A Wyoming legislative committee let a bill die last week that would have reversed a state Supreme Court decision creating a new avenue for suing police officers.
Reflecting on the botched case in which Wyoming Division of Criminal Investigation agents investigated a known Albin, Wyoming, hemp advocate for suspected marijuana possession, the Wyoming Supreme Court last March created a new mechanism for suing police agents: That of negligence.
Wyoming is the only state in the nation that allows that special cause of action, said then-Justice Keith Kautz in a blistering dissent opinion, which Justice Kari Gray joined.
Dissents are rare in the Wyoming Supreme Court.
The three-justice majority, conversely, said prior Wyoming cases have already demonstrated that police officers owe a duty of care to the suspects they investigate, which makes it possible for wronged suspects to sue for negligence.
The current House Judiciary Committee Chair Art Washut, R-Casper, was also chairing the committee before the new House members were sworn in earlier this month. But he’s one of the only old faces still remaining from last year’s Judiciary Committee, which advanced House Bill 53 in November. The committee also contained one prosecutor and a civil county attorney working under an elected prosecutor, at that time; but it no longer does.
Had it become law, HB 53 would have specified that people can’t sue police officers for negligence when those officers are acting within the scope of their duties.
It died when no committee members moved it for consideration, making it less likely for the Wyoming House of Representatives to hear. A lawmaker still could sponsor the bill individually by Feb. 3 on the House side, or Jan. 29 on the Senate side.
“Three justices of the Wyoming Supreme Court created this cause of action without any statutory work by the Legislature,” Washut told the committee during a Wednesday meeting. “It’s the responsibility of the Legislature to identify those cause of action, and not the judiciary – so that’s the purpose behind his bill.”
Allen Thompson, executive director for the Wyoming Association of Sheriffs and Chiefs of Police, said his stakeholders support the bill.
The high court’s ruling puts law enforcement into strange territory and has prompted at least six negligence lawsuits against police officers, said Thompson.
The Wyoming Governmental Claims act already allows people to sue officers for wrongdoing, but the realm of negligence is more “accidental,” he continued, and the high court’s ruling “puts law enforcement in an untenable situation.”
He voiced a concern that officers could hesitate to investigate crimes altogether, for fear of a lawsuit from a suspect.
Rep. Laurie Bratten, R-Sheridan, pushed back, confirming with Thompson that the high court’s ruling left qualified immunity intact.
Qualified immunity is a counter-defense to lawsuits against police officers designed to protect those acting in good faith and within people’s widely known rights.
Thompson confirmed that yes, the ruling left qualified immunity intact.
So Hard To Sue The Government
Mark Aronowitz, who spoke for the Lawyers and Advocates for Wyoming and for the Wyoming Trial Lawyers Association, opposed the bill.
He spoke of the Wyoming Governmental Claims Act, which authorizes multiple avenues to sue the government so that people are treated more fairly than under the old common-law principle of not being able to “sue the king.”
The negligence mechanism is along the spirit of “balancing the equities” for Wyomingites, said Aronowitz. He added that the majority’s ruling drew from prior cases indicating police officers owe suspects a duty of care.
“There should just be a reasonable investigation (of) ordinary prudence,” he said. “Especially if you’re doing something that might lead to somebody losing their freedom.”
Like Bratten, Aronowitz drew attention to qualified immunity, which he said is an effective defense.
Just because suspects can sue for negligence doesn’t mean they’ll win, he added.
Just Because It Fell Apart
Factors that could push someone into filing a negligence claim involve more than just the investigator, Washut countered.
In the Palm-Egle case, Deborah Palm-Egle’s criminal case was dismissed at the preliminary court level. After that she sued for negligence in federal court, and the federal court asked the Wyoming Supreme Court to articulate whether such a mechanism exists.
The harm to Palm-Egle was that an apparently non-viable prosecution was waged against her, Washut said. But the decision to dismiss the case came down to the prosecutor, not to the investigator.
Washut theorized that it’s possible – as Kautz also had predicted in dire terms – that this mechanism will “open the floodgates,” lay burdens on every police interaction and suck prosecutors into a frequent cycle of civil depositions – even as a prosecutor shortage persists in the state.
And Washut pointed to a possible paradox: the state high court didn’t create a special mechanism for victims who never saw cases involving them charged to sue negligent police officers; only for suspects to sue over botched cases that may have fallen apart due to multiple people along with the investigator.
Aronowitz said he hesitated to disagree with Washut, but he believes police officers owe a duty of care against negligence to everyone, not just suspects.
The Woman Who Did Not Steal A U-Haul
Cheyenne attorney Robert Moxley also approached the committee to criticize the bill, saying it would close a door that should be kept open.
He said he’s waging a lawsuit on behalf of a client who got a driver’s license under her married name, then her maiden-name license fell into the hands of criminals.
They rented a U-Haul using her identity, then stole it, said Moxley. He said Cheyenne police raided her home and arrested her anyway, then ran a press release about her alleged criminal involvement that marred her reputation and changed her life forever.
Washut asked Moxley if he would have had a case even without the Palm-Egle ruling – under false arrest, for example.
Moxley said yes, but it would have been a heavier lift and wouldn’t have covered all the harms his client suffered.
Clair McFarland can be reached at clair@cowboystatedaily.com.
