MONTPELIER — The Senate Judiciary Committee on Friday struck a compromise on a proposal to eliminate qualified immunity for law enforcement officers.
Rather than doing away with qualified immunity entirely, the committee, by a vote of 3-2, settled on language that codifies a Vermont Supreme Court case allowing citizens to sue cities and towns for improper search and seizure. That proposal will now head to the full Senate for consideration.
The bill also orders a report from the Office of Legislative Counsel on the state of qualified immunity in Vermont law, and the extent to which Vermonters experiencing police misconduct are denied justice as a result. That report is due Nov. 15.
Senate Judiciary Chairman Richard Sears, D-Bennington, voted yes, as did Sens. Jeannette White, D-Windham, and Philip Baruth, D/P-Chittenden. Sens. Alice Nitka, D-Windsor, and Joe Benning, R-Caledonia, voted no.
Sears, who sponsored the bill along with Baruth, Sen. Kehsa Ram Hinsdale and Senate President Pro Tempore Becca Balint, recognized that both proponents and opponents of the bill would not be happy with the compromise.
“The issue is, we need to understand does Vermont have a problem,” he said Friday. “I’d like to get some clarity. If we don’t have a problem, we don’t need to change it. But if we do have a problem, and I suspect we do, I want a better basis” for moving forward, he said.
In Zullo v. Vermont, the state’s high court found that police search and seizure of Gregory Zullo’s car stemming from an incorrect traffic stop violated Article 11 of the Vermont Constitution, and that the state was not immune from liability for that violation.
Sears said codifying Zullo into state law is important because the court decision only applied to Vermont State Police. The intent is for the Zullo standard to apply to all law enforcement, he said.
Qualified immunity protects government officials – including law enforcement – from civil lawsuits alleging rights violations. It’s not a law, but based on court precedent set in a U.S. Supreme Court case, which the Vermont courts adopted.
Critics say qualified immunity is a legal loophole that allows police to avoid prosecution for violating constitutional rights and prevents people – especially Black, indigenous and people of color — from obtaining justice. While it can be challenged in court, such challenges rarely succeed because of the way the precedent was established, advocates say.
Law enforcement stakeholders and some municipal leaders have been opposed, saying it singled out law enforcement at a time when it has been difficult to fill police vacancies. They have also pointed out that persons whose rights were violated have been able to win judgements in civil suits against the officers’ employers.
The proposal, the state Department of Public Safety said in written testimony, “feeds anti-police sentiment, sends the message to Vermont’s Judiciary that it is not applying the doctrine of qualified immunity fairly in cases involving law enforcement officers, and abdicates the Legislature’s responsibility to work with law enforcement and our communities to improve public safety.”
“The good news is that the proposed independent analysis of qualified immunity will provide legislators an opportunity to step back and consider this critical issue on the merits,” the Vermont ACLU said Friday. “With accurate information and sound analysis, we are confident they will agree with the overwhelming majority of Vermonters that qualified immunity is incompatible with Vermont values and civil rights.
“It is unfortunate that law enforcement officials were unwilling to take these problems seriously, and instead pursued a deliberate strategy to confuse and distract from the issue with faulty legal analysis, unfounded speculation, and baseless claims,” the organization said.
According to the ACLU of Vermont, a poll of Vermont voters taken in November showed 74 percent support ending qualified immunity. In the same poll, 54 percent of the 883 respondents said they knew a lot or some about the concept, while 46 percent knew a little or nothing at all, or were unsure.