Legislators in Maine have joined lawmakers in more than two dozen states and the U.S. Congress in considering ending or limiting qualified immunity, the legal defense often used to shield police officers from lawsuits.
Qualified immunity has no bearing on whether a prosecutor charges a police officer with a crime, but it does affect whether that officer can be sued for civil rights violations. The U.S. Supreme Court created the concept more than 50 years ago to protect government employees from frivolous litigation, but it has expanded in case law over decades. It has come under new scrutiny, especially since the murder of George Floyd in Minneapolis last year, as activists push for greater accountability when police officers use excessive force.
Two bills proposed this year in Maine would address this doctrine in state courts, and the Judiciary Committee heard more than four hours of conflicting testimony on both Thursday. One, L.D. 214, would eliminate qualified immunity entirely for police officers, sheriffs and other law enforcement officers in Maine. The other, L.D. 1416, would deny qualified immunity to officers who have received training and work for departments that have use-of-force policies yet still violate constitutional rights.
“It’s really important for us as a state to work together to improve the qualified immunity standard and have a really serious conversation about when law enforcement officers should or shouldn’t be liable,” said Sen. Anne Carney, a Democrat from Cape Elizabeth and the sponsor of L.D. 1416.
More than 40 people testified on one or both bills Thursday. It was not clear how many civil rights lawsuits have been filed against police officers in Maine courts, or the number of times those officers have invoked qualified immunity and been successful.
Those in favor included the American Civil Liberties Union of Maine, the Maine Trial Lawyers Association and people who described their own experiences in which police used force. The committee also heard testimony in favor from national groups who are pushing to end qualified immunity across the country. Those against the proposals included law enforcement leaders like the Maine Sheriffs Association, representatives from police unions, officers and their spouses.
Supporters argued that police officers should be held accountable for civil rights violations and that the qualified immunity doctrine has evolved to create an insurmountable barrier for those claims. They also said these bills would restore faith in law enforcement because bad actors could more often be held liable.
“This legislation will level the playing field, so when our good people are victimized by the unlawful actions of the police, they will now be able to seek redress in the courts,” Rep. Jeff Evangelos, an independent from Friendship and the sponsor of L.D. 214, said. “Conversely, good police officers who do the right thing, abide by our laws and constitutional protections, have nothing to worry about.”
Dale Bois of Standish told the committee about her nephew, Jason Gora, who was fatally shot by police officers in February 2020. She said the officers turned a welfare check into a high-speed chase, and she believes his death could have been avoided. Bois did not say whether the family is pursing a lawsuit against those officers.
“Don’t give them a shield that says, ‘You’ll never be accountable,’” Bois said.
Opponents said officers should not have to worry about being sued when they make split-second decisions on the job, and other tools exist to hold bad actors accountable for violations of policy or law. They also argued that passing these bills would prompt officers to quit and make it harder to recruit new ones.
“A police officer can be doing the right thing at the right time for the right reasons, and bad things can happen,” Maj. Brian Scott of the Maine State Police said. “If and when that day comes, they should be afforded a reasonable level of protection. Qualified immunity basically means that if you do your job to the best of your ability, and you make an honest mistake in the official performance of your duties, that you may not be successfully personally sued and lose everything you worked for.”
People on both sides disagreed during their testimony about the possible financial impacts to individual officers should qualified immunity be ended. L.D. 214 would not cap the officer’s personal liability, but L.D. 1416 would set it at $10,000. Many opponents, especially individual officers and their family members, worry that their financial stability would be at risk.
“How many people are going to choose a career in law enforcement when one of the first things they learn at the academy is that any action they take could result in a lawsuit against them personally, with potential for monetary damages?” said Augusta Police Chief Jared Mills, who testified on behalf of the Maine Chiefs of Police Association.
But attorneys testified that employment contracts typically protect individuals from that type of financial liability, and government entities and their insurers cover those personal costs. They urged lawmakers to remove any cap on damages.
“In almost every case, indemnification clauses in the contracts that unions negotiate for their police officers require the state to foot the bill, not police officers personally,” said Michael Kebede, policy counsel at the ACLU of Maine.
Qualified immunity is a complicated legal standard. It blocks lawsuits against a government agent – like a police officer – from moving forward unless that person violated “clearly established law.” Today, that standard usually means that plaintiffs have to point to cases with nearly identical facts in order to be successful. The court can find that the defendant did break the law but still dismiss the lawsuit if there has not been a prior comparable case.
Last year, Colorado became the first state to block qualified immunity by statute. Connecticut and New Mexico have passed similar measures since then. The National Council of State Legislatures has reported that at least 25 states have considered bills to limit or end qualified immunity in the last year, although those proposals differ across the country.
While those changes could create openings for civil rights lawsuits in state courts, they would not have any impact on cases in federal courts. Congress is considering proposals to end or limit qualified immunity at that level, but it is not clear whether those measures can garner enough support to pass.
Qualified immunity only applies in civil cases, not criminal ones. While not directly related to the issue of civil liability, Evangelos used his testimony Thursday to publicly relay an allegation about the state’s handling of police shootings.
Evangelos cited a letter he received from a retired Waldoboro police sergeant, Leigh S. Abbott, who accused the longtime leader of the division of the Attorney General’s Office that investigates police shootings of telling a group of officers more than 20 years ago that they “had nothing to worry about” when it came to being investigated after a shooting.
“I remember hearing Brian (MacMaster) tell this class that as long as he was in charge of police officer-involved shootings that we had nothing to worry about as all shootings would be justifiable,” Abbott wrote. “That always bothered me and I reflect on it from time to time.”
Abbott, 75, wrote in the letter, however, that he has memory problems and struggles to remember dates and other parts of his service as a police officer.
MacMaster, reached by phone, categorically denied the allegation. “I’m not going to engage beyond that. It’s the most ridiculous thing I’ve ever heard.”
Abbott could not be reached for an interview. He retired from the Waldoboro police in 2003. He was arrested in 2011 and charged with child sexual abuse before pleading guilty to three counts of misdemeanor assault, the Lincoln County News reported.
Marc Malon, a spokesman for the AG’s office said that staff learned of Abbott’s allegation as Evangelos testified about it. The letter was hand-delivered to the office soon after.
“This is the first we have learned of this allegation,” Malon said in the statement. “The author of the letter makes a serious allegation and it will be given appropriate attention.”
“It is also important to note that while the investigation of a law enforcement officer’s use of deadly force is conducted by the Investigations Division of the OAG, the legal decision of whether said use of deadly force is justified is made by either the Attorney General or an experienced prosecutor in the office who has been delegated by the Attorney General to make the decision,” he added.
Staff Writer Matt Byrne contributed to this report.
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