LEGAL UPDATE 1/2021 – CONNECTICUT’S POLICE ACCOUNTABILITY ACT IN EFFECT .
One of the hot topics of 2020 was the issue of police accountability. In response to the incidents of police brutality across the country, many states have adopted new policy accountability laws, including Connecticut. On July 31, 2020, Governor Ned Lamont, signed into law House Bill No. 06004, An Act Concerning Police Accountability (“Act”), which became effective on October 1, 2020. Of particular interest is Section 41, which establishes a new cause of action against police officers who deprive an individual or class of individuals of equal protection or privileges and immunities under state law. This section also removes sovereign immunity and qualified immunity defenses in certain circumstances. Section 41 gives rise to such a cause of action resulting from incidents committed on or after July 1, 2021.
Below are (i) a summary of Section 41, (ii) a discussion of sovereign immunity and qualified immunity under current law, and (iii) the impact of Section 41 and related sections under the Act on those immunities, including financial implications for potential plaintiffs, individual police officers, municipalities, the state, insurers, and taxpayers.
SECTION 41 – NEW CAUSE OF ACTION AND CHANGES TO SOVEREIGN AND QUALIFIED IMMUNITY
Summary of Section 41
Section 41 consists of seven subsections. Of major importance are the following:
Subsection (b) of Section 41 of the Act provides that no police officer, whether acting alone or in conspiracy with others, “shall deprive any person or class of persons of the equal protection of the laws of this state, or of the equal privileges and immunities under the laws of this state, including, without limitation, the protections, privileges and immunities guaranteed under article first of the Constitution of the state.”
Subsection (c) establishes a new cause of action for any person “aggrieved by a violation of subsection (b).” Such action may be brought for equitable relief or for damages to the Superior Court where it shall be tried before a jury.
Subsection (d) provides that governmental immunity shall only be a defense to a claim for damages when, at the time of the conduct complained of, the police officer had an objectively good faith belief that such officer’s conduct did not violate the law. There shall be no interlocutory appeal of a trial court’s denial of the application of the defense of governmental immunity. Governmental immunity shall not be a defense in a civil action brought solely for equitable relief. (Emphasis added.)
Subsections (e) and (f) of Section 41 of the Act provides that police officers will not be personally responsible for the costs of defending claims or lawsuits brought against them (including attorney’s fees) or paying any judgments entered against them “by reason of any act undertaken by such officer while acting in the discharge of the officer’s duties” unless the officer “has a judgment entered against him or her for a malicious, wanton or wilful act”. If such a judgment is entered, the officer will be required to reimburse any defense costs and will be personally responsible for any monetary judgment. Section 41 (e).
Subsection (g) limits the time for bringing such action to one year after the date on which the cause of action arose.
Summary of Existing Sovereign Immunity and Qualified Immunity Law with Respect to Law Enforcement
Sovereign Immunity Defined – Existing Law
Under Connecticut’s common-law sovereign immunity doctrine, the state cannot be sued without its consent. Chapter 53 of the General Statutes sets forth circumstances when claims may be brought against the state. “Not only have we recognized the state’s immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state…. Exceptions to this doctrine are few and narrowly construed under our jurisprudence.” (Citations omitted; internal quotation marks omitted.) Jezouit v. Malloy, 193 Conn.App. 576, 584 (2019).
The “criteria to determine whether an action is, in effect, one against the state and cannot be maintained without its consent: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability.” (Internal citations and quotations omitted.) Miller v. Egan, 265 Conn. 301, 308 (2003). By statute, state officials and employees are immune from personal liability when discharging their duties and acting within the scope of their employment. Conn. Gen. Stat. § 4-165. Under current law, there is no immunity from personal liability for wanton, reckless or malicious acts by state officers and employees. Id. The Act does not change this.
Qualified Immunity Defined
“Although historically “‘[a] municipality itself was generally immune from liability for its tortious acts at common law; Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984) … [municipal] employees faced the same personal tort liability as private individuals.’ Gordon v. Bridgeport Housing Authority, [208 Conn. 161, 165, 544 A.2d 1185 (1988)].” Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). Over the years, however, “[t]he doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees.” Burns v. Board of Education, supra, 228 Conn. at 645, 638 A.2d 1. Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. Id. “Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.” Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982). In contrast, “‘[m]inisterial’ refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176 (1975).”
Mulligan v. Rioux, 229 Conn. 716, 727 (1994).
Qualified immunity “shields government officials performing discretionary functions … from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (Emphasis added.) Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The Second Circuit has adopted a two-part test for granting qualified immunity. First, is whether a plaintiff suffered a violation of a clearly established constitutional right. Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002). Second, is “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. Generally speaking, most claims against a municipal police officer alleging the officer violated the claimant’s right to equal protection of the laws of this state, or of the equal privileges and immunities under the laws of this state, including article first of the state’s Constitution will arise from discretionary actions by the officer, which are currently barred by qualified immunity.
Generally, the state and municipalities must reimburse their employees for financial losses arising out of legal proceedings when the employee was acting in the discharge of the employee’s duties. Conn. Gen. Stats. §§ 4-165, 7-101a and 7-465.
Implications of New Act for State Agencies and Municipalities
Standard for Interpreting the New Cause of Action
Any claims or actions pursuant to this new (Section 41) cause of action will be subject to the well-established legal principle that statutes which seek to limit or remove sovereign immunity are strictly construed. When there is any doubt about meaning or intent the statute is to be given the effect which makes the least, rather than the most, change in sovereign immunity. State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 451-452 (2012).
Governmental Immunity Law that Remains Unchanged
The Act does not change existing law which already prohibits application of sovereign and qualified immunity for wanton, reckless or malicious acts by police officers. Those exceptions to immunity which expose governmental employees to personal liability remain. Thus, existing case law that defines what actions are considered wanton, reckless or malicious will remain important.
The Act continues to protect officers from personal financial loss (except in wanton, wilful or malicious circumstances), however, the financial burden from these newly authorized lawsuits will fall on municipalities, the general fund, and applicable insurers.
Areas of Significant Changes to Governmental Immunity Law
(a) No immunity defense where Plaintiffs seek solely equitable relief.
Significantly, the Act eliminates of any immunity defense if the plaintiff is seeking solely equitable relief. Equitable remedies include injunctions, specific performance, and restitution. There may be an influx of actions seeking equitable relief as a result of (Sections 38 and 39) provisions which prohibit law enforcement units from imposing quotas on police officers to issue pedestrian citations filed by individuals who reside in communities where (a) pedestrian citations have historically met community budgetary needs and (b) the police departments fail to implement and enforce changes in accordance with the Act.
If the plaintiff prevails in such an action against an officer and is awarded equitable relief, the entity employing the officer will be financially responsible for the officer’s defense costs unless the judgment, as entered, finds the officer engaged in “malicious, wanton or wilful” behavior. Whether the costs associated with complying with the equitable relief awarded will be covered by insurance or paid directly from the governmental entity’s coffers will depend upon the coverage provisions of the applicable policy.
“Consent searches” may be a ripe area for individuals seeking equitable relief if officers and law enforcement departments are slow to comply with new search limitations. Sections 21 and 22 of the Act limit “consent searches” of persons and motor vehicles and the types of documents individuals can be requested to produce in stops made solely for motor vehicle violations.
(b) Ministerial – Discretionary Distinction Eliminated
Another significant change is the elimination of the ministerial/discretionary distinction which currently determines when, and if, qualified immunity applies to certain actions by a municipal police officer. Under this distinction, a municipal employee is liable for improperly performing ministerial acts, but has a qualified immunity in the performance of supervisory or discretionary acts. Under the Act, a claim will no longer be summarily resolved in favor of a police officer just because the officer was exercising discretion when performing the act giving rise to the plaintiff’s claim.
(c) Immunity, when available, based upon officer’s objectively good faith belief that officer’s conduct did not violate the law.
The most significant impact Section 41 will have on governmental immunity is that, when it can be raised as a defense, the defense will be limited to damages actions where a police officer has an objectively good faith belief that such officer’s conduct did not violate the law. This new standard is closely related to Section 29 of the Act, which defines and outlines when physical force and deadly force can be used by police officers, and Section 30 of the Act, which mandates other officers intervene to prevent the use of excessive force by another officer and report said excessive force incident. Section 29 changes existing Connecticut law where a “subjective-objective” test has been used to evaluate whether an officer was justified in using physical deadly force. See, State v Smith, 73 Conn. App. 173, cert den. 262 Conn. 923 (2002). Clearly any suits under the new cause of action alleging violation of equal protection by an officer’s use of excessive and/or deadly force will look to the definitions of acceptable and unacceptable force contained in those sections to as the standard of care in order to prove his/her case.
(d) Militia Immunity May be Available in Crowd-Control Situations
For new actions arising out of a crowd-control incident, it will be important for the defendant to closely examine the facts in light of Sections 4, 5 and 6 of the Act, to determine if there are grounds for obtaining governmental immunity. These sections focus on development of a crowd management policy and training. Section 6 provides police officers with the same privileges and immunities enjoyed by organized militia when the officers manage crowds provided the officers are in substantial compliance with the crowd management policy and training.
(e) Changes to Body and Dash Camera Laws will Impact Litigation Under New Action
Changes to existing statutes which govern body-worn cameras, a new requirement of dash cameras, as well as changes to camera recordings retention and when recordings are subject to Freedom of Information Act (FOIA) disclosure under Section 19, enhance the Plaintiffs’ evidentiary tool-box. Removal of governmental immunity and the greater access to real-time recordings of incidents can be expected to lead to an increase in suits for incidents that historically have not
“made the news.”
 Article first of the Constitution of the State of Connecticut is a Declaration of Rights which provides that “the great and essential principles of liberty and free government may be recognized and established.” Twenty specific rights and privileges are set forth in separate sections under Article first. Several of those rights and privileges are listed here. Article first, Section 1 states that all men are equal in rights and no man or set of men are entitled to exclusive public emoluments or privileges. Section 4 provides that “[e]very citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.” Section 7 proclaims “[t]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” “No person shall be arrested, detained or punished, except in cases clearly warranted by law.” Art. 1, § 9. Citizens have the right to free assembly in a “peaceable manner”. Art. 1, § 14. “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.” Art. 1, § 20, as amended by Art. V & Art. XXI of the Amendments to the Constitution of the State of Connecticut.
LEGAL UPDATE 6/2020 – The Connecticut Appellate Court held that no duty is owed by a patient to avoid negligent conduct that causes harm to a medical provider while the patient is receiving medical care from that provider.
Attorney Janis Malec won an appellate argument in favor of her client in a case of first impression in Connecticut. She was assisted on the brief by Attorney Mary Ryan. Below is a summary of the case, Kateri Streifel v. William R. Bulkley, 195 Conn. App. 294 (2020).
Summary of the Facts
The plaintiff was a Registered Nurse working in a hospital and the defendant was a patient at that facility. The plaintiff filed a lawsuit against the defendant claiming that the defendant caused her injuries when he attempted to sit up from a supine position on an examining table, lost his balance, grabbed onto her, and held onto her as he fell back onto the examining table. The plaintiff also claimed that the defendant was “engaging in horseplay while on the examining table.”
On or about February 25, 2016, the plaintiff filed a Complaint against the defendant. The Complaint contained one negligence count. Defendant filed his Answer and Special Defenses on October 4, 2016 denying the allegations of negligence and raising the defense that he owed no duty of care to a paid caregiver because he was a patient in her care at the time of the alleged incident. Subsequently, on November 9, 2016, the defendant moved for summary judgment because the plaintiff failed to state a valid cause of action. The defendant filed a Memorandum of Law in support of his motion, setting forth the basis for his position that “Plaintiff did not have a viable cause of action because allowing a health care provider to recover against her patient is contrary to public policy, as established by applying the four-part test in Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474 (2003).”
On December 19, 2016, the plaintiff filed an Objection to Summary Judgment. No depositions had been taken and only standard discovery had been conducted. Neither party filed supporting affidavits. Following oral argument, the court granted the Defendant’s Motion for Summary Judgment by way of a Memorandum of Decision dated December 28, 2017.
On January 9, 2018, Plaintiff filed an appeal. Defendant’s reply was filed on March 14, 2019. The case was argued on September 17, 2019. On January 14, 2020, the Appellate Court affirmed the decision of the trial court. Kateri Streifel v. William R. Bulkley, 195 Conn. App. 294 (2020).
On March 4, 2020, Plaintiff/Appellant filed for Petition to the Connecticut Supreme Court. Defendant/Appellee filed his opposition on March 18, 2020. On March 25, 2020, the petition for certification was denied.
Summary of the Issues
Plaintiff/Appellant claimed that “the trial court improperly rendered summary judgment because (1) the court should have decided the defendant’s motion for summary judgment as a motion to strike so as to afford her the opportunity to replead a legally sufficient cause of action, (2) determining whether a duty existed involves a question of fact for the jury to decide, (3) the trial court’s application of the Murillo test to this case improperly invoked the abolished doctrine of assumption of the risk because of its analysis of the plaintiff’s status as a nurse and (4)assuming that the determination whether a duty exists is a question of fact for the court to decide, the court incorrectly determined that imposing a duty of care on the defendant while the plaintiff was furnishing medical care to him was inconsistent with public policy.” Kateri Streifel v. William R. Bulkley, 195 Conn. App. 294 (2020).
The Appellate Court rejected the plaintiff’s arguments, holding:
1. The plaintiff waived any claim that the trial court improperly failed to treat the motion for summary judgment as a motion to strike because she failed to object to the trial court deciding the matter through summary judgment and, in the alternative, the plaintiff failed to offer to amend her complaint should the court determine the allegations were legally insufficient.
2. Determination of whether a duty of care existed under the circumstances of this case was a question of law that the court was permitted to decide through summary proceedings. Furthermore, the Appellate Court held that the question of law that no duty existed could be decided solely on public policy grounds.
3. Applying the test set forth in Murillo v Seymour Ambulance Assn, Inc. was not inconsistent with the abolition of the doctrine of assumption of the risk by plaintiff as a nurse, to deny her a recovery, because in cases involving medical treatment the Connecticut Supreme Court continues to consider the normal expectation of the participants in the activity, including their statuses.
4. The Appellate Court declined, as a matter of law, to recognize there is a duty owed by a patient to avoid negligent conduct that causes harm to a medical provider while the patient is receiving medical care from that provider, thus it found the trial court did not act inconsistently with public policy.
In applying the public policy considerations set forth in Murillo, the Appellate Court found they weighed against recognizing a duty owed by the defendant. Specifically, (a) the normal expectations of registered nurses and patients under the circumstances; and (b) balancing the “unlikely enhancement” patient and provider safety by recognizing such a duty against potentially higher medical care costs for patients caused by increased litigation, potentially jeopardizing patient medical confidentiality, the provider’s access to workers’ compensation as a remedy, and the lack of any other jurisdiction recognizing such a duty, considered together all weighed against recognizing such a duty. Furthermore, the Court stated its decision was based on its conclusion that the goals of providing uninhibited access to medical care, encouraging patients to share sensitive information without fear of loss of confidentiality, and the safety of both providers and patients are all important to the integrity of the Connecticut health care system.
The Court took pains to point out that in determining the defendant patient owed no duty of care to the plaintiff nurse, the opinion does not apply to acts by a patient that are intentional or reckless, wanton or malicious. In reaching its decision, the Court was not opining on injuries that may occur outside the context of receiving medical treatment. “Indeed, paramount to our decision that the defendant did not owe the plaintiff a duty of care to avoid negligence in the present case is that the plaintiff sustained her injuries while she was providing medical care to her patient, the defendant.”