Cops will leave Vermont if qualified immunity bill passes, Safety Commissioner Schirling warns

By Guy Page

A bill stripping police of protections against civil rights lawsuits isn’t needed and would worsen Vermont’s already critical shortage of law-enforcement workers, Vermont Public Safety Commissioner Michael Schirling told the Senate Judiciary Committee on March 9.

town of Shelburne

Supporters of S.254 — including the ACLU, racial justice groups, and sponsors including Sens. Becca Balint and Kesha Ram-Hinsdale — say police unfairly target minorities and others and that their ‘victims’ should be allowed to file civil rights suits.

Supporters of S.254 — including the ACLU, racial justice groups, and sponsors including Sens. Becca Balint and Kesha Ram-Hinsdale — say police unfairly target minorities and others and that their ‘victims’ should be allowed to file civil rights suits.

At present state law gives ‘qualified immunity’ against lawsuits to all state and local employees — including legislators and other elected officials. Schirling opposes both the bill as introduced and an attempted ‘compromise’ draft introduced this week.

The following objections to S.254 are excerpted from Schirling’s testimony, which also includes alternatives to denying qualified immunity:

DPS opposes any legislation that singles out law enforcement officers to strip them of the same legal protections afforded other public officials.

Both S.254, as introduced, and Draft 2.1-S.254 would deprive law enforcement officers, and only law enforcement officers, of the defense of qualified immunity. Other government officials would continue to perform their governmental functions with the safeguard afforded by qualified immunity. By singling out law enforcement officers, S.254 feeds anti-police sentiment, sends the message to Vermont’s Judiciary that it is not applying the doctrine of qualified immunity fairly in cases involving law enforcement officers, and abdicates the Legislature’s responsibility to work with law enforcement and our communities to improve public safety.

1. Vermonters have not been denied just compensation for harm caused by law enforcement officers because of the doctrine of qualified immunity. Vermont state government and local towns paid out more than a quarter of million dollars between 2004 and 2014 for alleged Taser misuse. The City of Burlington paid the Estate of Wayne Brunette $270,000 in 2019, and the Estate of Douglas Kilburn $45,000 in 2021; the town of Hartford paid $500,000 to Wayne Burwell for alleged unreasonable force in 2017.

Since 2016, Vermont League of Cities and Towns – which operates a municipal property and casualty fund that insures most of Vermont’s municipalities and their law enforcement organizations – has paid out more than $1.7 million in law enforcement-related damages and settlements.

2. Vermont courts are not applying the doctrine of qualified immunity unfairly or with egregious results. The Second Circuit, the federal court of appeals that has jurisdiction over Vermont cases, has denied qualified immunity in eight out of the 10 most recently reported cases alleging excessive force by law enforcement officers. In the eight cases where the Vermont Supreme Court was asked to apply the doctrine of qualified immunity, the Vermont Supreme Court denied qualified immunity in three cases and allowed qualified immunity in five cases.

3. The defense of qualified immunity does not disproportionately impact Vermonters by race. The doctrine of qualified immunity was not a bar to the recovery of damages to Wayne Burwell ($500,000) or Obediah Jacobs ($50,000) or Gregory Zullo ($50,000). And just last month, district court Judge William Sessions ruled that a pair of civil rights lawsuits brought by Jérémie Meli and Mabior Jok against Burlington police officers can proceed to trial.

4. The Vermont General Assembly just passed a sweeping use of force law that should be given a chance to work. In October 2021, Vermont’s new, use of force law went into effect. In addition, every Vermont law enforcement agency has adopted a new, statewide use of force policy. Those reforms should be given an opportunity to show results before giving up on real reform and accountability that will benefit all Vermonters.

5. Singling out law enforcement officers for disparate treatment will further exacerbate the current crisis in public safety. Many law enforcement agencies are at their lowest staffing levels in history. Some agencies are on the precipice of closure. The State Police has seen three times more departures than hires in 2021 – an unsustainable attrition rate.

S.254 will make it more difficult to attract and retain police officers, which will ultimately compromise public safety. S.254 demonizes all law enforcement officers. The proposed bill feeds into and fuels anti-police sentiment that has taken root nationally in our country.

By targeting law enforcement officers, the bill sends the message that law enforcement officers and the work they do are somehow less important and less deserving of protection than other government officials or other government work. This is a demeaning and demoralizing message that will likely drive out of the profession altogether those who are in the profession nobly to serve their communities.

6. S.254 is fiscally irresponsible. This bill will cause money that could be spent on improved training and robust innovation to be invested instead in insurance premiums, attorney’s fees, and litigation costs with taxpayers footing the bill.

Guy Page is publisher of the Vermont Daily Chronicle. Reprinted with permission.

Image courtesy of town of Shelburne
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8 thoughts on “Cops will leave Vermont if qualified immunity bill passes, Safety Commissioner Schirling warns

  1. Supporters of S.254, by the list of names, these justice warriors, again just looking for
    attention for their self-proclaimed issue ” target minorities “……….. give me a break !!

    From what I have seen, all the trash that is stopped by the police, deserve what they get,
    this trash from the cities like MA, CT, NJ, NY come to VT to sell their goods yes, we all see
    it and know it, those that stand to lose the most, cause the most problems, and proceed to
    accelerate the altercations with law enforcement…… yes, we do have laws break them and
    you get what you deserve………………..

    If this boondoggle S.254 get passed, then every elected official should be held accountable
    and ” NO ” qualified immunity either, for those that don’t follow our laws and issues arise from
    there bad judgment on a policy that affects the citizens well being, they also need to be held accountable !!

    Anti-Police sponsors like Sens. Becca Balint and Kesha Ram-Hinsdale need to be held
    accountable for there agenda driven nonsense, wake up VT ………………………..

  2. A double whammy:

    Re: “At present state law gives ‘qualified immunity’ against lawsuits to all state and local employees — including legislators and other elected officials.”

    The following observation is offered as food for thought… nothing more.

    First, a little history. The evolution of qualified immunity began in 1871 when Congress adopted 42 U.S.C. §1983, which makes government employees and officials personally liable for money damages if they violate a person’s federal constitutional rights. State and local police officers may be sued under §1983. Until the 1960s, few §1983 lawsuits were successfully brought. In 1967, the Supreme Court recognized qualified immunity as a defense to §1983 claims. In 1982, the Supreme Court adopted the current test for the doctrine. Qualified immunity is generally available if the law a government official violated isn’t “clearly established.” ‘Qualified Immunity’ was created by the SCOTUS as an act of judicial policymaking. Harlow v. Fitzgerald (1982).

    Second, keep in mind that this legal position affects all ‘government employees and officials”, not just the police.

    So, while the legislature, with one hand, is expanding the definition of what constitutes a criminal threat to ‘public employees’ through S265, it’s arguing against the removal of the ‘qualified immunity’ policy that prevents citizens from holding them accountable for damages they cause.

    And the argument has all of the typical hallmarks, what I’ve always called an ‘Armageddon Response’.

    “Cops will leave Vermont if qualified immunity bill passes…”

    Citizens are caught between the proverbial rock and a hard place. If they hold public officials accountable, not only might they leave for greener pastures (as many Vermont taxpayers are doing), but they may stop enforcing the law to protest the new accountability, as they have when the defunding threat is levied on them.

    In my opinion, both bills, S265 and S254, are designed to strengthen the power of government over ‘we the people’. Our Constitutional rights of equal protection (14th Amendment) and self-defense (2nd Amendment) are being whittled away, not slowly, but certainly.

    With all due respect to Guy’s logic, S265 and S254 are the face of tyranny.

    1. Removing qualified immunity (QI) doesn’t ‘[single] out law enforcement officers for disparate treatment’, keeping the policy is an afront to our constitutionally guaranteed ‘equal protection’.
    2. QI doesn’t prevent spending ‘… on improved training and robust innovation’. But it does remove the need to do so.
    3. It doesn’t matter what ‘sweeping use of force law’ the legislature passed – when government officials have immunity from breaching those policies.
    4. And the claim ‘… that Vermont courts are not applying the doctrine of qualified immunity unfairly’ is the classic false dichotomy. The problem isn’t with the court’s application of the law. The problem is with the power these laws give government over citizens in the first place.

    Mr. Lizotte (IMHO) is right. “No immunity for anyone in government, and that includes all branches, from bottom to top.” In fact, no immunity for anyone.

    • Post script:

      It occurs to me that the logic expressed in Guy’s article may not be his sentiments but those only of Safety Commissioner Schirling and the State legislators proposing these bills. If that’s the case, Guy, please accept my apology for ascribing the notion to you.

  3. No immunity for anyone in government, and that includes all branches, from bottom to top.We needn’t worry about downsizing police statewide. This is mostly a rural state and police are most needed in Chittenden County.

  4. Any proposal to lift qualified immunity for police ought to apply as well to individual members of the legislature, for they are much more dangerous than any police officers in the potential for inflicting harm on the public by virtue of their legal authority. Balint and Ram-Hinsdale have benefited well from the victimhood/grievance industry in their political careers since many Vermont liberal voters are easily swept off their feet by their specific “attributes”.

  5. The VT police do not unfairly target anyone. Bring attention to yourself by doing something illegal and, guess what? The bill leaves out the people who should be open to being sued and that is prosecutors who knowingly hide exculpatory evidence. This is a bill looking for a problem.

    • You are apparently unaware of what was buried in the bill Congress just passed. I do not want the ATF deputizing local LE to enforce federal gun laws in Vermont.

      I don’t care how many leave for greener pastures if their QI is removed. Goodbye and good riddance.

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