Imagine if you lived in a country like Russia that has a number of civil rights enshrined in its Constitution. If those rights were violated by the government, do you think you could sue to enforce them? Of course not.
Yet by an oversight we live in a state where your rights to speak, own a gun or peaceably protest cannot be enforced by our courts under the terms of our own State Constitution. Since 1986 our Supreme Court has said that unless the legislature acts, the courts will not be open to lawsuits to enforce our 1784 Bill of Rights.
Now the legislature has the opportunity to pass HB 111, which would open our courts to claims to enforce our State Constitution. The sponsors are liberals and liberty lovers, from the left to the right politically, united to have more accountability for harms done by government employees.
Put bluntly what good is a Bill of Rights if you cannot enforce it?
In our republican form of government, all public employees, including police officers, exercise only the powers granted them by the people. All public employees serve the citizens and are accountable to them. That is why our Bill of Rights in Part I, Article 8 reminds us that:
All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them.
Unfortunately, our right of accountability has been denied time and time again in recent years by court decisions making government less and less accountable to individual citizens.
One way police departments can be made accountable to the George Floyds of this world is to allow lawsuits for excessive force or illegal searches and seizures to proceed in state courts.
Part I, Article 19 of our State Bill of Rights prohibits illegal searches and seizures. But when violations do occur, the citizen must now turn to the very similar federal Fourth Amendment as the basis for filing suit in federal or state court. An excessive force case cannot be based on our Bill of Rights, but must be based on the federal protections that have allowed civil suits for damages since 1871 pursuant to that year’s Civil Rights Act.
Police misconduct and certain other intentional tort cases against town and city employees frequently involve claims under that federal Civil Rights Act. But the U.S. Supreme Court created the doctrine of “qualified immunity” by an activist judiciary 50 years ago to shield government officials who make mistakes as to the legality of their actions. Saucier v. Katz, 533 U.S. 194, 206 (2002).
The State of Colorado very recently enacted a law that the federal judicially created theory of “qualified immunity” was null and void in its state courts. We should do the same here by passing HB 111.
Even if a state cause of action is enacted to enforce our Bill of Rights.
Chuck Dougles is a former member of the New Hampshire Supreme Court.