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Brady Toensing: Keep qualified immunity out of the consolidation conversation

This commentary was written by Brady Toensing, a Vermont lawyer and partner in the Washington, D.C., law firm, diGenova & Toensing. He previously served as a legislative assistant to U.S. Sen. Warren Rudman. More recently, he worked in the U.S. Department of Justice as a senior counsel in the Office of Legal Policy. In private practice, he has successfully defended government officials, including the director of the Washington, D.C., prison system and an FBI Hostage Rescue Team member during investigations into Ruby Ridge and Waco.

Bill Schubart's recent column raises an interesting idea to save money by consolidating police, fire and rescue in certain parts of the state. I am not sure what qualified immunity has to do with this proposal, but the claims he makes about it are inaccurate and harmful to a sound public policy debate on the issue.

Contrary to Schubart's claims, rogue or poorly performing officers are not protected from accountability by qualified immunity, and that doctrine does not enable the rehiring of police officers who have been fired for misconduct. As I demonstrated in my presentation during the "Keep Vermont Safe" workshop, using numerous examples of cases where the defense was raised and rejected by courts, qualified immunity does not protect officers who violate clearly established constitutional and statutory rights.

For instance, a police officer who beats a restrained arrestee can be held personally liable for violating that person’s civil rights, but may not be held liable for other unestablished, unclear civil rights violations.

Two of the cases I presented involved plaintiffs making similar allegations, but illustrate how the defense works because of the different outcomes. (All facts alleged by a plaintiff at this stage of a lawsuit must be taken as true.) Both cases involved plaintiffs who claimed handcuffs were too tight when they were arrested. In one case, the arrestee complained to the officer and the officer did nothing in response. The court found that the officer was not entitled to qualified immunity because failing to address those complaints was a clear violation. In the other case, the arrestee did not complain until later, after anything could be done to fix the claimed problem. The court concluded that a reasonable officer could believe that he did not violate clearly established constitutional rights by failing to discern that the handcuffs of a non-complaining arrestee might be too tight.

Finally, qualified immunity is not a special concession to police, as Schubart asserts. All government officials enjoy immunity for good public policy reasons. Indeed, some officials (legislators, prosecutors and judges) are given absolute immunity. Without immunity, the government would be under siege from voracious plaintiffs’ attorneys and the taxpayers would be on the hook for enormous litigation costs. Ironically, the costs that would be saved by Schubart's proposal would be more than eaten up by eliminating qualified immunity for police.

The “growing anger” Schubart mentions is mostly due to inaccurate descriptions of qualified immunity (like his), which create the misperception that police officers are immune from all lawsuits for civil rights violations. Proponents of eliminating qualified immunity rely on these misrepresentations to try to eliminate the defense. Indeed, I am confident that a factually-accurate discussion of this important issue will lead policymakers to keep the immunity in place. Otherwise, good luck getting police recruits for police stations anywhere in Vermont, consolidated or not.

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