Why I Voted to Support the Police Accountability BillJuly 28, 2020
I have specifically been told, “If you vote for this bill, you don’t care about my life.” I have also been told, “If you vote against this bill, you don’t care about my life.”
On Friday morning just after 9 a.m., after an all-night session that had begun 22 hours earlier, the House passed HB 6004, An Act Concerning Police Transparency.
This bill, which now heads to the Senate for consideration on Tuesday, was passed in a special session that was historic for a number of reasons. It was also the most difficult day I have faced as a legislator. Several of my colleagues have said the same, so I thought I’d share some of the details of the 24 hours I spent in Hartford on July 23 and 24, and the long days of work that preceded it.
But first, I'd like lay out some of the important reforms that the bill — clocking in at 71 pages — makes to increase transparency and accountability in our state and local police departments.
Click this link to read a plain-language analysis of the bill by the state’s nonpartisan Office of Legislative Research.
Click this link to read the full bill.
Some of the top reforms include:
-The Police Officer Standards and Training Council (POST) gains additional oversight, recruitment and disciplinary powers, encouraging minority recruitment and making it easier for cities and towns to “de-certify” problem officers;
-Mandates mental health screenings and other training (including on implicit bias and de-escalation), while protecting the privacy of officers’ medical records, ensuring the availability of treatment resources, and protecting officers from retaliation for seeking care;
-Mandates and provides funding for body and dashboard cameras;
Requires officers to intervene when they see a colleague use excess force, and protects those who report it;
-Updates the definition of “use of force” to bring the state in line with federal standards;
Creates an Office of the Inspector General with prosecutorial authority to investigate abuse;
-Reforms “qualified immunity” by creating a state cause of action for the deprivation of civil rights with a defense for officers acting in good faith, with no additional financial liability for officers than under current law.
The final point on that list, qualified immunity, produced a heated debate, both inside and outside of the capitol buildings. A lot of the rhetoric ignores the significant revisions made to the bill before it was put to a House vote. Here are a couple of important points:
-The compromise language we passed did not repeal qualified immunity. Instead, it reformed it, returning it to the version that was in existence from 1967 until the early 1980s, which protected officers who made reasonable mistakes. Our language erases changes in the doctrine that have barred legal suits, even in outrageous cases of police misconduct.
-In response to concerns from police officers, we expanded some protections for officers: the compromise language clearly states that municipalities pay for all legal fees and damages. Officers will not have to pay out of pocket for a lawsuit unless they have engaged in highly egregious conduct — and even then, they would only have to pay after the case was over, if the municipality asked for reimbursement. The bill we passed actually decreases the circumstances under which an officer would pay out-of-pocket, while increasing the circumstances under which a municipality will have to pay a victim. This creates a proper incentive for municipalities to set high standards for hiring, training, and overseeing their officers, and the bill overall gives them the tools to do that, including (for the first time ever) the ability to more easily fire officers who continually are subject to disciplinary issues.
These changes to qualified immunity should have little to no effect on policing here in the Northwest Corner. Our troopers will not have to procure any additional insurance for their own personal liability. We have strong and constructive relationships with our state and resident troopers, and I expect this to continue. Our towns are already subject to liability in a number of areas, and a task force will look into whether the implementation of the police civil liability provisions will have any impact on the cost or ability of a municipality to maintain its liability insurance. The task force will submit its recommendations to the Judiciary Committee by January 1, 2021.
Our special session began at 11 a.m. on July 23, with most legislators sequestered in their offices to keep social distance. We watched the proceedings in the House chamber on live video stream and voted using our computers. The office halls were empty and silent. Outside the building, advocates and protesters clustered in different groups throughout the day.
It took eight hours to pass the first three bills we were considering (expanding telehealth, capping insulin costs, and expanding the ability to vote by absentee ballot in the general election in November). Though each passed with no more than five opposing votes, the absentee ballot bill generated a lengthy debate, with many defeated amendments.
Official debate on the police accountability bill began after 1 a.m. It alone took eight hours of deliberations before it passed. That sounds like a lot, but it’s only the tip of the iceberg in terms of the discussions, negotiations, and drafting sessions that went into preparing both the original bill and its revised version that was voted on.
The Judiciary Committee held a 12-hour listening session on the draft bill the previous Friday, July 17, which included a lot of fervent testimony on many aspects of the then 65-page bill. I was one of a small handful of legislators who listened to the entire hearing. It was invaluable, both to hear the specific concerns and fears of the proponents and critics of the bill, and also to feel the emotion with which those passions were conveyed. I spent most of the following day on the phone with legislators who wanted to hear my take on the testimony and my suggestions on whether and how the bill should be amended before it went to a House vote. I reached out to local police officers and advocates to drill down deeper than the rhetoric and into the specifics of their concerns and how to address them.
I came out of that hearing and the follow-up conversations with profound respect for the bipartisan Judiciary Committee leadership that had crafted the original bill over many hours of Zoom meetings, and a renewed sense of the importance of this bill. A key element — the enhanced tools to eliminate problem officers from the force — was something both police leadership and reform advocates were asking for.
But I also had several concerns about the draft bill. For one, the bill required mental health screenings for all officers, and the language and process seemed punitive rather than therapeutic. In my time in the legislature we have passed several pieces of legislation aimed at providing resources for treating mental health, rather than stigmatizing it, and this was out of step with those efforts. For another, it required dashboard cameras on police vehicles beyond patrol cars, where it seemed unnecessary and duplicative. Also, the timetable for implementing tightened restrictions on the use of lethal force was too short to allow for appropriate training. And it eliminated the ability of police officers to assist during their off-duty hours in a capacity of traffic control, which historically has been a significant source of income for police officers.
And then there was the proposed Section 41, on qualified immunity. This is a complicated topic. Judiciary bills are often complex and can include impenetrable legal language. Even short sections of bills often use terms that encompass 100 years of judicial interpretation. But this short section of a long bill was particularly complicated. The draft bill proposed eliminating the defense of “qualified immunity,” a judicially created doctrine protecting police from personal liability when they commit constitutional violations. As currently interpreted, qualified immunity has made it extremely difficult to bring cases against a police officer for depriving someone of their civil rights, and is the subject of serious bipartisan criticism and reform efforts at the federal level. (For more information, read this article.)
The proposal to eliminate the defense was a big change. The police officers and leadership I spoke with were afraid that an act taken in good faith, in the heat of the moment, could mean financial ruin for themselves and their families. This in turn could hurt the ability to retain good officers and recruit new ones.
I took my concerns to the leadership of the Judiciary Committee, who quickly made amendments to the bill that addressed all of them, except qualified immunity: that was now the subject of heated discussions across the entire legislature. The House Democratic Caucus held two multi-hour calls to discuss it, which were raw and emotional. The Moderate Caucus, the Progressive Caucus, the Black and Puerto Rican Caucus, to name just a few, were all having their own conversations, as were all kinds of other intersecting groups of legislators. The relationships and reputation I had built up turned out to be quite valuable and I was included in many conversations including a range of disparate views.
The vote counting began, when leadership reaches out to members to figure out whether there is enough support for a bill. When asked for my position, I told my leadership that while I supported the bill as a whole, I could not support the total removal of qualified immunity as written. I pressed for a compromise but was told it was too late, given the heated positions being taken up on the issue, which did not have much room for nuance. Undaunted, I did some more research, and talked to the vice chair of the Judiciary Committee, and he and I swapped ideas that could reform qualified immunity rather than getting rid of it.
Finally, we came up with a proposal to significantly amend Section 41 — reforming, rather than eliminating, qualified immunity. The new section redefined the defense, returning it to the version that was in existence from 1967 until the early 1980s, which protected officers who made reasonable mistakes, but no longer barred legal suits, even in outrageous cases of police misconduct, merely because there was no previous case with almost exactly the same facts where a violation was found. It protected individual officers from any additional financial liability. The bill actually decreases the circumstances under which an officer could pay out-of-pocket, while increasing the circumstances under which a municipality would have to pay a victim.
Also critical was an agreement to delay the effective date of this section to July 2021, and a new Section 42, which charged a task force with looking further into the consequences of these changes for municipalities and reporting back to the legislature so that changes could be made if needed before the legislation took effect.
By the time the special session began on Thursday, substantial amendments had been made to the bill, and having worked for and been part of making those changes, I was prepared to support it: it was a substantial and hard-won compromise. During our debate on the first three bills of the special session, new rounds of discussions were taking place on this bill, as legislators tried to digest the new (and still complicated) language that added another six pages to the bill. This was complicated by the fact that the rhetoric outside the building had not changed: some advocacy groups became hard to reach because they had shifted from negotiations to holding rallies.
It’s worth taking a minute to focus on that rhetoric. Some of it was, and remains, hurtful and scorched earth. In speeches, on social media, and even in some personal conversations between groups of legislators, I have specifically been told, “If you vote for this bill, you don’t care about my life.” I have also been told, “If you vote against this bill, you don’t care about my life.” If you’re not with us, you hate us. Rallies and social media, in particular, are not good places to explain detail and complexity: when the rhetoric is heated on both sides, compromise is not rewarded because it can expose you to personal criticism from both sides. And the rhetoric did not change as the bill changed: once switched on, it’s hard to turn it down.
During the course of the debate on the bill, we had two votes. The first was on an amendment to remove Sections 41 and 42 from the bill: having worked so hard to get that compromise, I voted against the amendment. Removing these sections would have taken qualified immunity off the table, leaving the same victimized communities with the burden of pressing the task force to raise a difficult issue in the face of the legislature’s refusal to act. The compromise language keeps the issue squarely on that table, and Section 42 explicitly charges the task force with studying any financial consequences that may arise from it (and reporting to the legislature before the section takes effect). Both sides would have to remain engaged.
As we could only vote from our offices, every time they “opened the board,” the electronic tally board in the House chamber that lists every legislator’s name in green for a yea and red for a nay, silence fell. The leaders turned off the sound feed from the chamber while we voted, which takes several minutes. Usually, that voting period is filled with chatter on the House floor as we all get up from our desks and watch together as that board lights up, texting legislators who haven’t voted to remind them to get back to the chamber, talking to other legislators about this bill or the next one. The silence and being alone in my office felt very strange. Several of us fiddled with the volume on our computers just to make sure we hadn’t lost the feed. We texted and called one another, and we counted and recounted the red and green lights on the board as they slowly filled up. The vote ended in a 72-72 tie, which meant the amendment failed. That doesn’t happen very often, and other long-serving legislators searched their memories to try to remember the last time.
One of the reasons that tie votes don’t happen very often is that usually the majority only puts forward bills that have the votes to pass, or at least ones that they have confidence about the outcome. This issue was different. Given the strong views on this one, our leadership decided to let it play out. No one, including our leadership, knew what the outcome was going to be. That was an intentional decision, and I applaud them for that. While I’m grateful for the usual work that goes into bringing our caucus together before we vote on important issues, sometimes you can’t do that. It’s important for everyone to put themselves on the record and express their positions with a vote. In a close vote like this, there’s no room for “tactical” votes, calculated to give you currency with a certain constituency even though you may personally support the contrary position. Each vote matters and you have to do what you think is right.
After the amendment failed, the final vote of the session was on the full bill, HB 6004, and it passed by a vote of 86-58. Many legislators took hard, principled votes that will expose them to significant criticism. A lot of that criticism will be misinformed about what we actually passed, but that is the nature of this business. Now it’s our job to explain it as best we can, and tackle future problems head on by making changes as necessary, as should always be the case.
If you have any questions or concerns about this bill or any of the legislation passed during the special session, feel free to reach out to me. firstname.lastname@example.org