Windham County won’t have sheriff coverage if cops lose immunity

By Guy Page

Windham County Sheriff Mark Anderson said Wednesday that if police are stripped of current legal protections against civil rights lawsuits, he will stop providing law enforcement services for 14 towns in his county.

As introduced by Sen. Kesha Ram (D/P – Chittenden) and others, including Windham County Sen. Becca Balint, S.254 would take from police officers the ‘qualified immunity,’ now enjoyed by all state and local employees, against punitive lawsuits filed by people unhappy with how they performed their duties. The stated intent of the law is to provide Vermonters with stronger legal remedies against police who violate their civil rights.

The version passed by the Senate maintains the current level of qualified immunity protection for police, but also commissions a study on how it might be revoked. It also requires police departments to keep public records of judgements and settlements of claims paid out for lawsuits.

At left, Windham County Sheriff Mark Anderson. At right, a book by Ben & Jerry’s founder Ben Cohen supporting removing qualified immunity for police.

In House Judiciary Committee hearings this week, S.254 also came under fire from Steve Howard, Executive Director of the Vermont State Employees’ Association. The VSEA represents about 110 state law enforcement officers, including Vermont State Police officers not represented by the troopers’ union.

“State employees feel they should feel as though they should have the backing and support necessary to do the work that the laws passed in this building require them to do,” Howard said. “These employees deserve to know that so long as they are following the guidance of the training they receive from the state on the manner in which they’re supposed to perform their jobs, they will be protected.”

The federal courts already protect the civil rights of Vermonters alleging violations by police. Of 10 civil rights lawsuits brought against cops in federal courts in Vermont, qualified immunity has been waived eight times, Howard said.

House Judiciary has not voted yet on S254. Kicking around State House committee rooms is a book by Ben & Jerry’s co-founder Ben Cohen called “Above The Law: How ‘Qualified Immunity Protects Violent Police.” The cover shows a cop aiming his sidearm. The back cover describes qualified immunity as “a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights.”

For Windham County Sheriff Anderson – who is also president of the VT Sheriffs’ Association and a Brattleboro native and career Windham County cop who graduated from high school on a Friday and was enrolled in the Vermont Police Academy the next Monday – revoking qualified would leave him no choice but to terminate law enforcement contracts with the 14 small Windham County towns his department now serves.

“If S.254 passes as introduced, I will be eliminating the contracts the Windham County Sheriff’s Dept. holds for law enforcement,” Anderson told Vermont Daily Chronicle during a visit to the State House Wednesday. Vermont sheriffs are legally obligated to provide services such as transportation and serving legal papers. They are not required by statute to offer municipal law enforcement. If Windham County deputy sheriffs are no longer on the job, the entire burden will fall to the Vermont State Police, who are already understaffed.

The VSP takes a lead role on patrolling I-91 corridor north from the Massachusetts state line – a favorite corridor of fentanyl and heroin smugglers. Adding the responsibility of covering the backroads of Townshend and many other rural communities would reduce VSP coverage of the freeway, thus making Vermont even less risky for drug smuggling hubs in Springfield, MA and Hartford, CT.

To illustrate what losing qualified immunity would mean to police, Anderson talks about an incident that happened to him years ago when he was a rookie Windham County Sheriff’s Deputy.

“I stopped a person who was in possession of marijuana, when it was illegal. I detected the odor of it.” The suspect “provided me with a rolled up paper towel. I opened said paper towel.”

“Under this bill, this would be a violation of his rights against search and seizure,” Anderson said. “At the time I didn’t know it was a container. Under this bill he would have a right to sue me, because I had opened a container – a paper towel.”

As introduced, S.254 would allow damages of up to $25,000. Most young police officers don’t have that much money in the bank. “We’re talking about taking away their house,” he said.

Indemnifying officers for this amount adds significantly to department costs, and could tempt departments to declare ‘bad faith’ by the officer, thus leaving him/her without departmental protection.

The Legislature and other state employees would maintain immunity from civil rights lawsuits.

Also, the drastic step of removing qualified immunity is unnecessary because the law enforcement community has been busily incorporating many recent legal statutes aimed at reducing police misconduct and protecting the civil rights of all Vermonters.

“We have a lot of new or young initiatives that the GA has created in the last five years, that are just growing into their full potential,” Anderson said. “We need to trust that these initiatives are well thought out.”

As Howard noted, courts already are willing to waive the ‘qualified immunity’ argument if justified. Furthermore, cops have been decertified for misbehavior.

Anderson said that even though losing qualified immunity looms in the near future of Vermont law enforcement, recruits are still signing up to become Vermont police officers. He explained their willingness in one word: “courage.”

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

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12 thoughts on “Windham County won’t have sheriff coverage if cops lose immunity

  1. People need to walk a mile in law enforcements shoes before they shoot their mouths off on a subject that they have no experience in.

    • Richard, we’re not talking about enforcing the law, but whether or not the sheriff should be accountable for his law enforcement methods. ‘Immunity’, qualified or otherwise, at least implies a double standard. Would, for example, the sheriff be accountable for damages or harm that might occur when he refuses to enforce the law in a given town with which he has a contract? What would the extent of that accountability be? To threaten to not abide by a contract by refusing to enforce the law smacks of extortion.

      There are many unknowns in this discussion, to be sure. What are the terms of the existing contracts? Are there escape clauses or other limitations? This is why I asked the sheriff to comment further.

      In the meantime, everyone should read up on what qualified immunity is.

      https://www.law.cornell.edu/wex/qualified_immunity

        • It has nothing to do with the term ‘qualified’, and everything to do with honoring the oath of office and the contracts the sheriff has to provide law enforcement services.

          If the sherrif doesn’t like the obligations of his office, he should find something else to do, instead of threatening the towns to withhold enforcement services to suit himself and his deputies.

          What’s the big deal with ‘immunity’ anyway? The sheriff, apparently, won’t explain himself. Can you explain why immunity is so important?

    • If we applied your standard to discussions regarding the military, then 97% of people would have to remain silent. Thankfully we live in a Constitutional Republic, and every legal citizen has the opportunity to weigh in with their opinion – especially when it concerns positions paid for with their tax dollars.

  2. that sounds like a resignation to me

    their qualified immunity is our sovereign immunity we delegate to them

    how easy we forget all laws are by consent

    V. That all power being originally inherent in, and consequently, derived from, the people; therefore, all officers of government, whether legislative or executive, are their trustees and servants. and at all times accountable to them.

  3. “The Legislature and other state employees would maintain immunity from civil rights lawsuits.”
    That says a lot… Sounds like another defund the police scheme.

    The VT gubment does what it wants to discriminate and uses the full force of the state coffers to defend its actions or better yet they make a law that makes it OK for their behavior and if you fight back, they pass even more laws calling you a criminal for protesting. Unless you are BLM or its ilk. Talk about doing for “we the people” not “we the gubment” I see lots of games in this one.

  4. Other public-sector employees paid for by Vermont taxpayer money enjoy generous benefits when it comes to pensions, paid leave, and having either government or your union go to bat for you in any kind of dispute. To threaten removing qualified immunity only to law enforcement is a slap in the face to these dedicated public servants who swear an oath to uphold the Constitution. Most of us regular folk dont have to swear an oath to take a job and receive a paycheck. People collecting all forms of non-entitlement public assistance dont have to swear an oath to receive their free booty. This threatened retribution is based on events that didn’t even take place around here and is part of an over-the-top race hysteria promoted by irrational leftists. Has the marked increase in crime not making people realize that treating police as villains has real consequences toward public safety?

    • You state that, “Most of us regular folk don’t have to swear an oath to take a job and receive a paycheck.” It could be added that most of us regular folk don’t have to swear on oath to uphold the Constitution because we just do it out of sense of loyalty. The problem is that when we “regular folk” take action to defend our constitutional rights, those that swear an oath to defend them seem to violate that oath and treat us as criminals. That’s very sad testimony to the current state of affairs.

  5. There are several false dichotomies in the Sheriff’s argument. For example, S254 doesn’t prohibit the Sheriff’s department from paying the legal expenses of its officers. And the ‘paper towel’ logic is a classic strawman fallacy. There are several circumstances defining ‘reasonable cause’ and ‘probable cause’ not included in the discussion. Here’s another example.

    Re: “Most of us regular folk dont have to swear an oath to take a job and receive a paycheck.”

    While most of we ‘regular folks’ don’t ‘swear an oath’ (in this technical sense) when we take a job, do we not at least agree to abide by the rule of law? The job applications I submit to my employees, for example, asks them to declare various personal guarantees with regard to their standing under various rules of law.

    I’m a law-and-order guy from the get go. But, IMHO, ‘qualified immunity’ is yet another of those legal perspectives awash in a vagueness destined to be abused by anyone working for a ‘public entity’, with authority over another person.

    As an employer, I don’t have ‘qualified immunity’. And I suspect most readers here haven’t read the various court rulings on the subject. They should.

    Did the Windham County Sherriff actually threaten the public by exercising the authority the public conferred on the Sherriff in the first place?

    Clearly, the Windham County Sherrif should resign if he disagrees with whatever the rule of law requires. But to threaten the public by refusing to enforce the very law the Sherrif took an oath to protect and defend, indicates to me that this Sheriff may very well be the kind of person who will abuse ‘qualified immunity’.

    I’d like to hear the Sherriff’s perspective in this regard.

    • I agree with Mr. Eshelman – this Sheriff has only one honorable choice, and that is to resign. When any public official decides they can not or will not meet the standards that put them in their position, they should leave voluntarily.

      Hopefully the County has a high bailiff who could arrest the Sheriff should he follow through on his threat.

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