Attorneys, Darien police speak out in opposition to new police bill
“Horribly unfair,” is how attorney Thomas Gerarde described a new police reform bill during the recent Board of Selectmen meeting in Darien.
The bill, which was passed the CT state house and senate and signed into law by Gov. Ned Lamont in late July, takes effect July 1 of 2021.
It contains an immunity provision, which could increase personal lawsuits against police officers who violate allowable practices.
The new bill also creates an independent inspector general to investigate police-related shootings, prohibits choke holds except in cases where cops fear for their lives, and trains police in better de-escalation tactics when dealing with crowds.
Additionally, the bill puts an end to the tactic of being fired from one department and then finding a police job elsewhere; mandates mental health and substance-abuse screening; and requires officers who witness coworkers abuse suspects to intercede and report the instances.
Throughout the meeting, Gerarde expressed his intense dissatisfaction with the new bill.
“This bill is aimed at police officers only,” said Gerarde, a managing partner at Howd & Ludorf in Hartford.
According to town attorney Wayne Fox, who recommended Gerarde speak at the meeting, Gerarde is an expert on law enforcement liability, specializing in defending the civil rights of lawsuits brought against police officers in state and federal courts.
“This is an overreaction to what happened in Minnesota. Connecticut does not have the problem that we witnessed in Minneapolis,” Gerarde said.
In attendance at the meeting were Fox and Darien Police Chief Don Anderson.
Gerarde spoke about the hesitation factor that the new bill would produce in police officers, by describing a hypothetical scenario of an armed gunman entering an elementary school.
“[He] gets past the school resource officer and is running towards a classroom,” Gerarde said.
Under normal circumstances, police officers would most likely shoot the gunman if he or she didn’t immediately stop running, according to Gerarde.
“That would be a justified shoot because it would be a reasonable perception, because those children were about to be in serious physical injury,” he said.
With the new bill, he said juries will be told to consider if there was “reasonable” de-escalation attempts made by the police officer.
“How do you know that he was really going to use the gun once he got inside the classroom? Maybe he just wanted to talk to someone. Maybe he just wanted to go in and scare the daylights out of that teacher,” Gerarde said.
He added that the police officer will now be second guessed about why he didn’t try to say something that might have made the gunman stop.
“As he’s running down the hall, the police officer is now thinking, ‘Have I used everything I’m supposed to for de-escalation?’” Gerarde said.
That line of thinking, and the feeling of doubt it’s likely to cause, is among the reasons he said he does not support the new bill, which, he said, can result in personal loss to the police officer.
“The real sad message is the police will know that if ‘I don’t do anything, I’m never going to face that series of questions. I’m not going to lose my house, my job, my savings, my family,’” Gerarde said.
When it was his turn to speak, Fox referred to that as the hesitation factor, which, he said, will result in police questioning whether or not they should act or hesitate in shooting someone who appears to be about to cause harm to someone.
“That can result in a dangerous situation, and unfortunately the potential for more serious injuries and death,” Fox said.
Gerarde spent a considerable amount of time talking about section 41 of the new bill, which could allow a lawsuit against a police officer for unequal treatment based on some protected classification.
“It could be race or gender, religion, national origin or sexual orientation,” he said. “It’s overly broad in that regard.”
At the present time, if “reasonable police officers can disagree about the lawfulness of conduct, then the police officer gets the benefit of the doubt and qualified immunity applies,” he added.
However, he said the Connecticut legislature “did not like that. They thought that too many people were getting away with qualified immunity too often. They tried to make it harder to obtain and they added a good faith component to the qualified immunity analysis.”
According to Gerarde, qualified immunity can be harder to win as a result of this bill. “We might have to prove this at trial,” he said. “That’s a big step backwards for Connecticut’s police officers.”
Use of deadly force
Another aspect of the new bill that Gerarde spent time discussing concerns the ability for a police officer to use deadly force.
The use of deadly force was established by the United States Supreme Court in the Tennessee v. Garner ruling in 1985. The Supreme Court said whenever a police officer has a reasonable perception that he or another person is exposed to death or serious physical injury, then deadly force is justified.
“That paradigm exists for good reason and has been debated for many years in the Supreme Court,” Gerarde said. “The Supreme Court recognizes that when deadly force is used, the situation is never static and calm. It’s always tense, it’s always uncertain, it’s always rapidly evolving.”
Gerarde said police officers should have the freedom to use their training “and to make those split second decisions without worrying about being tagged by 2020 hindsight after the fact.”
Dangerous instrument clause
What constitutes a deadly weapon has a specific definition in the Connecticut general statute, such as a gun, switchblade knife, bludgeon, or metal knuckles.
According to Gerarde, there are many objects that can cause death or physical injury besides the given list. Examples he gave are a regular knife with a six inch blade, and a car.
However, under the new law, if an individual doesn’t use any of the items from the list, he said police “could now get sued, have to pay a penalty from their own money, your job is on the line, your pension is on the line, and savings.”
At the meeting, Chief Anderson also spoke about the dangerous instrument clause, saying he once “took a beating by a guy with a 2 by 4, and there was nobody coming to help me. That wouldn’t fall under the deadly weapon [clause], but it certainly was a dangerous instrument and I had a right to defend myself up to and including deadly force.”
Darien police officers
While there were parts of the new bill that the experts disagreed with, other parts are already in use by Darien police officers.
These include implicit bias training, dash cams and body cams, badges and name tags required on outer garments, and civilian review boards.
“This statute allows municipalities to create civilian review boards for police officers and police departments,” Anderson said. “We already have that.”
Anderson further commented on many other parts of the bill, saying, “We are ahead of the curve.”
“Our officers do a good job of being reasonable, being fair and being evenhanded, and none of our officers are out there looking to use force, especially deadly force,” Anderson added. However, “they will if they have to.”
According to Darien First Selectman Jayme Stevenson, the Board will be watching the new police bill closely through the next legislative session to see if any modifications are made and how those might affect the Darien Police Department