HARTFORD, Conn. (Aug. 10, 2020) – A Connecticut police reform bill signed into law last month will limit federal militarization of police and takes a step toward ending qualified immunity for law enforcement officers.
A coalition of four Democrats introduced House Bill 6004 (HB6004) on July 23. Titled An Act Concerning Police Accountability, the 71-page bill made numerous changes to policies applying to state and local police officers. Among the changes, the new law put limits on the militarization of police. It also creates a process to sue police officers in state court for using excessive force or taking other actions that violate individual rights that could potentially limit a “qualified immunity” defense.
Under the new law, police departments are prohibited from acquiring ” controlled equipment” going forward. This includes:
(A) A controlled firearm, ammunition, bayonet, grenade launcher, grenade, including stun and flash-bang, or an explosive
(B) A controlled vehicle, highly mobile multi-wheeled vehicle, mine-resistant ambush-protected vehicle, truck, dump truck utility or truck carryal
(C) A drone that is armored or weaponized
(D) controlled aircraft that is combat configured or combat coded or has no established commercial flight application (E) A silencer
(F) A long-range acoustic device
(G) An item in the federal supply class of banned items
Police departments will be required to report any “controlled equipment” it possesses to the legislature. The law empowers the governor and the commissioner of emergency services to order a law enforcement agency to dispose of any controlled equipment it owns.
The ordinance applies to equipment acquired through both the well-known 1033 program, along with any other military surplus program operated by the federal government.
Federal Surplus and Grant Money
Through the federal 1033 Program, local police departments procure military-grade weapons. Police can also get military equipment through the Department of Homeland Security via the (DHS) “Homeland Security Grant Program.” The DHS doles out over $1 billion in counterterrorism funds to state and local police each year. According to a 2012 Senate report, this money has been used to purchase tactical vehicles, drones, and even tanks with little obvious benefit to public safety. And, according to ProPublica, “In 1994, the Justice Department and the Pentagon-funded a five-year program to adapt military security and surveillance technology for local police departments that they would otherwise not be able to afford.”
In August 2017, President Trump issued an executive order that gave a push to local police militarization. Trump’s action rescinded an Obama-era policy meant to provide greater transparency and oversight around the Department of Defense 1033 program and other federal resources that provide military weapons to local police.
The new law limits participation in federal police militarization programs.
Command and Control
Arming ‘peace officers’ like they’re ready to occupy an enemy city is totally contrary to the society envisioned by the founders. They’ve turned ‘protect and serve’ into ‘command and control.’
In the 1980s, the federal government began arming, funding and training local police forces, turning peace officers into soldiers to fight in its unconstitutional “War on Drugs.” The militarization went into hyper-drive after 9/11 when a second front opened up – the “War on Terror.”
By making it more difficult for local police to get this military-grade gear and surveillance technology, and ensuring they can’t do it in secret, it makes them less likely to cooperate with the feds and removes incentives for partnerships. Enactment of the law takes a first step toward limiting police militarization in Connecticut.
HB6004 also creates a legal pathway that could curb the use of qualified immunity as a defense for police officers. The new law establishes a cause of action that will allow people to sue police officers who violate rights enshrined in the Connecticut Constitution’s Declaration of Rights.
But as Reason points out, the law has a pretty significant loophole. The law grants police officers “governmental immunity” if they “had an objectively good faith belief that [their] conduct did not violate the law.” Without clearly defining either “objectively” or “good faith belief.” This could allow state courts to establish a qualified immunity doctrine similar to the one created by federal courts. How this plays out in practice will depend on state courts.
Typically, people sue police for using excessive force or other types of misconduct through the federal court system under the U.S. Bill of Rights. But federal courts created a qualified immunity defense out of thin air, making it nearly impossible to hold law enforcement officers responsible for actions taken in the line of duty. In order to move ahead with a suit, the plaintiff must establish that it was “clearly established” that the officer’s action was unconstitutional. The “clearly established” test erects an almost insurmountable hurdle to those trying to prove excessive force or a violation of their rights.
HB6004 creates at least an opportunity to create an alternative path in state court with no qualified immunity hurdle to clear.
Colorado recently enacted a law that more definitely eliminates qualified immunity as a defense.
It remains unclear how the state legal process will play out in practice.
The first question is whether people will actually utilize the state courts instead of the federal process. Under the original constitutional system, it would have never been a federal issue to begin with. Regulation of police powers was clearly delegated to the states, not the federal government. But with the advent of the incorporation doctrine, people reflexively run to federal courts. But by removing the qualified immunity hurdle, it should incentivize people to take advantage of the state system.
The second question is if police officers will be able to have cases removed to federal jurisdiction in order to take advantage of qualified immunity.
State and local law enforcement officers working on joint state/federal task forces will almost certainly will. They are effectively treated as federal agents.
For New York law enforcement officers not operating with a federal task force, it seems unlikely they will be able to remove the case to federal court initially, but that door could open on appeal.
One attorney I talked to said that it might be possible for officers to have their case removed to federal court to consider U.S. constitutional ramifications. But he said even then, he thinks federal courts would have to respect the state law prohibiting qualified immunity as a defense. The federal court would likely have to apply the state law as the state intended, even though the federal court might well be able to decide whether or not a U.S. constitutional violation had taken place.
But it is possible that the federal court could simply decide its jurisdiction supersedes state law and hear the case under the federal process, including the application of qualified immunity. Only time will tell how the process will play out in practice. Regardless, the state process will make it more difficult for police to simply side-step civil suits by declaring sovereign immunity up front.
The Supreme Court shows no interest in rolling back its qualified immunity doctrine. In fact, the High Court recently rejected several cases that would have allowed it to revisit the issue. For instance, the SCOTUS let stand an Eleventh Circuit decision granting immunity to a police officer who shot a ten-year-old child in the back of the knee, while repeatedly attempting to shoot a pet dog that wasn’t threatening anyone.
Congress could prohibit qualified immunity. A bill sponsored by Rep. Justin Amash (L-Mich.) and Ayanna Pressley (D-Mass.) would do just that. But it’s a long-shot to pass. Congress does not have a good track recorded on reining in government power.
The best path forward is to bypass the federal system as Colorado has already done and New York is considering.
Other states should follow their lead and create state processes to hold their police officers accountable. With the evolution of qualified immunity, the federal process is an abject failure. As Supreme Court Justice Byron White wrote in the 1986 case Malley v. Briggs, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Reuters called it “a highly effective shield in thousands of lawsuits seeking to hold cops accountable for using excessive force.”
Attorney and activist Dave Roland called on Missouri to adopt a similar process in an op-ed published by the St. Louis Post-Dispatch.
A consensus has developed — crossing all party and ideological lines — for the proposition that qualified immunity is an evil that should be undone. At the federal level either the Supreme Court or Congress could undo it, but thus far neither has seen fit to act. Justice in Missouri, however, does not need to wait on Washington — the Legislature can and should adopt a Missouri statute that allows citizens to sue government officials who have violated citizens’ constitutional rights.
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