The Vermont Senate’s bill to end qualified immunity for police officers remains alive, albeit watered down, after facing what lawmakers and advocates call a “unified front” of opposition from law enforcement agencies and municipalities.
Just in time to meet the crossover deadline, the Senate Judiciary Committee on Friday voted 3-2 to advance a new version of S.254, which would commission an independent report on qualified immunity’s application in Vermont. The bill also would codify the state Supreme Court’s Zullo v. Vermont decision, which grants citizens a private right of action against state police “based on alleged flagrant violations of Article 11.”
“I still support the idea of the elimination of qualified immunity,” Sen. Dick Sears, D-Bennington, who chairs the committee and led S.254, said Friday morning. “But it’s clear to me that to try to do that this year is next to impossible given the length of time we had in committee, even though we’ve had extensive discussion.”
Qualified immunity is a widespread legal doctrine established in U.S. Supreme Court precedent that protects public servants from facing litigation for violating citizens’ civil rights while on the job. As it applies to law enforcement, agencies and municipalities say it’s a necessary protection for officers to police without fear of frivolous lawsuits.
But proponents of the original S.254, which would have slashed the doctrine outright for police officers, say that the tool allows officers to act with impunity and denies victims of police brutality a path to justice in civil court. In a world where people of color are victimized by police violence at higher rates than their white counterparts, proponents say it’s an issue of civil rights and who gets their day in court.
A few other states have successfully ended qualified immunity for police. But as The Washington Post reported, internal opposition efforts to those bills across the country have been fierce.
Sears said Vermont is no exception. Following the committee’s vote Friday morning, he told VTDigger that the bill has been stripped down to what he would consider “the bare minimum,” and that “this is not unlike what’s happened in 30-odd other states.”
Asked Thursday afternoon if he could point to a piece of legislation that has seen a comparable opposition effort, Sears considered for a moment and said maybe the legalization of civil unions at the turn of the century, or Act 60, the education finance law, a few years earlier. Both are decades-old examples that had a key difference: The state supreme court was forcing the Legislature to act. That’s not the case with qualified immunity.
Senate President Pro Tempore Becca Balint, D-Windham, a cosponsor of S.254, said it had often looked like the bill wouldn’t prevail this session.
“(L)ike any attempt to change the status quo, we’ve experienced a lot of push back,” she said in a statement Friday afternoon.
One day earlier, at a Thursday news conference attempting to rally support for the bill, lawmakers and advocates described the “unified front” of opponents against criminal justice and police accountability reform bills, including S.254.
Rep. Tanya Vyhovsky, P/D-Essex, said opponents are using “red-herring scare tactics” and worst-case-scenario hypotheticals in an attempt to frighten lawmakers and the public. Sen. Kesha Ram Hinsdale, D-Chittenden, said law enforcement agencies falsely claim that Vermont doesn’t have a problem with police brutality, so best practices don’t need to be codified.
Wilda White, a consultant who works with the state Department of Public Safety and has testified against S.254, scoffed at the idea of a concerted lobbying effort against the bill, saying that’s “just rhetoric coming from people who have a political agenda.”
“They think that (opponents are) united because of backdoor meetings. No, they’re united because they read the bill and it was woefully inadequate and they’re opposed to it,” she said.
Ben Herrick, president of the Vermont Police Association, said he did not have a response to claims of a concerted opposition effort.
Mia Schultz, who is the president of the Rutland NAACP, said opponents are people for whom the current systems work: “Let’s name it: white, middle-class, cisgender, able-bodied people,” she said.
“Those are the people who are generally pushing back, because it works for them,” Schultz said. “And they have this all or nothing mentality, thinking that if we reform a system that works for them, somehow it will hurt them.”
James Duff Lyall, the executive director of the American Civil Liberties Union of Vermont, told VTDigger Friday afternoon that he thought weeks of hearings on the bill showed that law enforcement officials were “willing to say anything” to defeat the bill.
He pointed to law enforcement’s claims that ending qualified immunity would open the door to a tsunami of frivolous lawsuits, or that officers would resign in droves, and said they were stoking “hysteria.” He said officers’ claims that Vermont doesn’t have a problem with disparate policing practices “suggests a kind of obliviousness and denial that is really hard to fathom.”
“It’s one thing to disagree on policy between two sides, but to see one side willing to literally say anything, regardless of whether it was coherent … or had any basis in reality, that was disappointing,” Duff Lyall said. “But we’ve seen police unions and other opponents pursue that exact strategy in many other states. It has worked in some states, and this year, it worked in Vermont.”
Asked for her take on the latest iteration of S.254, White said it’s clear that “it was drafted in haste.” Karen Horn, the director of public policy and advocacy for the Vermont League of Cities and Towns (which opposes ending qualified immunity), said that the League is not opposed to commissioning a report on qualified immunity, but that to loop the Zullo precedent into the latest bill draft “doesn’t really make a lot of sense.”
Vermont Department of Public Safety Commissioner Michael Schirling was not available for comment Friday afternoon. Over the course of this legislative session, the department has opposed ending qualified immunity.
S.254 still has a long way to go before it could become law. It faces a vote before the full Senate, then committee and floor votes in the House before reaching Gov. Phil Scott’s desk.
His spokesperson, Jason Maulucci, said in a written statement Friday afternoon that Scott is “strongly opposed” to ending qualified immunity. He said the office has not yet been able to review S.254’s amendments, but “they do not appear to address the serious, detrimental impacts it would have on law enforcement agencies’ ability to retain and attract needed public servants.”
Read the story on VTDigger here: Watered-down qualified immunity bill advances after facing ‘unified front’ of opposition.
