The Empire Strikes Back on Qualified Immunity

It appears that there will be a push in the state Legislature to end qualified immunity for police officers. Qualified immunity makes it almost impossible to sue officers for use of excessive force; it’s become a target for reformers in the post-George Floyd era of, well, at least talking about police accountability.

It has the support of Senate Judiciary Committee Chair Dick Sears, the single most influential gatekeeper on justice-related legislation. Senate President Pro Tem Becca Balint is also signed on, another big positive.

Michael Schirling, on the other hand, is here to tell you it’ll happen over his dead body.

At the Tuesday Covid briefing, Gov. Phil Scott fielded a question about ending QI by immediately tossing it to Schirling, his public safety commissioner and former chief of police in Burlington.

Schirling, speaking on behalf of the administration, made his position quite clear.

“We are gravely concerned about the impact of that potential legislation, and we’re working with a variety of partners and stakeholders to craft a cogent and comprehensive assessment for the Legislature of the potential impacts and downsides of proceeding in that fashion.”

You don’t usually get an administration official cranking it all the way up to “gravely concerned” at this point in the session. It’s usually something milder, like “we have concerns, but we’ll see where it goes.” In this case, Darth Schirling has been sent forth by Emperor Philpatine to make sure the bill never sees the light of day.

The rest of Schirling’s statement is delivered in bureaucratese, but look at what he’s saying. He’s going to marshal all the lobbying power of the law enforcement community against any legislation ending QI. Together they will assemble, err, cobble together, err, if necessary make up, a “cogent and comprehensive assessment” in support of his preconceived position. You can bet the law enforcement brain trust will devise a cornucopia of “potential impacts and downsides.”

Law enforcement lobbying is highly influential. Show up in a uniform, lawmakers snap to attention. There are few groups with more Statehouse pull than law enforcement. One is the Vermont League of Cities and Towns.

Which also wants to preserve QI.

Even before Schirling’s statement, I thought the bill stood every chance of being severely watered down if not killed entirely. Maybe they’d create a study commission at most. I’ve seen justice reform legislation come under the combined fire of the law enforcement community. It rarely ends well for the legislation. This session, we’re sure to have a phalanx of top police officials in the room (virtual or otherwise) whenever QI is on the table. On top of all this, the 2022 session looks to be jam-packed, giving lawmakers every opportunity to delay uncomfortable debates.

As with so many other Black Lives Matter-era policy proposals, QI reform is likely headed for the dustbin. It’s a shame. Policing is difficult work and God knows I’m not capable of it, but some officers are getting away with murder, sometimes literally. QI is part of the problem.

We’re always ready to discuss the excesses of law enforcement. We’re quick to bemoan obvious cases of police violence. But we are rarely, if ever, prepared to get stuck in and do the dirty work of fixing a deeply flawed regime. For all the protests and furrowing of brows that followed the killing of George Floyd, precious little has actually been accomplished. When the top cop is “gravely concerned” and the rest of his fellows are ready to pile on, I don’t expect any different for QI reform in the Statehouse.


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