This commentary is by Myers Mermel, of Manchester. He is a Republican candidate for U.S Senate.

Close to two months ago, Act 254 was signed into law. The act called for a study to analyze the ending of qualified immunity for law enforcement officers across Vermont. Based on the construction of the legislation, which I will examine below, Act 254 was drafted to guarantee the study will recommend the termination of qualified immunity. The result of the end of qualified immunity will be the catastrophic defunding of law enforcement statewide, with staff reductions anticipated at levels of 50% or more, far in excess of the 30% losses suffered in Burlington in its 2021 defunding.

Myers Mermel

A little review is necessary. Early in 2022, the Vermont Senate considered multiple approaches to end qualified immunity for law enforcement personnel. Qualified immunity is the legal protection afforded public servants, including law enforcement, which shields them from being held personally liable for constitutional violations. Proponents of ending qualified immunity for law enforcement individuals alone said it was the best way hold law enforcement accountable. Well-reasoned arguments — such as those made by Jessie Baker, president of Vermont League of Cities and Towns — showed that ending qualified immunity would not increase accountability. The Vermont Department of Public Safety even issued a position statement opposing ending qualified immunity and showed that Vermont courts have not allowed qualified immunity to prevent generous settlements for cases of alleged excessive use of force by law enforcement. The Public Safety position paper also pointed out that Vermont’s new use-of-force law passed in October 2021 would cover any instances of potential concern over use of excessive force.

But it has become clear that the real consequence of the end of qualified immunity will not be to hold police accountable but to end state law enforcement agencies. Removal of qualified immunity will subject law enforcement officials to lawsuits, many without merit, which could bankrupt any given officer and his or her family. Since the cost to defend an average lawsuit, even if it is frivolous, can range from $25,000 to $100,000 or more, very few law enforcement officers will understandably subject themselves to such unnecessary risk. According to a March 2021 survey published by the Vermont Association of Chiefs of Police, nearly 50% of officers surveyed said they would quit the force if qualified immunity was ended. A 50% loss of police officers would be a catastrophic defunding, far beyond the 30% staff reductions caused by defunding accomplished in Burlington by its City Council.

On May 23, 2022, Gov. Phil Scott signed Act 254 into law. The revised Act 254 withdrew the action to end qualified immunity immediately and pushed a vote on its ending back to behind the November elections. The new Act 254 had two major parts: The first part required each law enforcement agency in Vermont to maintain records of all final settlements paid to claimants for alleged violations of constitutional rights. The second part broadly called for a legal analysis of the impact of qualified immunity on access to civil justice remedies. While the public believed that the legal analysis would be an opportunity for discussion, it is clear from the act that only one conclusion will be reached.

The “restorative justice” worldview posits that police departments can never be made better or improved because they are structurally corrupt. The only way to reform a structurally corrupt system is to eradicate the system.

While the objective of the legal analysis of qualified immunity seems innocuous on its face, the analysis has a predetermined conclusion or goal. The analysis study itself is only an exercise is how to prove the conclusion is correct. The stated purpose of the analysis is to examine the “impact of the doctrine of qualified immunity on access to civil justice remedies in the State of Vermont.” The purpose of the study is not to look at qualified immunity and its beneficial impact on public safety. No, the analysis, as directed, will examine qualified immunity from the perspective of the offender and how it prevents him or her from gaining “access” to civil justice. The goal, as deconstructed, is to basically see how qualified immunity obstructs or prevents “access” to justice. By using the phrase, “access to civil justice,” the authors behind the act have indicated their worldview. The authors of Act 254 are indicating that the justice system doesn’t dispense justice, justice has to be “accessed,” and the wording chosen implies that justice is not present in the justice system itself. Think about that. The authors are saying that justice is not present in our current justice system. It must be “accessed.” Otherwise, it is ordinarily not available. The justice system, they are saying, is systemically corrupt and will always produce bad outcomes.

The worldview behind the authors of Act 254 is one that sees law enforcement as structurally racist and unreformable. This is the worldview of Restorative Justice, a new discipline which seeks to correct injustice broadly in the justice system. Restorative Justice has recently been mainstreamed by certain law schools, Vermont Law School among them, as an academic discipline. A Restorative Justice advocate writing March 17, 2021, in Restorative Intent, a blog, outlines their view of law enforcement:

The police have regularly lied about their actions, and it is only because their actions have been filmed that the public knows what occurred. The violence manifested by police will not be done away with any time soon because it is structural — for harm to be repaired it will take a reckoning with our cultural history of white supremacy and the violence it has caused to our society and particularly to Indigenous Peoples and African Americans.

This worldview posits that police departments can never be made better or improved because they are structurally corrupt. The only way to reform a structurally corrupt system is to eradicate the system. Only from this viewpoint can one understand that the movement to end qualified immunity is really an effort to end law enforcement. The construction of the Act 254 legal analysis is meant to identify obstacles which prevent “access to civil justice.” The analysis will identify law enforcement as that obstacle. Just to ensure the correct conclusion is reached, the act states that The Center for Justice Reform at Vermont Law School will actually prepare the report for The Office of Legislative Counsel to present to the lawmakers. For the uninitiated, The center was founded by Robert Sand, former Windsor County State’s Attorney and the mentor of Sarah George, Chittenden County State’s Attorney. The report will be delivered and claimed to be impartial; it will be all the political cover necessary for progressive lawmakers to end qualified immunity for law enforcement in Vermont.

The issue of removal of qualified immunity is currently at the state level. Reversal on Act 254 appears unlikely at the state level at this time. However, if supporters of qualified immunity had the resources of the federal government behind them, the move to end qualified immunity could be stopped. If I am elected as Vermont’s next U.S. senator, I will do all in my power to end this dangerous and self-destructive movement. While I won’t discuss the means to do so in advance, I believe there are ample federal avenues to cancel the movement towards ending qualified immunity. Please join me; the very safety of every individual in Vermont is at risk. The passage of Act 254 and its fabricated legal analysis was the final step necessary to end qualified immunity in Vermont after November and to defund law enforcement on a massive scale never before seen in Vermont history.