The UConn Insurance Law Center recently published a report regarding section 41 of Connecticut’s Police Accountability bill that was passed last July in response to a national call for change. The Law Center’s report concluded that the new state cause of action against police officers, created in Section 41, will likely not have a major impact on the cost of insurance for municipalities. But don’t be misled. It is necessary to read the fine print contained in Footnote 12 of the report.
Footnote 12 of the Law Center’s report states: “We have not independently evaluated or conducted our own examination on whether and how Section 41 would measurably alter the litigation climate for claims and lawsuits against municipalities and individual police officers. This would be a much larger project and one requiring both additional time and resources.” Isn’t that kind of analysis critical to determining the real impact of Section 41?
A comprehensive analysis of the kind mentioned in footnote 12 should be of paramount importance to legislators as well as municipal leaders. They deserve that kind of analysis before that section takes effect on July 1, 2021.
There are valid concerns that the new cause of action is a boon to the plaintiff’s bar. Under the new law, any person will be able to sue a police officer in State Court for a violation of the person’s equal rights, including any violation of the protections afforded under the first amendment of Connecticut’s Constitution. Those rights include freedom of speech, press and religion, the right to bear arms, the right to assembly and the right to petition the government. These are a broad array of rights. With an estimated 4 million police interactions with members of the public each year in Connecticut, what kinds and how many cases do we expect to see filed in State Courts? What is the legal and fiscal impact on the municipalities? How and to what extent will it alter the litigation climate and increase the number of claims filed against police officers and their municipal employers.
In the past, such a case would have to be brought in Federal Court, where municipalities and their employees are protected from frivolous lawsuits based on the legal principle of qualified immunity. Qualified immunity shields government officials from civil liability unless the plaintiff can show that the employee violated clearly established law. Instinctively, if the new state court claim does not have the same Qualified Immunity protection, our officers in Connecticut can and will be subjected to frivolous lawsuits. Municipalities will have little choice but to settle those cases for nuisance value and potentially imputing the reputation of the police officer and department.
Also of concern is Section 41 also removes the officer’s right to interlocutory appeal in State Court. Defendants will not be able to appeal a denial of a summary judgment until after a verdict has been reached. The Law Center’s report acknowledges that: “In theory, the elimination of the interlocutory appeals is disadvantageous to defendants, because they are obliged to go through the entire process of a trial before they can seek to correct a ‘false negative’ (erroneous denial of their motion to dismiss).”
No officer wants to go through that. The personal stress of being sued, the potential damage to one’s reputation and the potential personnel actions that may be taken against an officer are of great concern to our members. Proactive policing is already declining. Motor vehicle stops are down dramatically and the street crimes units in some cities have already been disbanded. Early retirements are at an all-time high and morale is at an all-time low. Of all the costs associated with section 41, perhaps the most significant cost impact is on public safety.
As the increased costs and unintended consequences of the new mandate are studied and analyzed, we hope that legislators will consider clarifying and amending the new law where appropriate. With an effective date of July 1, 2021, there is still time.
Florencio Cotto is a police officer in New Haven, President of the Elm City Local Police Union and President of the Police Officers Association of Connecticut.
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