By Gene Bifano
End qualified immunity is a mantra designed to mislead Americans to think it provides public officials immunity from prosecution for wrongdoing, it does not – except in the U.S. Congress. All Vermont municipal officials are entitled to qualified/sovereign immunity – even our legislators.
Qualified/sovereign immunity is derived from an 1871 federal law that actually allows citizens to sue governmental officials if they abuse their power and deny constitutionally-protected civil rights – 42 USC 1983. Qualified/sovereign immunity is a civil suit. So, when you hear “they pay for their actions” it means that they literally mean pay.
All qualified/sovereign immunity does is outside the official parameters of the job. This is an important layer of due process. Since the law allows one to sue a public official, it establishes criteria. Without qualified/sovereign immunity every action a public official takes would be subject to civil suit. It would paralyze government at all levels. For police it would paralyze them from protecting you and your property.
In essence, it puts a hurdle in front of plaintiff lawyers in a civil suit that seeks to sue you, the people. After all, when a cop, fire chief or public official is sued, plaintiffs are suing those of us who pay the bill. In other words, they want to second guess a cop or government official in civil court where a simply majority wins irrespective of their official’s legal duties.
Let’s say an Act 250 committee ruled against you and you didn’t like it. You hire a lawyer to sue the committee members. That lawyer needs to convince a judge(s) that the Act 250 committee members operated outside the legal constraints of their position. If they win, then they go to trial and then have to convince a jury of wrongdoing. The problem for the ACLU and other plaintiff lawyers is that most qualified/sovereign immunity cases are thrown out without merit, and they don’t get a chance to pull the handle on the lottery machine.
In the case of law enforcement, there is a ton of case law and U.S. Supreme Court decisions to overcome qualified/sovereign immunity. And lawyers don’t like that. Again, just think, if every traffic stop results in a civil suit; municipalities will lose money, while it will cost more to defend qualified/sovereign immunity cases and the results.
One last thought, if Vermont removes qualified/sovereign immunity from police, then that will open the door to challenge all qualified/sovereign immunity – why just the police? And that after Vermont spent nearly $1 million defending a qualified/sovereign immunity case against the state by state employees who wanted more compensation after Irene and thought the state treated them unfairly. Thankfully the state won.
This is a money grab to increase the payout of the blue line lottery or it becomes workers comp for criminals.
Bifano lives in Warren.
