In an executive order issued Oct. 7, Gov. Chris Sununu formally created the New Hampshire Juvenile Justice Reform Commission and named its members. (Getty Images)
A Democratic state lawmaker is pushing to overhaul “qualified immunity” in New Hampshire in a last-minute amendment to a bipartisan police reform bill.
In an amendment released Tuesday, Rep. Paul Berch of Westmoreland proposed making New Hampshire public employers liable for any actions by their employees that are unconstitutional.
The change would mean a town, school, or state agency would be legally accountable for “any wrongful act of its agents if such act occurs under the color of law,” the proposed law states.
And it would mean that if a New Hampshire police officer violated a citizen’s constitutional rights, the department they worked for could be sued for damages.
But the late amendment is attached to a bipartisan effort to enact police reform – Senate Bill 96 – which makes its passage unlikely.
Berch’s legislation would dramatically alter New Hampshire’s legal landscape, which presently protects state employees from most lawsuits under both official immunity and qualified immunity – including officers.
Since the death of George Floyd in May 2020 during an arrest in Minneapolis, advocates for police reform have been pressing for an end to qualified immunity laws, which they argue shield law enforcement and police departments from financial consequences for wrongdoing.
Under New Hampshire’s current immunity law, state employees are protected from lawsuits that focus on behavior carried out in the official course of their duties – provided that the behavior was not carried out in a “wanton and reckless manner,” a high bar to prove in court.
Berch’s amendment would allow any individual to seek relief from a public body “for an injury caused by an agent of the state of New Hampshire or a political subdivision in violation of a right under the laws or constitution of New Hampshire or the United States.”
But the bill would explicitly protect the individual employee from bearing any liability from that action, putting the financial onus instead on the employer.
Berch has proposed the amendment for a bill that has so far attracted broad bipartisan support. Modeled after some of the recommendations of the 2020 Commission on Law Enforcement Accountability, Community, and Transparency, SB 96 would help fund body cameras, require implicit bias training for judges, and reduce the severity of certain delinquency hearings in the juvenile justice system.
The amendment will come up for public hearing in the Criminal Justice Committee on May 18 at 9 a.m.
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