On May 25, 2020, a 46-year-old black man by the name of George Floyd was arrested for passing a counterfeit $20 bill in Cup Foods, a Minneapolis grocery store. During the course of his arrest, Floyd was handcuffed and placed face down on the street. With two officers restraining Mr. Floyd, a third officer prevented onlookers from intervening. A fourth officer, Derek Chauvin, placed his knee on Floyd’s neck for over nine minutes. Cell phone video shows Floyd struggling to breathe until he eventually loses all signs of life. Through it all, Chauvin’s facial expression lacks any sign of human emotion—it almost seems as though he is performing a banal, bureaucratic task. Although some officers called for assistance, no effort was made by those already on scene to save Mr. Floyd’s life. Eleven months later, Chauvin was convicted by a Minneapolis jury of second-degree murder, third degree murder and second-degree manslaughter.
The video of Floyd’s death went viral, prompting reactions throughout the United States and abroad. In Minneapolis, citizens reacted to the video—and Chauvin’s crimes—by smashing the windows of Cup Foods and other small businesses, and setting fire to cars and buildings. By nightfall, protests began across the country, continuing for the next several months, some of which were violent but were mostly peaceful. Ultimately, there were protests in over two thousand American cities and towns.
In Connecticut, people of all ages and stations joined the barricades, braving a pandemic to march against police misconduct. Both houses of the General Assembly engaged in long and passionate overnight debates, which resulted in a sweeping, omnibus police reform bill signed by the governor shortly after Mr. Floyd’s death.
The new police accountability law addresses numerous areas of law enforcement reform, which had been unsuccessfully targeted by progressive groups for many years. At 71 pages, the bill includes a potpourri of hot button issues, such as imposition of police accountability through Civilian Police Boards and an Office of Independent Counsel to investigate police misconduct, limits on police/citizen encounters and use of force, the expansion of officer liability in civil suits and transparent disclosure of incidents of police misconduct.
One of the most controversial provisions of the police reform bill addresses the scope of governmental immunity held by police officers in civil actions for money damages.
The law begins by stating: “no police officer, acting alone or in conspiracy with another, shall deprive any person or class of persons” of the rights enumerated in the Declaration of Rights contained in the Connecticut Constitution (which is essentially the same as the Bill of Rights contained in the United States Constitution). The statute permits anyone whose rights have been violated to sue police officers for damages.
This section of the police accountability law has been heavily criticized by law enforcement. A central argument raised by these interest groups, advances a theory that the increased exposure to civil liability will diminish police recruitment. This is incorrect. Indeed, Connecticut already allows individuals to sue police officers. In Binette v. Sabo, a groundbreaking 1998 decision by the Connecticut Supreme Court, which was brought by my office, the Court created a “state constitutional tort remedy” that allows victims of police misconduct to sue responsible police officers under the Connecticut Constitution.
However, Binette was limited to Articles 7 and 9 of the Connecticut Constitution, which apply only to unreasonable searches and seizures and wrongful arrests. The police reform bill takes a significant step forward by expanding the state constitutional remedy to apply to all other individual state constitutional rights, such as the right to bear arms, freedom of expression, the right to assembly, and equal protection.
Under the new reform statute, municipalities and police departments will be required to indemnify police officers and pay for their legal defense, except for cases involving “a malicious, wanton, or willful act.” Here again, this is no real change because Connecticut statutes already require indemnification of police officers.
The issue of qualified immunity is also addressed by the bill, and this, too, inspired vocal opposition and outrage by police unions. There are two kinds of immunity: absolute and qualified. Absolute immunity means that individuals acting in a protected capacity, such as witnesses testifying in court, cannot be sued thereby precluding a subsequent defamation claim. In contrast, qualified immunity is a judicially-created doctrine that applies only in limited circumstances. The doctrine was crafted out of whole cloth by the United States Supreme Court in the 1967 decision of Pierson v. Ray. Qualified immunity was intended to protect officers acting in good faith and shield them from liability for mistakes in judgment about legal questions, such as when the state law allowing an arrest is later found to be unconstitutional.
When the Supreme Court first created qualified immunity, it was intended to provide police “breathing room to make reasonable but mistaken judgments about open legal questions.” Over the years, however, it was continually expanded to encompass many more issues to the point it effectively provided officers with blanket protection. Indeed, an officer was afforded qualified immunity so long as it could be shown they did not violate “clearly established law.” As an added layer of protection, a law is “clearly established” only if the Supreme Court or the Appeals Court for that federal circuit has previously held identical conduct to be unconstitutional.
This expansion led to a multitude of decisions granting qualified immunity to officers who have engaged in the most outrageous conduct. For example, in one case where police unleashed dogs on a suspect who had already surrendered, a federal court found no constitutional violation because he surrendered by sitting on the ground and raising his hands; this did not comport with an earlier case finding it unconstitutional to sic dogs on a suspect who surrendered by lying down. In another case, qualified immunity protected officers who shot a 10-year-old boy in the leg while trying to shoot his unthreatening dog because there were no previous cases involving a dog where a boy was involved.
The list goes on and on. As the Institute for Justice has declared: “Qualified immunity means government officials can get away with violating your rights as long as they violated them in a way nobody thought of before.” The rule has been attacked by an ideological cross-section of groups from the ACLU to the Cato Institute. Fifth Circuit Appellate Court Judge Don Willette has written: “qualified immunity smacks of unqualified impunity, letting police officials duck consequences for bad behavior-no matter how palpably unreasonable-as long as they were the first to behave badly.”
After years of criticism, the Supreme Court recently indicated a possible change in course. On November 2, 2020, the Court issued an unsigned opinion in Taylor v. Riojas. In Rojas, the lower court granted qualified immunity in a case brough by a prisoner kept in “shockingly unsanitary cells” which were “covered nearly floor to ceilings, in massive amounts of feces” for six days. Despite the absence of clearly established prior opinions, the Supreme Court reversed the lower court opinion because “any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.” In the months since Taylor was decided, it has been cited in more than 20 cases, which indicates a direction-shift in the scope of qualified immunity. Hopefully, at long last, this court-made doctrine may soon be gone.
Connecticut’s police reform statute affords qualified immunity to police officers by barring liability if the officer “had an objective good faith belief that such officer’s conduct did not violate the law.” The question remains, however, as to whether Connecticut will follow the history of the federal courts by requiring clearly established precedent before waiving qualified immunity.
Despite the outcry from law enforcement and conservative groups, the police reform bill does little or nothing to expand police liability since police officers are already protected by insurance policies and union contracts that provide coverage for conduct that is not willful and wanton. A better approach would be to follow the lead of states like Colorado, which simply provides payment for police misconduct to be made by the municipality and to put the whole issue of qualified immunity in the trash where it belongs.
The police reform bill takes steps in three areas to increase police accountability for wrongful acts. Unfortunately, these efforts are limited and could have gone much further to make police publicly accountable.
A longstanding criticism of law enforcement in Connecticut has been the near total absence of prosecutorial oversight over police misuse of deadly force; a problem arising from the close alliance between police and prosecutors. Historically, murder charges have been brought against Connecticut police officers involved in fatal shootings on only two occasions—the most recent of which involved my office, which brought a successful civil rights suit against the City of Hartford. This is so despite numerous civil rights wrongful death lawsuits against the police where the plaintiffs prevailed.
Under present state procedure, the investigation and prosecution of cases involving deadly force is done by prosecutors from a district other than where the killing took place, a fairly recent reform which was considered ground-breaking at the time it was enacted.
In an attempt to provide greater accountability, the reform bill establishes an Office of Inspector General within the division of criminal justice with sole responsibility to investigate and prosecute cases across the state involving deadly force by a police officer or the failure to intervene by a police officer when deadly force was not justifiable. The statute assigns the Inspector General’s office is established as an office within the Division of Criminal Justice nominations are made by the Criminal Justice Commissions and approved by the General Assembly.
At first glance, this appears a worthwhile effort to make police accountable in the most serious cases of police misconduct. However, there is a serious question as to how independent this office will be when run by a state prosecutorial division, which has historically refused to prosecute police officers. As stated by at least one prominent criminal defense lawyer, it is like asking the fox to guard the henhouse. This is an office independent in name only. A better approach would be to establish a truly independent entity with no connection whatever to the State Attorney’s office.
One of the most ambitious sections of the police reform bill is a provision authorizing a municipality to establish a civilian police board (CPB). The statute provides full subpoena power to all CPBs, authorizing them to compel the attendance of witnesses and production of documents. The composition of all newly constituted CPBs, along with their “scope of authority,” are decisions left to the municipality. The statute specifically provides that no limitations will be imposed on municipalities which already have CPBs.
CPBs have a long history, beginning shortly after the Second World War. Over the next two decades these early review boards were ultimately dissolved because of police objections. Beginning in the 1960s, however, a reform movement began led by black activists calling for community oversight of police misconduct. By the end of the 1990s, most of the large cities around the country and in Connecticut established civilian review systems.
Despite their prevalence, CPBs are generally viewed as ineffective because of several common problems, including: obstruction and outright defiance by police departments and their unions; restrictions on what information CPBs may publically release; staffing of CPBs by past or present police employees; inadequate funding; and the failure to provide CPBs with subpoena power sufficient to conduct full investigations.
The present police reform bill takes a significant step forward by authorizing the legislative body of every town in Connecticut to grant subpoena power to CPBs. The subpoena power is an essential tool for conducting oversight with real teeth and meaningful investigations. This vital aspect of police reform was vigorously opposed by police unions across the state.
Another critical component for CPB effectiveness is transparency. CPBs must make full disclosure of police misconduct. The complete disclosure of complaints of officer misconduct is always vigorously opposed by the police on every possible ground, something I have routinely experienced as a civil rights lawyer. The reform act further advances the effectiveness of CPBs by allowing Freedom of Information disclosures and prohibiting non-disclosure language in collective bargaining agreements.
The police accountability statute reserves all other essential decisions for each individual municipality. For example, towns must determine the vital matter of the composition of CPBs. To be effective, CPBs must be comprised of citizens from the community who will live with the effects of police decisions, not past, present or future members of the police department, or members of the executive branch who select police chiefs. Without careful attention to the composition of CPBs, they run the risk of becoming a meaningless rubber stamp for police decision-making, and not the powerful democratic tool that can lead to real accountability.
The reform statute also accords municipalities complete power to determine the scope of authority of CPBs. Many experts agree that the best approach is to task CPBs with authority to investigate all classes of misconduct, not just cases of deadly force. Lesser offenses, such as cases involving discourtesy or foul language often go unreviewed, yet they can act as an early predictor of later, more serious police misconduct.
The level of funding is a vital issue also left to municipalities. To be successful, the CPB must have a separate budget, one which is not controlled by the police department and which is sufficient to employ a full staff, capable of reviewing all citizen complaints and professionally assess the data to determine the impact of police practices and policies.
The wide discretion afforded each municipality to run their CPBs provides an important opportunity to create a meaningful tool for police reform. To its credit, the City of Hartford has recently adopted significant reforms to its CPB, which was created in 1992. After years of problems, such as a lack of full investigatory power, a backlog of cases, and absence of transparency, the City adopted a comprehensive proposal in July of this year, which included an Office of Inspector General with a full staff. In addition, the CPB reflects the diversity of the City in race, gender, sexual orientation, ethnicity, and age. The CPB has also reserved a seat for someone who has been involved in the criminal justice system as a defendant. Also, the CPB may challenge a police department disciplinary decision and insist on an independent review from a retired state or federal judge. To finance the CPB, the City substantially increased its budget by reducing the police budget by $1,000,000.
Under present law, as defined by United States Supreme Court decisions interpreting the Fourth Amendment, a police officer’s use of force must be objectively reasonable in light of the circumstances existing at the time without regard to underlying intent or motivation. Under Connecticut’s police reform statute, further limitations are imposed. In addition to a justification which is objectively reasonable, police officers may only use force when they have exhausted all reasonable alternatives and they reasonably believe the use of force creates no significant risk of injury to a third person. This language has been criticized by the police as being overly restrictive in deadly, fast moving circumstances with no time for reflection.
The statute addresses other use of force issues at random in no particular order.
For example, the reform bill further provides that when using deadly force the determination of reasonableness must take into account whether the suspect had a deadly weapon and whether the officer either heightened or attempted to de-escalate the situation.
In direct response to the George Floyd case, chokeholds are a specific use of force tactic prohibited by the statute. Any stranglehold, or other actions which restricts oxygen and blood flow to the brain are banned except when necessary to protect someone from the imminent threat of death.
The duty to intervene is emphasized in the reform bill. This too is a direct consequence of the Floyd case where at least three police officers stood by while another officer prevented him from breathing with his knee on Floyd’s neck. Officers who witness their peers acting in an “unreasonable” manner have an affirmative duty to intervene or they will be subject to the same sanctions. A witnessing police officer must also report the incident as soon as practicable. Officers who don’t report can be charged with hindering prosecution. Officers who do report an excessive force incident are afforded whistleblower protection.
Police-citizen encounters involving automobiles often serve as flash-points for the use of force. Under the new statute, no police officer may conduct the search of a vehicle stopped solely for a motor vehicle violation unless there is probable cause to believe that a felony or misdemeanor offense has been committed. Moreover, a police officer may not ask a motor vehicle operator for permission to conduct a search of the vehicle, and may not ask for the production of any documents or identification other than an operator license, motor vehicle registration, insurance card, or other documentation directly related to the operation of the vehicle.
Accurate data describing police use of force is not available, something widely noted by many experts in the area of law enforcement reform. In particular, there is no national database compiling police killings by the approximately 17,000 law enforcement agencies across the nation. The Connecticut reform statute seeks to address this serious omission by requiring every police officer to file detailed use of force reports in cases involving the physical injury of a suspect up to and including death. Each department must then forward these reports to the Office of Policy and Management, which must compile a statistical analysis to be submitted annually to the Governor and the chair persons and ranking members of all standing committees of the General Assembly relating to the judiciary and public safety.
A major focus of the police reform statute is directed to maintaining the competency of police and racial diversity of police departments.
The statute stresses police competency by focusing on evaluations, training and certification requirements. For example, the reform statute requires police officers to submit to a periodic behavioral health assessment not less than once every five years. In addition, the head of each police department may, for good cause shown, require a police officer to submit to an additional behavioral health assessment.
In addition to existing requirements regarding the use of force, the statute requires the establishment of guidelines and training in several new areas, such as crowd management, with a focus on the protection of individual rights while preserving peace during demonstrations and instances of civil disturbance. Training is also required in the use of body-worn recording equipment and the retention of data created by such equipment. Another new area is the requirement for “implicit bias training” that provides officers with education on “how to recognize and mitigate unconscious biases against a particular segment of the population that might influence a police officer’s judgements and decisions when interacting with a member of a segment of the population.”
The reform statute expands the grounds for decertification of a police officer to include a wide range of misconduct. Decertification was previously limited to felony convictions or misuse of a firearm resulting in death or serious injury. A police officer can now be suspended or decertified for discriminatory conduct, racial profiling, tampering or fabricating evidence, perjury and falsification of reports, excessive or non-justifiable force including improper use of firearms, and, more generally, “conduct that undermines confidence in law enforcement.” Once a police officer is decertified, he cannot obtain re-employment in law enforcement, including as a security guard.
The statute also makes a significant effort to ensure diversity within the composition of police departments. To this end, departments serving communities with a high concentration of minority residents must “make efforts to recruit, retain and promote minority police officers so that the racial and ethnic diversity of such unit is representative of such community.” These efforts may include actions to attract young persons from the community to law enforcement careers through mentoring, enrollment and participation in sports, education, and otherwise fostering a positive relationship with young people and the police.
In the event there is a vacant position in a police department located in a minority community, the statute requires that position be filled by hiring or promoting a minority candidate when the qualifications of the minority exceed or are equal to that of any other candidate. The head of the police department is required to report annually to POST (Police Officer Standards and Training Council) on the “community’s efforts to recruit, retain and promote minority police officers.”
Following the widely publicized shooting of Michael Brown, Jr. on August 2014 in Furgenson, Missouri, together with a subsequent string of sensational videotaped police killings, interest in body cameras for police exploded across the country. Despite privacy concerns raised by the ACLU and others, the usefulness of video footage to document evidence of police/civilian encounters is obvious. Indeed, the widespread availability of mobile phone videos has surely been the single biggest catalyst for national adoption of police reforms.
In Connecticut, the call for body cameras has been taken up by prosecutors, most recently by the Waterbury State’s Attorney charged with investigating the deadly shooting of an unarmed homeowner in his home by a police officer. In this case, in which I was involved, there was some troubling circumstantial evidence but no witnesses, a fact which the State’s Attorney publicly lamented, given the fact that the matter could have easily been resolved with video evidence.
Under Connecticut’s new statute, police officers are required to use body-cameras and dashboard video cameras “while interacting with the public in such member’s law enforcement capacity.” The statute takes steps to protect privacy interests by prohibiting disclosure of the interiors of hospitals and mental health facilities and medical/psychiatric evaluations.
Recordings of individuals with a special interest in privacy, such as victims of domestic homicide, are protected from disclosure, except when there is a special need for disclosure such as in a criminal trial.
A coincidental, reoccurring problem has arisen with respect to police videos across the country: unavailability due to alleged equipment failure. I know from my own experience litigating police misconduct cases, that crucial video is frequently claimed to be unavailable with blame placed on equipment malfunction. The statute addresses this issue by requiring any lost, damaged, or malfunctioning equipment to be reported immediately in writing. Each officer must inspect camera equipment prior to each shift, and supervisory officers must promptly repair or replace defective equipment upon notification.
The legislative session that gave rise to the police reform bill came at a time of great national controversy regarding an assortment of police reform issues. Two issues of recent public concern addressed by the statute are that of the militarization of the police and false criminal complaints made against minorities.
For some time, there has been wide-spread concern about socalled “police militarization” by the use of military equipment and tactics. This more aggressive style of law enforcement includes the use of assault rifles, submachine guns, sniper rifles, and other weapons commonly associated with so-called Special Weapons and Tactics (SWAT) teams. Militarization is also seen in the policing of protests, where riot police fire at protestors with rubber or plastic bullets and make use of tear gas (which is prohibited by various international treaties but allowed by most states for domestic or non-combat situations). Concerns about militarization have been raised across the political spectrum from the American Civil Liberties Union to the libertarian Cato Institute.
The new statute addresses this issue by immediately barring police departments from obtaining excess military equipment from the federal government. This so called federally designated “controlled
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