Government workers' immunity from suit under review

Kevin Landrigan, The New Hampshire Union Leader, Manchester
·3 min read

Feb. 23—CONCORD — A New Hampshire House committee confronted a divisive topic regarding law enforcement reform Tuesday, whether to end the immunity police officers and other government officials have even if they violate an individual's constitutional rights.

Leading law enforcement and municipal leaders warned that ending this protection, however, would have a chilling effect on recruiting new job applicants and make police officers skittish while carrying out split-second judgments while lives were at risk.

A 2007 Supreme Court decision created this immunity for police from being sued if officers took actions connected to their jobs

State law already prevents local and state police officers from having to pay out of pocket any civil damages awarded in state court.

A second law limits those damages to no more than $450,000 in cases against the state involving state troopers.

Since a 1983 federal court decision, all New Hampshire government officials have had job-related immunity from civil lawsuits under federal law.

Gilles Bissonette, legal director for the Civil Liberties Union of New Hampshire, said this immunity contributes to a lack of trust in government.

"If public distrust of law enforcement could be attributed to a single thing, it likely would be how common it is for an officer to evade individual legal accountability for violating someone's constitutional rights, particularly in cases where lethal force is used," Bissonnette told the House Judiciary Committee.

Mark Morrison, a lieutenant with the Londonderry Police Deptartment, said police officers aren't totally immune from suit, but this bill (HB 111) goes too far.

"If employees perform in 'reckless' or a 'wanton manner' in discretionary decisions, they are not given qualified immunity," said Morrison, representing the New Hampshire Police Association.

"This legislation will harm our state in a way few other legislative decisions could."

Patrick Jaicomo, an Arlington, Va., lawyer with the non-profit Institute for Justice, said New Hampshire doesn't have punitive damages, and that would limit court fights only to the most-egregious violations.

"This bill will add accountability without flooding the courts with lawsuits," Jaicomo said.

Critics warn it would paralyze government

Cordell Johnston, with the New Hampshire Municipal Association, said the bill removes all immunity protections and would paralyze government.

"If all of those decisions are subject to lawsuit, eventually local government becomes impossible," Johnston said.

Last summer, the Commission on Law Enforcement Accountability, Community and Transparency came together on 48 recommendations for reform including creating a new, independent panel to investigate all misconduct complaints against all officers.

But members of this commission broke down into two camps over this immunity question.

Police members strongly opposed it while ACLU-NH, Black Lives Matter and NAACP leaders wanted it to be part of the final blueprint.

The commission, as a group, agreed to let the issue to go the Legislature for its review.

The legislation attracted some strange bedfellows with sponsors ranging from liberal Democrats Paul Berch of Westmoreland and Marjorie Smith of Durham to conservative Republican Kurt Wuelper of Strafford.

Ross Connolly, deputy state director of the fiscally-conservative Americans for Prosperity, said ending the immunity would allow victims to sue public employers for damages, but not individual, government employees.

"We should all agree that bad actors, no matter who they are or who they work for, should be held accountable for their results," Connolly said.

klandrigan@unionleader.com