Commission sharply split on qualified immunity proposals
Civil rights lawyer calls lack of action “colossal failure”
A SHARPLY DIVIDED commission established to study qualified immunity – a controversial legal doctrine that shields police officers and other public employees from liability from civil lawsuits – is recommending that lawmakers not change the law for at least two years.
But the commission did recommend two changes that could make it easier for people to bring civil lawsuits against public employees in state courts, even with the qualified immunity doctrine unchanged.
The votes on the recommendations highlighted the split in the commission, with progressive attorneys opposing the two-year delay while those representing law enforcement opposed the other changes. The debate over whether the commission went too far or not far enough reflects what has been an enormously divisive issue in Massachusetts since lawmakers debated a major police reform bill, which passed in 2020 and created the commission.
“I think that reflects pretty accurately where society is,” said committee co-chairman Rep. Michael Day, a Stoneham Democrat. “You’re going to have different opinions on an issue like this one that emerges as a hot button issue.”
Sen. Julian Cyr, a commission member and Truro Democrat, worried that the recommendations do not sufficiently clarify a confusing, politicized concept. “If lawmakers can’t get their head around it, how can we expect public employees, including law enforcement and the public, to get their head around it?”
At the same time, commission member Lt. Christopher Ryan, president of the New England Police Benevolent Association, warned that the recommended changes carry an “overwhelming cost” for municipalities, because they will “open up floodgates as far as lawsuits.” He worried that the commission discussion was too influenced by national problems and will harm the police. “We don’t have these problems, yet we get painted with a broad brush on a national level, and it’s having a big impact on recruitment and retention,” Ryan said.
The report now goes to the Legislature for consideration.
Qualified immunity is intended to protect public employees from being held financially responsible for actions taken on the job. It is often used as a defense when someone claims a public employee violated their civil rights.
Because there is also a need to hold rogue public employees accountable, an employee can be held liable if it is proven that they violated someone’s civil right, that right was “clearly established” in law or court precedent, and a reasonable official would have known they were violating it.
After George Floyd’s murder and police shootings of unarmed Black individuals, reformers argued that qualified immunity as currently defined allows police officers to use excessive force and be shielded from consequences.
These are the three recommendations made by the commission:
A two-year delay
The commission, in a 10-4 vote, recommended not making any further changes to qualified immunity for at least two years, and using the time to study the impacts of the 2020 police reform.
The rationale is that the law just became effective July 1, 2021, and policymakers need time to figure out its impact on police conduct before making more changes.
Commission co-chair Sen. Jamie Eldridge, an Acton Democrat, said the committee could not reach consensus on specific changes to qualified immunity, though it considered a wide range of options, including abolishing it altogether. “That is an acknowledgment that because we couldn’t reach consensus, the next two years is critical to see how things get implemented, and how the limited qualified immunity reform we did, what kind of impact that has,” Eldridge said.
Ryan noted that under the 2020 reforms, not a single officer has yet been decertified.
But the decision to hold off on changes upset the more progressive commission members.
“We heard from numerous people who cited examples of qualified immunity harming the administration of justice,” said ACLU legal director Matthew Segal. Segal said it is illogical to say the commission cannot make recommendations due to the 2020 reforms, when it was the 2020 law that created the commission.
Espinoza-Madrigal added, “Police reform is urgently needed, and more study will not provide us with anything that will move the needle more than the incidents of brutality and impunity that have characterized deadly interactions between police and people of color in Massachusetts and across the country.”
Threats, intimidation, and coercion
Today, virtually all civil rights claims against public employees are filed in federal, not state, court. The reason is language in the Massachusetts Civil Rights Act, which allows lawsuits only in cases when someone’s civil rights are violated “by threats, intimidation, or coercion.”
So if a police officer unnecessarily tases someone, but does not first threaten to harm them, a civil lawsuit by the person who is tased could be dismissed.
The commission, in an 8-6 vote, recommended removing the requirement for “threats, intimidation, or coercion” in cases involving law enforcement.
The goal would be to let people harmed by law enforcement bring lawsuits in state court and align the state standard with federal standards.
Segal said there is “no plausible defense” for not letting someone who is shot or choked by the police to file in state court. He said the language “nullifies” victims’ ability to get justice through the civil rights law.
Commissioners representing law enforcement and municipalities and conservative-leaning appointees, including Senate Minority Leader Bruce Tarr of Gloucester, opposed the change.
Ryan said allowing more lawsuits in state courts will result in expensive rulings against communities, since even if an individual police officer cannot be held financially liable, a police department or municipality can. He said the recommendation goes beyond the scope of the commission, since the group was formed to examine qualified immunity, not the Massachusetts Civil Rights Act.
Paul DeRensis, a municipal law attorney appointed to the commission by the Massachusetts Municipal Association, worried that the proposed change was not publicly vetted, is outside the scope of the commission’s work, and could have unintended consequences. DeRensis said changing the civil rights law should be considered in two years along with changes to qualified immunity.
Paper trail and precedent
The third recommendation, which passed 8-5 with Tarr abstaining, would require any judge considering a claim for qualified immunity to write in their decision whether the conduct constituted a civil rights violation.
Today when cases are brought, judges generally rule whether someone has qualified immunity before reaching the merits of the case. The proposal would require a judge to decide whether behavior constitutes a civil rights violation, even if the judge subsequently says the perpetrator cannot be held liable.
This is meant to address the issue that for a public employee to be held liable, the right they violated must be “clearly established.” Today, judges often dismiss misconduct cases because they cannot find an earlier case with similar facts. Day said because there are so few precedents, court doctrine “doesn’t reflect the modern realities of policing or where we are as a society.”
The change would mean that even if a judge rules a particular police officer cannot be held liable, the next time a similar case arises, a police officer could be liable because there is a precedent.
“It would allow civil rights jurisprudence to further develop,” Cyr said. Cyr said this would also give policymakers a better understanding of how qualified immunity is applied in Massachusetts and set the table for potential reforms.DeRensis said the change would also address the problem that police officers do not always know what actions constitute a civil rights violation. “If we get the courts to articulate what’s right and what’s wrong, then we can train to it. We can educate police officers so they know,” DeRensis said.
Opponents question whether this is within the commission’s scope and whether it would have a meaningful impact.