On Friday, Connecticut became the second state to pass qualified immunity law. This doctrine protects police officers and other public officials from the greatest liability for violations of constitutional and legal rights. Unfortunately, unlike the much stricter reform law Colorado passed in June, the new Connecticut law has serious limitations. Nick Sibilla from the Institute of Justice has a helpful discussion in Forbes:
According to HB 6004, "no police officer who acts alone or in a conspiracy with another may deprive a person or group of rights of any person or person" enshrined in the Declaration of Rights under the Connecticut Constitution, the state's equivalent to the United States Bill of Rights. Anyone whose rights have been violated by a police officer can sue them for damages before a civil court
Unfortunately, the new law contains several gaps that undermine its effectiveness. HB 6004 primarily grants immunity to police officers if they "objectively believed in good faith that their behavior was not against the law". Without clearly defining "objectively" or "in good faith", this outsourcing threatens to prevent far too many victims from achieving justice they deserve.
It is also completely unnecessary. Even if this exception were removed, since HB 6004 demands compensation for all officers who do not act maliciously, the vast majority of the police would not have to pay a cent if they violated a person's constitutional rights.
Secondly, HB 6004 allows victims who win to levy attorney fees (which can skyrocket quickly), but only if the official's actions are "committed deliberately, willfully, or with ruthless indifference." This provision is much more limited than Colorado's police immunity reform, which guarantees attorney fees to every "prevailing plaintiff". Third, the new Connecticut law applies only to law enforcement officers and not to thousands of other government officials across the state.
The exception to "good faith" is particularly problematic because it could incentivize police authorities to "hear no evil, see no evil". If the police are not told that certain types of dubious practices are illegal – or perhaps even appropriate – they could plausibly have the "good faith" that illegal tactics are perfectly fine and are given immunity. However, under the Colorado law, the government's exception to good faith only allows the official to be compensated for successful claims against him or her. Liability is not completely prevented.
Needless to say, law enforcement officials do not grant ordinary people "good faith" exemptions from compliance with the law. If the latter violate the law, they are liable regardless of whether they truly believed that their behavior was legal. In this regard, the police should be subject to at least the same standards as the civilian population.
As with the Colorado Law, it is not clear to what extent the Connecticut law applies to state law enforcement officers who work under state task forces. In the past, government officials who work with the government in such task forces have been able to claim immunity from government lawsuits by arguing that they should be treated as federal officials rather than state officials.
As Sibilla explains, the Connecticut law is still a step in the right direction. However, its limits are a warning sign of how a qualified immunity reform can be watered down at the state level to prevent police unions and other law enforcement stakeholders from conflicting. Sibilla describes how lobbying by police unions affected HB 6004, which hardly ever happened even in this weakened form.
There is a parallel here to the significant domain reform after Kelo, in which 45 states passed new reforms that restricted the power of the state and local governments to take over private property to promote "economic development". Following the hugely unpopular 2005 Supreme Court ruling confirming such revenue, there has been widespread support for curbing it and legislators have been working to meet it. Much of the resulting legislation, however, was largely toothless, as the legislature was able to satisfy public opinion without offending powerful stakeholders who benefited from the status quo.
Due to widespread political ignorance, the majority of the public does not follow the details of legislation and therefore cannot easily see the difference between effective and largely cosmetic reforms. In contrast, organized interest groups. Legislation has incentives to satisfy the former without annoying the latter, and this explains why many Kelo state legislatures have passed weak or totally ineffective major domain reforms.
The post-kelo reform was anything but a total idiot. Around twenty countries have still adopted reforms that have significantly reduced revenues. But it has not achieved as much as it could and should have.
Like the major Kelo domain reform, the abolition of qualified immunity after George Floyd's death and the resulting public focus on police abuse enjoys widespread public support. But as in the case of major domain reform, the devil of qualified immunity is often in the details, and most voters probably know little about it.
It is too early to say whether a qualified immunity reform will follow the same pattern as a major domain reform. So far we have only two state reform laws, one of which (Colorado) is pretty impressive, while the other has made at least modest progress. Nonetheless, reform lawyers should be aware of the dangerous dynamics that can arise when interest groups and legislators can take advantage of public ignorance to water down reform efforts.