October 7, 2003 98-R-0323
FROM: Lawrence K. Furbish, Assistant Director
RE: Immunity for State and Local Police Under Current State Law
This is a follow-up report to 98-R-0030, which dealt with whether an immunity provision in federal sex offender registration law would apply to state and local police. This report discusses whether any of Connecticut's current immunity or indemnification laws would apply to police engaging in sex offender registration activity under the state law (CGS § 54-102r, as amended by PA 97-183).
The law on liability of governmental employees is complex, and a great deal depends on the specific facts of a particular case. It seems likely that some of the situations in which a police officer might find himself regarding the sex offender registration would fall under the current immunity laws, while others might not.
Limitations exist under both statute and common law on the liability of the state and municipalities for the acts of their officials and employees.
Under the common law sovereign immunity doctrine the state cannot be sued without its consent. In response to this doctrine, the state has created a claims commissioner and a structure to process claims against the state. By statute, state employees are not liable for damage or injury that is within the scope of their employment; caused by the discharge of their duties; and not wanton, reckless, or malicious.
Municipalities have no sovereign immunity from suit, but when they act in performance of a governmental duty, they have a limited immunity from liability. This immunity does not automatically extend to officers or employees. Municipal officers and employees can be held personally liable for: (1) negligence in performing a ministerial act (one that is performed in a prescribed manner without the exercise of judgment or discretion); (2) negligence in executing a governmental act where imminent injury to a specific individual was foreseeable; and (3) wanton, willful, or malicious misconduct (acts manifesting a reckless disregard of the consequences or of the rights and safety of others).
The statutes require municipalities to indemnify or reimburse their employees for financial loss arising out of legal proceedings in certain circumstances, when the employee acted in the discharge of his duties. This could protect an individual police officer, but the town might have to pay if the officer was found negligent.
STATE EMPLOYEE IMMUNITY
The statutes specifically state that no "state officer or employee shall be personally liable for damage or injury, not wanton, reckless, or malicious, caused in the discharge of his duties or within the scope of his employment" (CGS § 4-165). This immunity provision would seem to apply directly to a resident state trooper's actions under the sex offender registration law.
People complaining of damage or injury caused by a state employee must present a claim against the state. Claims under $7,500 are handled directly by the claims commissioner, while the commission refers higher claims to the General Assembly. In some cases the General Assembly can authorize a person with a claim to sue the state.
ACTS FOR WHICH TOWN EMPLOYEES CAN BE FOUND PERSONALLY LIABLE
A municipality is generally immune from liability for the performance of government acts (Gauvin v. New Haven, 187 Conn. 180), and town officers and employees are generally immune from personal liability for discretionary actions they take (or do not take) in the performance of their official duties. The rational for this immunity is the promotion of fearless, vigorous, and effective administration of governmental policies.
Town employees are allowed wide latitude in the performance of their governmental duties, that is, those that involve supervisory or discretionary functions that are executed for the public's benefit, not for a specific person to whom a special duty is owed. Officials acting in this capacity are generally immune from liability unless their actions are wanton, willful, or malicious or they acted negligently when they could have foreseen imminent injury to a specific party. Conversely, they are given much less latitude in performing ministerial duties, which are acts in which the employee must follow specific procedures and make no judgments. Employees may be held liable if they perform such ministerial duties negligently.
Wanton, Willful, and Malicious Misconduct
Connecticut courts have long held that government officials and employees are immune from liability for their official acts or omissions as long as they are done “in good faith, in the exercise of an honest judgment, and not in abuse of discretion, or maliciously or wantonly . . . . Where the discretion has been exercised erroneously but in good faith through an error of judgment, the public official should not be required to pay damages for his acts” (Wadsworth v. Middletown, 94 Conn. 435).
The courts have generally equated wanton acts with acts done recklessly or with callous disregard. These are acts that indicate a reckless disregard of the rights or safety of others or of the consequences of the action. If these elements are present, it is not necessary to prove that an official actually intended to harm someone (West Haven v. Hartford Ins. Co., 221 Conn. 149).
A willful and malicious injury is one inflicted intentionally without just cause or excuse. Both terms—willful and malicious—import intent. Both the act and the resulting injury must be intentional. The intentional injury aspect may be satisfied if the resultant harm was the direct and natural consequence of the intended act (Markey v. Santangelo, 195 Conn. 76).
Willful misconduct is conduct that shows willful disregard of someone's interest, such as deliberate violations of procedure or of expected standards of behavior. It includes deliberate disobedience or the intentional violation of a known rule (Todd v. Administrator of Unemployment, 5 Conn. App. 309).
Negligence is a breach of duty. The Wadsworth rule (noted above) makes no mention of negligence as a cause for losing immunity. In fact, it could be argued that using words such as “malicious and wanton” implies that negligent conduct is excluded. But public employees are liable
for their negligent acts in two situations: (1) when the employee is acting in a ministerial capacity and (2) when he could have foreseen that his act would subject a specific person to imminent harm.
Ministerial Acts. A ministerial act is one performed by an employee in “a given state of facts,” in a prescribed manner, without considering, or using his own judgment or discretion on, the propriety of the act being done. A ministerial act often follows the employee's determination of the “given state of facts.” Making that determination itself is a discretionary act. But once the determination is made, the act that follows is ministerial (Pluhowsky v. New Haven, 151 Conn. 337).
For example, in Wright v. Brown, the court held that a dog warden's finding that a dog had bitten someone outside of its owner's premises was a discretionary determination of facts. Having made that finding, keeping the dog in quarantine for 14 days was a ministerial act. Releasing the dog before the mandatory end of quarantine was a negligent act for which she was liable (167 Conn. 464).
Duty Due to a Specific Person. Negligence in carrying out discretionary duties due to the public will not subject a public employee to liability. But Connecticut courts have noted situations where a public employee should recognize that a failure to act would likely subject an identifiable person to imminent harm. In these situations the courts have held that the employee could be liable.
Recognizing these situations is not always easy. In 1979 the Connecticut Supreme Court held that the estate of a person killed during a riot could bring a Groton policeman to trial because he failed to act to disperse the rioters (Sestito v. Groton, 178 Conn. 520). Three years later the court held that a Stonington policeman could not be brought to trial for failing to detain a probably drunken driver who later caused a death in a traffic accident (Shore v. Stonington, 187 Conn 147). Justice Peters failed to see the distinction between the two sets of circumstances and dissented in the latter case.
Municipalities must “protect and save harmless” employees from financial loss and expense, including legal fees, from any lawsuit alleging: infringement of civil rights; acting maliciously, wantonly, or willfully; or exceeding ones authority (CGS § 7-101a). The employee must reimburse the municipality if the court finds that he acted maliciously, wantonly, or willfully exceeded his authority. Municipalities can insure against this liability, and an injured person must notify the municipality of his intent to bring an action under this section within six months of the event and begin the suit within two years.
Under CGS § 7-465 a municipality must pay on behalf of its employees any sums they become obligated to pay because of liability imposed by the court for acts within the scope of their employment. Governmental immunity is not a defense to actions brought under this section. The indemnification applies to damages for infringement of someone's civil rights or personal property damage cased by negligence. The municipality does not have to indemnify someone for willful or wanton acts or for libel or slander. The same six-month and two-year deadlines apply as in § 7-101a.
Under the tort reform act passed by the General Assembly in 1986, a municipality is not liable for “negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law” (CGS § 62-557n).
POLICE ACTIONS AND LIABILITY
A number of potential actions the police could take under the sex offender registration law might subject them to suit. It is impossible to calculate all of the factual variables that might go into these potential lawsuits, but we have chosen to examine a few. In scenario one, the police receive an incorrect sex offender registration form from a state agency and pass it along to the public in response to a request. It seems unlikely that they would be found liable for any harm that might occur in this situation unless the plaintiff could establish that they had a duty to confirm information in the form.
In scenario two, the police release the wrong name of a registered offender, either by copying it down incorrectly or by mixing up offenders with similar names. They might be liable in this case, because they are probably performing a ministerial act. They are following the law, which requires giving the names of registered offenders to people who ask for it; no discretion is involved. Employees are liable for negligence in performing a ministerial act.
In scenario three, the police fail to notify the neighbor of the presence of a sex offender and the offender sexually assaults the neighbor's child. The police might be liable. The law does not require, or even specifically authorize them to notify the neighbor on their own, but under the doctrine of failure to act in a situation that would subject an identifiable person to imminent harm, they might be liable. It would depend on whether (1) they knew the neighbor had a child (or that the neighbor was a day care center) and (2) the plaintiff could establish the imminent risk of harm, which presumably would depend on the nature of the offender's record.
In scenario four, the police notify many people in the town or place the offender's name on the Internet and subsequently a mob attacks and injures the registered offender. It is unclear if they would be liable in this situation. As in scenario three, they had no specific authorization to act as they did, but their action involved judgment and discretion. The defendant would likely argue "intervening cause," that is that the action of the police was not the direct cause of the harm; it was the mob that caused the harm.
In scenario five, the police release the wrong name of a registered offender and an enraged citizen breaks into the innocent person's home and assaults him. Again, the defendant would probably argue intervening cause, but the police action also might be viewed as negligent performance of a ministerial act. Liability is unclear.