HB 111, the dangerous bill that would strip municipalities of many immunities and defenses in tort claims, is back, but sporting a new number. Although the House already defeated the bill once, a bare majority of the House Judiciary Committee voted this week to consider the substance of the bill as an amendment to SB 96, an unrelated Senate bill. The committee has scheduled a hearing on non-germane Amendment #2021-1244h for next Tuesday, May 18, at 9:00 a.m. Please sign in opposition to the non-germane amendment to SB 96. (Instructions at the end of this article.) 

In support of the amendment, Vermont ice cream magnates Ben Cohen and Jerry Greenfield spoke at a press conference this week in Concord. According to InDepthNH.org: 

Cohen said he supports New Hampshire’s efforts to end qualified immunity, explaining what it means. 

“That’s a legal doctrine that essentially says cops are above the law,” Cohen said. “We want to make it so that cops are accountable for their actions just like any other person.”

Cohen said if he punched someone in the face, he could be sued, [but] “If a cop hauls off and punches you in the face, your case will be thrown out of court on the basis of qualified immunity which essentially says cops cannot be held accountable.” 

We are not sure why the legal analysis of an out-of-state ice cream vendor should carry any weight in the New Hampshire legislature. Everything Mr. Cohen said is incorrect. Qualified immunity does not say that “cops are above the law.” Police officers are more accountable for their actions than “any other person.” Here is what will happen “if a cop hauls off and punches you in the face”: 

• The cop will face criminal prosecution for simple assault, just like “any other person.”
• You can file a common-law tort action for assault against the cop and recover damages for your injuries, just as you could against “any other person.”
• In addition, you may be able to sue the cop for damages and attorney fees under a federal statute, 42 U.S.C. § 1983, for violating your federal constitutional rights, which you can not do against “any other person.” Only police officers and other government agents are subject to liability under section 1983. 

The dreaded “qualified immunity” that has been the subject of endless, uninformed condemnation is a federal doctrine that applies only in section 1983 actions. It does not protect police officers, or anyone else, from criminal prosecution or from a common-law tort claim under New Hampshire law; nor would it protect a police officer from liability under section 1983 for punching someone in the face without provocation. 

The law may be different in Vermont, but in New Hampshire, if a police officer is charged with criminal assault, he or she has no defense that that any other person would not have. If the injured person files a tort claim, the officer is subject to liability for damages, just like anyone else, unless it can be established that the officer did not act in a “wanton or reckless manner.” 

What, then, is the problem in New Hampshire that so urgently requires a legislative fix? Well, even some of the bill’s supporters acknowledge that there is none. According to former supreme court justice and trial lawyer Chuck Douglas, the one person with a background in New Hampshire law who spoke in support of the amendment at this week’s press conference, “Fortunately in New Hampshire, this is not a widespread problem; there is not systemic police abuse.” Further, in the three months that this issue has been debated in the legislature, in the press, and on social media, no one has cited a single case in New Hampshire in which qualified immunity or any other immunity led to a bad result. 

Rather, HB 111, like so many other bills this year, is part of a national agenda. That may explain why most of the support has come from out-of-state advocacy groups (and ice cream vendors). (See “Arlington Comes to Concord,” below.) We believe the legislature should focus on New Hampshire problems. Dismantling tort law in New Hampshire is not going to curb police misconduct in Minnesota. 

Getting back to the proposed amendment—it is no better than the original bill, HB 111, which we discussed at length in Legislative Bulletin #14. The amendment makes a few changes, but they do not help. Strangely, the amendment says that in a claim for violation of constitutional rights by a police officer or other government agent, the individual agent “shall not be named as a defendant” and shall not be financially liable—only the government employer will be liable. This makes no sense—it reduces accountability for government agents and makes the employer (read, the taxpayers) an insurer for the actions of the few rogue employees who do exist. 

As with the original bill, the fundamental problem is that the amendment eliminates existing immunities and defenses (not just qualified immunity) so that the state or a municipal employer may be forced to pay damages, and attorney fees, when an employee’s conduct results in a claimed constitutional violation, even though the employee acted in good faith and even though a reasonable person in the same position would have believed the conduct was lawful. This puts municipalities at risk of liability for every-day decisions made not only by police officers, but by firefighters, other emergency responders, building inspectors, town managers, recreation personnel, library employees, election workers, and just about anyone else imaginable. 

Finally, by attaching the amendment to an unrelated bill, SB 96, the House would be jeopardizing that bill. We do not have a position on the underlying bill, but those who support it are concerned about the amendment. SB 96 implements several recommendations of the governor’s Commission on Law Enforcement Accountability, Community, and Transparency (LEACT), and it has broad bipartisan support, having passed the Senate 24-0 with strong backing from the governor. Attaching this controversial amendment puts the entire bill at risk—which is highly ironic, given that the underlying bill is about police accountability. 

Please sign in to oppose the amendment to SB 96.  You can do this anytime between now and Tuesday at 8:00 a.m. Here’s how: 

• Go to the House remote testimony sign-in sheet.
• Click on the date of the hearing (May 18).
• Select “House Judiciary.”
• Choose “9:00—SB 96.”
• Indicate your status and who you represent. (If you are an appointed official or municipal employee, you will need to indicate “a member of the public.”)
• Indicate “I oppose this bill.”
• Check the box that says, “Testimony is for non-germane amendment.”
• Continue to the next page, enter the required information, continue to the next page, and submit the form. 

Also, please contact members of the Judiciary Committee and ask them to vote against the amendment. As always, let us know if you have any questions. Thank you!