House bill targeting public officials’ immunity faulted by municipalities, police

In the sharply divided New Hampshire House of Representatives, the two opposing parties appear to have found common ground on what promised to be one the most controversial and contentious bills of the session.

House Bill 111, which targets the immunity protecting public officials, most notably police officers, from liability against civil lawsuits for conduct and decisions taken within the scope of their duties. The bill is based on model legislation drafted by the Institute for Justice, a libertarian public interest law firm headquartered in Arlington, Va., with seven offices around the country.

Despite stiff opposition from the New Hampshire Police Association and New Hampshire Municipal Association, liberal Democrats troubled by police misconduct, and conservative Republicans, suspicious of government authority, with support from Americans for Prosperity, joined hands on the House Judiciary Committee. They combined to vote — without debate — the bill “ought to pass” by a majority of 19-2

Although, the commanding majority earned the bill a place on the consent calendar, it was later removed, ensuring it will be debated later this week by the full House during its in-person session in Bedford.

Lt. Mark Morrison of the NHPA, who served on the Commission on Law Enforcement Accountability, Community and Transparency last summer, told the House Judiciary Committee that commissioners recommended 48 reforms, including convening an independent panel to investigate complaints brought against officers. But, he said, members were left divided over the issue of immunity.

“This legislation will harm our state in a way few other legislative decisions could,” Morrison said.

Representing the Municipal Association, Cordell Johnston described HB 111 as “one of the most alarming bills we have ever seen.”

He warned that the bill threatened to place cities, towns and counties as well as their employees at risk of liability by eliminating “various immunities from lawsuits that, for decades, have protected local officials and employees from tort liability for good-faith decisions made in the performance of their duties.“

Good faith

The notion of immunity originated with a federal law of 1983 entitling persons to sue government officials or employees who allegedly violated their constitutional rights. Subsequently, the federal courts developed the doctrine of “qualified immunity.” The doctrine shields those whose conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Qualified immunity applies only to liability for the violation of constitutional rights, not to conduct that may well be criminal without violating a person’s constitutional rights.

New Hampshire law provides “official immunity,” which protects government officials from liability for conduct and decisions taken in good faith and within the bounds of their authority provided they acted neither recklessly nor wantonly and with a reasonable belief their action was lawful.

Qualified immunity rests on federal law beyond the reach of state legislatures. Instead, HB 111 would entitle citizens to file suit in state court for violations of the state constitution, which confers rights mirroring the of federal constitution. In other words, the bill would offer an alternative to proceeding in federal court under the 1983 law by filing in state court and sidestepping qualified immunity.

According to Johnston, HB 111 provides that if the immunities secured by the laws and constitutions of both the state and federal government were not clearly established when they were violated by a public official or that the official could not reasonably know the conduct to be lawful, there is no defense of immunity. This provision, he said, eliminates qualified immunity in claims for violations of the state laws and constitution.

But, Johnston added, the bill also denies immunity to officials acting in good faith and believing their conduct lawful, effectively repealing the statute providing official immunity.

The effect, he said, would be that, while qualified immunity may shield exemplary police officers, it has the potential to shield wayward officers as well, while official immunity, as in New Hampshire law, projects only “good cops.”

For instance, the landmark case involved police officers who conducted a lawful search and seizure, but also stole a person’s property. The appeals court ruled the 1983 law, while not shielding the officers from criminal liability, entitled them to qualified immunity because the court had never ruled that theft of property while executing a search warrant violated the Fourth Amendment of the Constitution forbidding unreasonable search and seizure.

Johnston argued that New Hampshire law protects only police officers whose conduct is not reckless or wanton and based on their belief it is lawful. HB 111 would strip these protection for all agents of the state and its municipalities.

He offers the examples of a fire chief sued for trespass after conducting an inspection, a town moderator ordering a voter to remove clothing bearing the name of a candidate and a welfare officer denying a client assistance. While all may have acted in good faith believing they were complying with the law, all would be liable without a defense.

The bill, he said would provide that individual officers and employees cannot be held financially liable, but they can be sued and terminated. Instead, financial liability would rest with the municipality, which Johnston said, “makes the municipality an insurer for the actions of a rogue employee.”

By contrast, Johnston noted that federal law holds municipalities liable only if it follows flawed policies or provides inadequate training. While Johnston conceded the financial damages may be “minimal,” municipalities would also be liable for plaintiffs’ fees, legal expenses and court costs.