of harm because officers failed to intervene under current legal standards.

CHANGING POLICE FROM A “WARRIOR” TO A “GUARDIAN” CULTURE

This implies that police in Connecticut operate under a “warrior” mentality.

The majority of police work has been service oriented and the importance of ensuring good community relations has always been stressed. In the mid 90’s under President Bill Clinton, there was a push to put additional police on the streets, and this resulted in an emphasis on community policing and school resource officer programs.

Unfortunately, especially in the case of community policing a lot of that has gone by the wayside, thanks in no small part due to the contentious narrative pushed by the mainstream media and politicians who have chosen to make police the bad guys.

All you have to see is the push nationwide to remove police from schools and that should give an indication the contempt in which police are held.

Police have always maintained a guardian mentality and that is obvious by the number of police agencies, a number in the state of Connecticut, who do tremendous community outreach programs, such as Toys for Tots, Special Olympics, Make a Wish and so on.

If there is a “warrior culture” in Connecticut, the Task Force needs to produce evidence of that. We believe that no such evidence exists, or at least not to the level that requires any type of sea change in how policing is conducted. The guardian culture is taught in all recruit classes, and a majority of review training.

A vast majority of police officers went into that career to help people. The task force needs to understand that by nature of our jobs, police officers are sometimes required to use force and/or show authority. It is simply a fact of life.

PUBLICALLY ADDRESS THE ROLE OF POLICING IN PAST INJUSTICES:

Police were put in the position of having to enforce discriminatory Jim Crow laws. These laws, created by legislators and reviewed by the courts, put police in a bad position. While officers have the authority to act alone using discretion, “enforcement of most of such laws involved officers acting under orders pursuant to legislative mandates affirmed by judicial decisions.”

Jim Crow laws were rare in Connecticut and it is unlikely that any currently employed police officers implemented any enforcement actions under those laws. However, a component of their history should be rightly included in recruit training.

In 2016, IACP President Terrence Cunningham “acknowledged and apologized for actions of the past and the role that our profession played in society’s historical mistreatment of communities of color.”

He said:

“At the same time, those who denounce the police must also acknowledge that today’s officers are not to blame for the injustices of the past. If either side in this debate fails to acknowledge these fundamental truths, we will be unlikely to move past them.”

 The present attack on police officers is reminiscent of previous attacks of people based on race, affiliation, religion, etc. This is the same as other groups who had been accused of so-called “fabricated personality defects and misconduct.”

As George Washington succinctly noted:

“When one side only of a story is heard and often repeated, the human mind becomes impressed with it insensibly.”

Under the current atmosphere of anti-police sentiment, an incident that happened a thousand miles away in Minneapolis, Minnesota has suddenly transformed into a narrative that police in Connecticut engage in widespread racism, police brutality and illegal use of deadly force. That is simply not borne out by facts.

The Task Force as well as Connecticut politicians of all political stripes need to discover what the facts are in Connecticut…not Minnesota, or California or anywhere else. By condemning officers in Connecticut for the acts of others far removed, they are doing a disservice to those who are serving in that state.

The fourth article in this series will be published later this week.

 

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