OpEd: Beware the New (CT) Trojan Horse

By Dan FitzPatrick

All Connecticut citizens should be aware – and wary — of a new bill wending its way through our state legislature.  Titled “LCO no. 3471 – An Act Concerning Police Accountability,” the bill makes numerous changes to existing law regarding police training and evaluation, civilian review of police conduct, use of physical force, the use of body and dashboard cameras and military-style equipment, etc., all in response to concerns raised by recent events in other states that have made headlines across the nation.  Some of the proposed revisions may be viewed as overkill and will likely be refined through the normal comment-and-review process, but on the whole, it presents itself as a thoughtful update of existing law.  However, just as the wooden horse presented as a gift to the city of Troy in the story told in Virgil’s Aeneid and Homer’s Odyssey contained the hidden danger of Odysseus and the Greeks, this bill contains certain provisions that could prove calamitous to the safety, security and fiscal survivability of our state and municipalities. To wit:

• Buried in Section 12 of the bill is a change to Section 6 of public act 19-90 (which established the Police Transparency and Accountability Task Force) that requires the task force to examine “the merits and feasibility of requiring police officers to procure and maintain professional liability insurance as a condition of employment” and/or “the merits and feasibility of requiring a municipality to maintain professional liability insurance on behalf of its police officers.”  

• Section 29 of the bill changes the standard for permissible use of deadly force from a subjective test (the officer “reasonably believes” it is necessary) to an objective one (whether the officer’s actions are “objectively reasonable” given the circumstances).  This change would legislatively elevate 20/20 hindsight over an officer’s in-the-moment judgment.  Moreover, the bill sets out certain factors to consider when evaluating whether an officer’s use of deadly force was “objectively reasonable,” including whether the officer “engaged in reasonable de-escalation measures” before using deadly force and whether “any” of the officer’s conduct “led to an increased risk of an occurrence of the situation that precipitated the use of such force.”  Together, these provisions shift the burden of proof of permissible use of deadly force onto the officer, rendering every use of physical force an act of personal jeopardy for the officer.  

• Section 30 of the bill requires every police officer to “intervene and attempt to stop” another officer from using force that the witnessing officer “objectively knows to be unreasonable, excessive or illegal use of force.”  It also requires every officer “who witnesses another police officer use what the witnessing officer objectively knows to be unreasonable, excessive or illegal force or is otherwise aware of such use of force by another police officer” to report the incident “as soon as practicable.”  Failure to do so would subject the officer to potential prosecution on a 1st or 2nd degree hindering prosecution charge (a 1st degree violation carries a mandatory five-year prison sentence). 

• Finally (and most worrisome in my opinion), Section 41 of the bill would create a new statutory cause of civil action, triable by jury, against any police officers who “deprive any person or class of persons of the equal protection of the laws of this state, or of the equal privileges and immunities under the laws of this state.”  In addition to utilizing a very broad standard, the bill overturns a longstanding common law principle by legislatively eliminating the defense of qualified or governmental immunity (protection from civil suit for the government and its employees).  As a result, aggrieved persons could bring suit against both the police officer and the law enforcement unit employing such police officer and, if successful, “may be awarded costs and reasonable attorney’s fees” (that latter provision changes another longstanding judicial rule, substituting the “English Rule” where the losing party pays the winning party’s legal costs for the traditional “American Rule” where each party bears their own legal costs).  If the court or jury finds that the violation was “deliberate, willful or committed with reckless indifference,” the court may also award punitive damages.

Why do I think these provisions are so dangerous?  Two principal reasons.  

First, by changing the standard and shifting the burden of proof with respect to use of force, potentially requiring police officers to purchase individual professional liability insurance, holding police officers criminally responsible for monitoring the actions of their colleagues, creating a new and loosely defined cause of civil action the defense against which would be made more difficult by eliminating traditional immunity defenses, and potentially imposing aggrieved-party legal costs and possible punitive damages, the legislature will have dramatically increased the career and financial risks involved in serving as a police officer.  As a result, we should not be surprised to see unprecedented resignations and retirements, and dramatically reduced recruitment results.  The goal of those who call for “defunding” the police force will be met by its depopulation.

And second, by specifically expanding liability to include the governmental agencies that employ police officers, and eliminating governmental immunity, the bill would open the floodgates to lawsuits, merited and unmerited, against our state and its cities and towns at a time when many are fiscally challenged and already dealing with the burden of being attractive targets of lawsuits.  Professional liability insurance, if even obtainable, would not be sufficient to offset the very predictable drain on public coffers.

Given these concerns, why in the world would the legislature entertain these changes?  I have found in the past that the best way to understand motivation is to identify who or what stands to gain most from the action proposed.  In this instance it is hard not to see that the group most likely to benefit from these provisions in the new bill is the tort bar.  New causes of action tried to juries based on ill-defined standards without the availability of traditional defenses and with the potential for having the opposing party pay your legal fees — what’s not to love in that if you are a tort lawyer?  Would it be too much of a stretch to inquire whether the tort bar had a hand in drafting the proposed legislation?

The purpose of this piece is not to throw shade at the tort bar.  Instead, my aim has been to alert others to what I believe are wrong-headed legislative proposals in sufficient time to let their voices and opinions be heard by their elected representatives before it is too late.  

Let’s not let our great state of Connecticut fall victim to Troy’s mistake.

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