When its lawmaking session opens in January, the Wyoming Legislature will hear a bill that would ban people from suing police officers over negligent investigations.
The legislative Joint Judiciary Committee voted 8-6 to advance the bill Thursday, after a pair of prosecutors and two former police officers butted heads with detractors who called the bill an overbroad, good ol’ boys-style protection of government.
Currently filed under a numerical “working draft” title, the bill proposes to take away a newly-recognized ability for suspects to sue police officers for conducting negligent investigations.
Wyoming is the only state that offers such a lawsuit mechanism, according to committee testimony.
The civil attorney whose court battle Palm-Egle vs. Briggs prompted the Wyoming Supreme Court to recognize this new lawsuit mechanism, spoke against the bill Thursday by calling it overbroad.
“Being reasonable and prudent of what you’re doing – that’s all we’re asking of police officers,” Gary Shockey told the committee. “If, in the opinion of experts in the field your conduct wasn’t reasonable or prudent, then you can be found to be negligent.”
Shockey pointed to what he called the three prongs of a “tort,” or a wrong that can underpin a lawsuit. He said they’re negligence, causation (a link between the behavior and the wrong) and damage.
The Wyoming Supreme Court opinion on this matter, conversely, says negligence torts have four prongs: the existence of a duty of care, a breach of that duty, actual injury or loss, and causation.
He claimed that the bill draft would scrub away a negligence prong, making it impossible to sue a police officer for a tort.
No, That’s Different
In a frank response, committee member Rep. Ember Oakley, R-Riverton, countered Shockey, saying the bill would do no such thing.
She said a “negligent investigation” lawsuit isn’t the same as invoking the concept of negligence for some other lawsuit, and that the bill doesn’t excuse officers’ general negligence.
“And to say that (cops) are not expected or held to a legal standard unless they can be sued for negligent investigation is incorrect in my estimation,” said Oakley.
The bill language does not appear to remove a person’s ability to sue a police officer for violating his rights generally, such as his right to be secure in his home.
But if it passes, the bill would remove a suspect’s ability to sue that cop specifically for waging a “negligent investigation.”
Committee Co-Chair Rep. Art Washut, R-Casper, also countered Shockey’s and others’ testimonies against the bill, asking if any victims have ever been able to sue police for not getting a case through court.
“When was the last time you looked at a newspaper headline that says ‘crime victim sues police because case wasn’t filed’?” asked Washut. Voting down the bill means “we’re saying police have a duty to the suspect, the perpetrator of a crime – but they have no similar duty to the victim of a crime.”
But It Is So Hard To Sue The Government
Rep. Ken Chestek, D-Laramie, who is also a retired law professor, voted against the bill.
He said the bill takes government immunity a step too far, and that police officers still can wage a qualified immunity defense, which protects them if they were acting in good faith and reasonably.
Shockey also had pointed to qualified immunity as a fair compromise, saying officers wage that defense early in a case, often before the person suing has compelled them to give up discovery, or information to help with the case.
And Here’s Some Background
The Wyoming Supreme Court announced that Wyoming law allows for such lawsuits in a March ruling stemming from a disastrous marijuana-farming investigation in Albin, Wyoming.
Charged in 2019, the case against the defendant Deborah Palm-Egle was dropped in 2020, amid a dispute about whether the 700 pounds of hemp that the Wyoming Division of Criminal Investigation seized from her property contained an illegal or permissible amount of THC. She had been held out as a hemp (non-psychoactive cannabis) expert before the investigation started.
Palm-Egle then sued the Wyoming Division of Criminal Investigation over what she alleges was a negligent investigation.
The U.S. District Court for Wyoming, which is a federal and not state court, was confused over whether Wyoming law allows for such an action, and asked the Wyoming Supreme Court to weigh in.
In a 3-2 opinion offset by a fiery dissent by now-retired Justice Keith Kautz, the high court majority said yes, Wyoming law allows for suspects to sue cops over negligent investigations. It pointed to past cases that indicate that officers owe a duty of care to people they’re investigating.
Kautz railed against the majority’s decision, saying it didn’t check the multiple steps the judicial branch requires when outlining a new lawsuit avenue. He also said it could open up a litigious deluge, even giving a right to sue to an employer inconvenienced by an officer’s investigation of his employee.
How They Voted
Voting for the bill were Oakley, Washut, and Rep. Barry Crago, R-Buffalo; Committee Co-Chair Sen. Bill Landen, R-Casper; Rep. Rachel Rodriguez-Williams, Cody; Sen. Wendy Schuler, R-Evanston, and Sen. Dan Furphy, R-Laramie.
Voting against it were Chestek, Rep. Karlee Provenza, D-Laramie; Sen. Cale Case, R-Lander; Sen. Ed Cooper, R-Ten Sleep; Rep. Mark Jennings, R-Sheridan; Rep. Jeremy Haroldson, R-Wheatland.
Clair McFarland can be reached at clair@cowboystatedaily.com.
