How qualified immunity acts as a barrier to accountability for alleged police brutality
Robert Fortunati thinks about his son Joe every day. He said his son was polite and always willing to help people. Joe spent most of his life in Corinth, where his dad and stepmom Susan still live. Joe worked as a carpenter, a painter and dabbled in real estate. He had two kids.
Joe also struggled with bipolar disorder and schizophrenia. In the summer of 2006, he stopped taking his medication and became erratic, according to court records. The 40-year old set up a campsite off a rural dirt road a few miles from his father’s house.
“I really didn’t know Joe was up there,” Robert said in a recent interview.
Two environmental workers ran into Joe near his campsite in June 2006. He was blocking their path and appeared agitated, according to court records. The workers called the state police.
Robert, along with Susan and his son Mark, went to talk to Joe. Joe pulled out a handgun and told them to leave. After that encounter, Robert called the state police and told them that Joe had a gun. He offered to go with them to the campsite.
“I says, ‘I think we can calm things down, let’s devise a plan and get together,’” Robert said. “They says, ‘OK, yeah we will, stand by the phone.’ I stood by the phone — stood here all day.”
The state police never called. Instead they sent in a SWAT team. Seven troopers eventually surrounded Joe, and court records say after seeing he had a gun, they ordered him to put his hands up.
What happened next is disputed, but police say Joe pulled his gun from his waistband and pointed it at the troopers, who then fatally shot Joe. The whole encounter lasted 11 minutes.
The Fortunatis didn’t know Joe had been killed until about 9 p.m. — hours after the shooting, Robert said.
“My oldest son, who was in St. Johnsbury at the time, on his way home to Newport, called me up and said, 'Dad, they killed Joe,’” Robert said.
The troopers were ultimately cleared of criminal wrong-doing. Some of the troopers even received commendations for their efforts that night — something that Joe’s stepmom Susan described as a “slap in the face.”
Joe's family sued the troopers in federal court, alleging the police used excessive force and escalated the situation against a man suffering from mental illness.
The family also disputed the police’s account of the shooting. They said Joe was taking the gun out to surrender, and in court records, pointed to significant inconsistencies in the police accounts of what happened.
“There was no need of anything that they did other than being roughnecks,” Robert said.
"There was no need of anything that they did other than being roughnecks."
But the bulk of the Fortunatis’ case never got to trial. The allegations of excessive force were dismissed after a judge granted the troopers qualified immunity.
The doctrine, which applies to all government employees, is meant to give public officials latitude to do their job without fear of getting sued.
In legal terms, qualified immunity has two parts. First, was there a violation of a person’s rights? And second, are those rights clearly established, usually through another case with identical facts?
In practical terms, qualified immunity makes it extremely difficult to successfully sue the police.
“You're basically thrown out of court before you can fully discover the facts,” said Robert Appel, an attorney and former defender general who’s represented victims of alleged police misconduct.
“Unless you, in your complaint, allege facts that closely aligned with a clearly established precedent, you're subject to dismissal on motion,” he said.
Many cases are thrown out or significantly weakened before they get to a jury in Vermont. They include suits brought on behalf of a mentally ill Burlington man shot and killed after brandishing a shovel at police, a mentally ill man with a knife who was fatally shot in a Brattleboro church, and two protesters tased by Brattleboro police after refusing to unchain themselves from a barrel.
Marshfield resident Timothy Keene also saw his suit against police dismissed. In September 2005, state police arrested Keene at home for drunk driving. According to court records, the troopers pepper-sprayed and beat Keene in front of his 14-year-old daughter when he refused to comply with their orders.
Keene, in a recent interview, said he should have been compensated for the physical abuse and emotional trauma he endured.
“That should be worth something,” he said. “Why should police be able to do that … and walk away free and clear?”
"Why should police be able to do that … and walk away free and clear?"
Some of the most powerful lawmakers in the Statehouse agree that qualified immunity has been a problem. Sen. Dick Sears, the chair of the Judiciary Committee, along with Senate President Pro Tem Becca Balint, sponsored a bill to eliminate qualified immunity for police in state courts, creating a new legal pathway for victims of alleged police brutality and misconduct.
The proposal drew swift condemnation from law enforcement officials, who argued that it would lead to a flood of frivolous lawsuits and exacerbate staffing problems at police departments.
Public Safety Commissioner Michael Schirling told lawmakers that the bill was a “backdoor to dismantling law enforcement” and would do little to increase police accountability.
“This effort is regressive,” Schirling said during a meeting of the Senate Judiciary committee. “It addresses misconduct or errors after they've happened, rather than investing in trying to improve outcomes at the front end.”
Sixteen years after Joe died, the Fortunatis still wonder why the police responded so aggressively. Susan Fortunati says Joe’s counselor was available, and the police had a hostage negotiator on scene. But instead, they immediately sent in a SWAT team.
“It's not like they didn't have the resources,” she said. “They had the resources up there, they just chose not to use them.”
Robert Fortunati says there wasn’t much closure from their lawsuit. He said the main reason they brought the case was to try to prevent similar tragedies from happening.
“People need patience, people that need help, rather than going in and just shooting them,” he said.
Above all, Robert said he wishes the police had just been more humane on that night in June.