Commission urges longer review of qualified immunity

BOSTON — A panel created to study the controversial topic of qualified immunity and make recommendations to lawmakers on how the state should handle it has suggested a two-year wait before pursuing any further changes, while also offering up ideas for tweaks to the state’s civil rights law.

A Special Commission on Qualified Immunity, one of a number of similar groups created in the December 2020 police reform law to examine particular issues, released its recommendations last week, about eight months after its first meeting and a few days past its Dec. 31, 2021 deadline.

The final product contains a trio of recommendations – the two-year review period and a pair of amendments to the Massachusetts Civil Rights Act – and was quickly knocked by the ACLU of Massachusetts and Lawyers for Civil Rights, with the lawyers group blasting the effort as a “colossal failure.”

A flashpoint in the 2020 efforts to pass police accountability legislation, the legal doctrine of qualified immunity, as defined in the report, “grants some government officials immunity from personal liability in certain civil lawsuits.”

Its application in cases involving police misconduct and excessive force allegations was part of the national dialogue around policing and racial justice that spurred Massachusetts lawmakers to act.

After intense debate – where critics said qualified immunity keeps police from being held accountable if they violate someone’s rights and supporters held it up as a protection that keeps officers from second-guessing themselves on the job – lawmakers ultimately sent Gov. Charlie Baker a bill that prohibits the application of qualified immunity in claims against officers based on conduct for which they were decertified by the new Peace Officer Standards and Training Commission.

The final legislation also created a 15-member panel to investigate the origins of qualified immunity, its present interpretation by the courts, and its legal and policy impacts. Judiciary Committee chairs Rep. Michael Day and Sen. Jamie Eldridge, Democrats from Stoneham and Acton, served as its chairmen.

The commission said in its report that the members were “unable to reach a consensus about whether to end qualified immunity, amend the qualified immunity standard, or leave the qualified immunity standard as it exists today.” A copy of the report posted online by Lawyers for Civil Rights shows that none of the recommendations was adopted unanimously.

Ten commissioners – including Day, Eldridge, Senate Minority Leader Bruce Tarr and Reps. Sarah Peake, William Straus and Steven Xiarhos – endorsed a “two-year continued review of the implementation and administration” of the 2020 police reform law “before recommending further substantive changes to the qualified immunity doctrine,” to give interested parties a chance to understand the impacts of the law and its provision removing qualified immunity for decertified officers.

Testimony from the Massachusetts Association for Professional Law Enforcement, quoted in the report, backed the idea of allowing time “for review and evaluation” of the new Police Officer Standards and Training Commission.

“The rules and regulations that the commission will promulgate over the course of time will inevitably help clarify conduct, performance, and responsibility,” reads an excerpted passage of MAPLE’s testimony. “They will also assist in the removal of officers, who are unfit for duty. The courts should not be utilized as the primary agency for administering police discipline. Their primary focus should be the redress of specific injuries or damages.”

Sens. Cynthia Creem and Julian Cyr, Lawyers for Civil Rights Executive Director Ivan Espinoza-Madrigal and American Civil Liberties Union of Massachusetts legal director Matthew Segal voted against the recommendation.

Segal, in a statement, said the ACLU is disappointed that the report did not “recommend meaningful changes to qualified immunity.”

“Let’s be clear, this is a policy decision about who pays when police violate a person’s civil rights: the longer we leave qualified immunity in place, the longer victims will continue to bear the full cost of that violence – medical bills, funeral expenses, and the emotional trauma of experiencing state violence,” he said.

Lawyers for Civil Rights issued a statement that said the organization “condemns in the strongest possible terms the shameful outcome,” saying that the lack of consensus “on the urgent need for reform” after months of meetings “represents a colossal failure” and “is a miscarriage of justice.”

“The commission’s reform efforts were also doomed to fail because its composition was deeply problematic. It failed to meaningfully reflect the people of color who are disproportionately and imminently at risk of police violence,” the statement said. “From the start, the right people were never at the table. As the outcome reflects, the commission was a charade and a façade.”

LCR’s Espinoza-Madrigal served on the panel as a designee of the NAACP New England Area Conference. In addition to the lawmakers and ACLU designee Segal, the commission’s members included Sherborn Select Board member Paul DeRensis, a Massachusetts Municipal Association designee; Massachusetts Bar Association designee Richard Sweeney; and two Gov. Charlie Baker appointees representing police and fire unions – New England Police Benevolent Association President Christopher Ryan and Professional Fire Fighters of Massachusetts Vice President Matt Reddy.

Sweeney, Reddy and Ryan each voted in favor of the two-year review, and against the commission’s other two recommendations.

The commission recommended two ways for lawmakers to amend the Massachusetts Civil Rights Act, which the report classified as “preliminary changes” to help the police reform law live up to its intent and “to better inform any future evaluation of the qualified immunity doctrine.”

Ryan said he voted against the Civil Rights Act amendments because he considered them “outside the scope” of the commission. He said he anticipated that potential financial consequences and an “increased workload to our already overworked court system” would “have significant impact to the taxpayers of the commonwealth.”

“This issue needs to be studied and vetted accordingly with further input and appropriate notice to the general public,” Ryan said.

The report calls for one amendment that would remove, in claims against law enforcement officers, the requirement that a plaintiff show the defendant interfered with their civil rights specifically by using “threats, intimidation or coercion.” The commission found there may be “egregious” civil rights violations that do not necessarily involve threats, intimidation or coercion, and said that clause “effectively eliminates a plaintiff’s right to seek redress in state court for violations of civil rights by police officers, especially rights guaranteed by state law.”

The report’s other recommendation is for legislators to “require any court considering a claim for qualified immunity to make a determination about whether the alleged conduct in a case violates an individual’s civil rights, even if the court also determines that any violation did not violate rights that were ‘clearly established’ at the time of the incident.”

“The Commission heard clearly that claimants do not file civil rights cases in Massachusetts because the state law has a heightened standard when compared to the federal law, and we recognized that this could hamper the legal evolution of the qualified immunity doctrine,” Day said in a statement. “By also requiring our courts to define what conduct violates an individual’s civil rights, whether qualified immunity applies or not, we will allow case law to develop in Massachusetts that will inform policy makers in the future about the successes and failures of police reform.”

Eldridge, who also serves as Senate chair of the Legislature’s Criminal Justice Reform Caucus, said the recommendations “will hopefully increase access to justice for civilians and improve the trust between law enforcement and vulnerable populations, while acknowledging that the qualified immunity reforms in the 2020 police reform law are still being implemented.”