March 8, 2021
Congressman Chris Pappas
323 Cannon House Office Building
Washington, DC 20515
RE: H.R. 1280, George Floyd Justice in Policing Act
I write to you as the current NH Association of Chiefs of Police (NHACOP) President, which represents over 200 NH law enforcement agencies comprised of over 4,000 police officers who have dedicated their lives to protecting and serving Granite State citizens and visitors every day.
The NHACOP is disheartened to have read a press release on your website that indicated you voted in favor of H.R. 1280, the George Floyd Justice in Police Act. Your release indicates that you have had conversations with local NH law enforcement over the past year. Aside from your conversation with the Association's Board of Officers last year, we do not know to whom else you have spoken. Having been party to that Board conversation, I am confident the sentiments shared with you emphatically denounced any efforts to eliminate qualified immunity for police officers, not only nationwide but right here in NH. Moreover, you were provided sound justification as to why any calls to limit, reduce, or eliminate qualified immunity does not represent a constructive path forward when discussing police reform measures. In fact, such efforts would most certainly have far-reaching, injurious effects on the policing profession's ability to serve and protect communities, including the recruitment, hiring, and retaining of highly qualified individuals willing to perform the very challenging and difficult duties expected of them.
Ironically, your recent press release includes the phrases of "now is the time for us to make progress,' create a safer and more just society for all," and "seek to work together and create constructive change.'
The stark reality here is that by having voted in favor of H.R. 1280 you took a substantial step toward 'excluding," only law enforcement officers rather than "including" them in the process of working together. Qualified immunity shields all government workers, not just police. Repeatedly, federal courts have granted qualified immunity to government employees, including social workers, medical board officials, and corrections officers. Since 2005, the US Supreme Court has reviewed 20 lower court cases where qualified immunity was denied and have, every time, ruled in the government's favor. As well, the Court has repeatedly chastised lower courts for failing to use qualified immunity to shield government officials from personal liability. If H.R. 1280 is enacted as currently written, it would unwittingly codify qualified immunity as a defense for anyone who is not a police officer.
In fact, the very actions of removing qualified immunity is and will remain a perplexing dichotomy regarding the very purpose of protecting public servants from outlandish and frivolous lawsuits. What we do not see included in H.R. 1280 is any mention of the "absolute immunity" doctrine; a defense reserved for special classes of public officials who 'require' complete protection from civil actions such as prosecutors acting in prosecutorial roles, judges, legislative members performing such functions, and the President of the United States. These special classes, apparently, deserve reasonable protection from the public but police officers do not.
As an organization comprised of police executives, the NHACOP has consistently agreed that there are areas where the policing profession needs reform and where working in collaboration and unison with colleagues, constituents, and elected officials is prudent in order to recommend and develop meaningful solutions. Such areas of policing include but are not limited to disciplinary procedures, early warning systems, hiring practices, training and education standards, and use of force policies. The NHACOP also acknowledges that some reforms are beyond the reach of federal legislation, such as contractual bargaining agreements and state laws involving binding arbitration, which almost exclusively result in troubled officers being returned to duty after having been terminated by Chiefs. We have been party to many such discussions over the years and have maintained a willingness to actively listen and participate in meaningful discussions and potential resolutions. Most recently, the NHACOP had a representative on Governor Sununu's established LEACT Commission where all members reached equitable reform recommendations. We cannot stand idly by, however, while elected officials, both nationally and locally, disregard our input when asked for it.
In February this year, NH HB 111 (Establishing a Cause of Action Against the State to Protect Individual Rights) had a public hearing in which the bill's prime sponsor, Representative Berch, clearly articulated that it does away with qualified immunity, and that doctors and lawyers make split-second decisions and do not have immunity. Comparing the duties and tasks incumbent upon the men and women of law enforcement to those of doctors, lawyers, construction workers, engineers, etc. is grossly inappropriate without justification and devoid of basic common sense given the disparity of the duties and responsibilities of these professions. The NHACOP testified in vehement opposition to this bill, as it appears clear that individuals do not know the ramifications of dissolving qualified immunity, nor do they have an understanding regarding how this doctrine actually works.
As was shared by the NHACOP during the HB 111 public hearing, qualified immunity follows a two-part test: (1) has there been a constitutional deprivation, and (2) if so, did actors violate clearly established rights at the time of such violations. Therefore, part one of the test seeks to determine if facts presented regarding the conduct of officers violated the constitutional rights of plaintiffs, which must be based on facts most favorable to plaintiffs in their view. Part two of the test seeks to decide if rights were clearly established and, if so, how determined. This two-part test provides the public with the knowledge that there needs to be checks and balances regarding the reasonableness of decisions made by officers, which comes from the qualified immunity doctrine.
Law enforcement officers across the country are held to a higher standard of accountability than the rest of the population, which is how it should be. However, we should not forget that they are people, too. The same men and women bound by the same doubts and regrets everyone is. Some recognition across the country and here in NH for the conditions under which those men and women operate would certainly go a long way. They take risks in the field every day while living in a completely different world from many of the individuals and politicians who criticize them. Officers are constantly thrust into seemingly innocuous situations that unexpectedly turn into life and death struggles often instigated by the very individuals they are sent to help. These incidents become headlines across the country when officers are faced with having to utilize deadly force. We seldom, however, hear of situations in which officers, themselves, are the victims of unprovoked assaults or attacks, resulting in maiming or death.
Here in NH, we take great efforts to train our men and women to ensure the actions they take are justified, which, in many cases, requires them to place themselves in greater danger and risk. Policing is not an exacting science nor can it ever be when the components of the equation, human beings, are unpredictable. The US Supreme Court's numerous decisions underpinning qualified immunity are a recognition of the situations faced by police officers often during the worst of conditions. Eliminating qualified immunity does nothing to protect the public; rather it further imperils and undermines the split-second assessments made by officers, which has the propensity to lead to more tragedy.
There is a push across the country for police reform with a matching national narrative. Such talks include the cases involving George Floyd, Breonna Taylor, Eric Garner, Michael Brown, and others. Not one of those cases, however, which rightly led to increased scrutiny of law enforcement, involved qualified immunity.
By reviewing conventional and social media posts and listening to legislatures talk about the application of qualified immunity, it appears as if many believe that qualified immunity is a 'special immunity' for police; one that insulates law enforcement officers from liability cases to the extent that officers who commit egregious acts of misconduct are fully protected from liability. This cannot be further from the truth as it is an absolute gross misrepresentation of the law as it applies. Additionally, we have heard individuals say that qualified immunity encourages misconduct by law enforcement officers, which is even further from the truth. In the opinion of the NHACOP, the pushing of such a storyline is immoral and untruthful. Moreover, it is an opportunity by those who have opposed qualified immunity for years to now use such tragic events as a means by which to push legislative agendas while fully knowing that the maintaining or absolution of qualified immunity would have never prevented such incidents from occurring.
Here is what you, your fellow legislators, and the American people need to know about the doctrine of qualified immunity:
Society has an interest in allowing public officials to perform discretionary duties, unhampered by fear of second-guessing themselves and possible retaliatory lawsuits. It encourages government employees to perform their duties without fear of unwarranted lawsuits and instead of spending time and resources defending such claims.
Reducing or limiting it will not reduce excessive force claims or allegations.
It grants officers the discretion to make split-second decisions, which is necessary in today's day and age.
When there may be egregious excessive use of force events leveled at police officers it does not become an issue in litigation because it would not survive the concept of "issue of fact." If ripped apart at its core, police officers will refuse to make decisions and preform discretionary actions for fear of being wrong.
Qualified immunity protects our judicial system, taxpayers, and the rights of all government employees, not just law enforcement. As law enforcement professionals, we submit that the elimination of such a doctrine will have dire consequences if you do not keep these facts and our judicial process in mind.
In addition to our qualified immunity concerns, H.R. 1280 seeks to modify use of force standards utilized by federal officers insomuch as deadly force can only be used as a last resort once all other reasonable alternatives have been exhausted. If state and local agencies do not meet this new federal standard then any possible funding will be substantially limited. The NHACOP opposes modifications to use of force standards clearly established in Graham v. Connor (490 U.S. 386). To require use of force by police only when "necessary" presumes a level of officer influence over circumstances that do not exist and strives to create levels of perfection that cannot be obtained. Additionally, changing the standard to only when necessary" jeopardizes officer safety and, in turn, community safety, as officers will begin to second guess, hesitate, and become potentially confused during dangerous situations where the lives of bystanders as well as their own are in jeopardy.
A promulgated narrative has arisen that suggests law enforcement officers are pre-disposed to using deadly force when not necessary. The NHACOP Board of Officers, with more than a century of collective law enforcement experience, will unequivocally tell you that 99.9% of law enforcement officers will avoid using deadly force even when their own lives and safety are imperiled. Given the millions of daily police/ public contacts in America, H.R. 1280 strips the last vestiges of public support from a vast majority of law enforcement officers in a foolhardy attempt to influence a select few.
H.R. 1280 also seeks to create a national police misconduct registry for sustainable misconduct complaints, which would also include complaints in which law enforcement officers have been exonerated and complaints that have been determined to be unfounded or not sustained. Additionally, the establishment of a publicly available and searchable National Police Misconduct Registry is proposed to include federal, state, and local law enforcement personnel. The NHACOP supports the concept of a police misconduct registry; however, the inclusion of such claims that have been determined to be unfounded or not sustained have no place in such a database, particularly where it would be available and searchable by the public as it would present a number of officer safety concerns. The inclusion of unfounded and not sustained findings in such a database could significantly damage police officer careers, particularly if those findings are the result of filed frivolous and/ or untruthful complaints by the public.
Additionally, H.R. 1280 seeks to stop the transfer of equipment to law enforcement agencies through the currently established 1033 Program. Many NH police agencies with dwindling municipal budgets or no funding will be adversely affected due to their inability to obtain necessary equipment through established policies and protocols in order to aid in the protection of community citizens, police officers, and other important local infrastructure items. Furthermore, much of this equipment, which is highly expensive, is defensive in nature and designed to protect officers trying to diffuse deadly situations. Eliminating this program effectively downshifts the cost of such equipment onto your NH constituents. The NHACOP supports close programmatic controls and justifications for the transfer of federal property and equipment to state or municipal law enforcement. It is shortsighted to eliminate an effective program such as this where equipment procured has saved the lives and money of your constituents.
We respectfully ask that you look objectively, impartially, and without political influence at the issues facing law enforcement. Look, too, at peer-reviewed, evidence-based empirical data that rests upon sound justification regarding police use of deadly force against persons of all races and colors and balanced against the millions of police/ public contacts that produce no headlines or tragedies. Closer to home, review the effectiveness of and results by NH law enforcement in ensuring the safety of its citizens and visitors comprised of all races, colors, genders, and socioeconomic statuses. Upon doing so, you will find that public safety in NH is conducted in the manner it should be without deference to anyone and that state and local police leaders have already incorporated necessary changes within their respective agencies. H.R. 1280, however, stands ready to have a grave impact on how NH law enforcement will be able to meet the challenges of the 21st century.
To conclude, we certainly know that the law enforcement profession and the men and women who serve are far from perfect in any sense; an acknowledgement that they represent the very society they are charged with helping. Now, more than ever, police officers are called upon to deal with societal issues they are ill equipped to fix. Society relies on law enforcement to insulate and protect all from harm. An understanding by all of society, including elected officials, of these circumstances is required in order for police to continually face the uncertainty of their chosen profession.
Anthony J. Bean Burpee
Police Chief, Gilford Police Department