Markey seeks end to immunity for police officers in civil suits

Senator Edward J. Markey.Matthew J. Lee/Globe staff

US Senator Edward J. Markey joined local Black community leaders Wednesday calling for an end to qualified immunity, the concept that a police officer can be protected from liability for most job-related conduct.

Markey, a Democrat, said he is cosponsoring a Senate resolution condemning qualified immunity, and that he would draft specific legislation to end what is now a judicial doctrine that, he said, has been used for decades “to shield officers from accountability for instances of police brutality and excessive force.”

“In our culture of systemic racism, qualified immunity is one of the foremost tools of oppression,” Markey said. “Police officers are murdering Black and brown Americans in our streets without any accountability. We must act now and end qualified immunity once and for all.”

A definition of qualified immunity has not been codified in laws, but instead has been shaped by US Supreme Court decisions and lower courts’ interpretations that have effectively made it impossible for a victim to sue an individual police officer for job-related conduct.

The difficulty of bringing civil lawsuits has in turn discouraged victims of police brutality and misconduct from seeking relief from the courts, thereby fostering a culture of oppression, opponents of the doctrine argue. Markey said the concept actually contradicts language under the Civil Rights Act of 1871 that aims to give people freedom to hold police officers accountable.

Qualified immunity does not prevent a state or federal prosecutor from seeking criminal charges against a police officer for on-the-job conduct, but that bar is high; Markey said victims should be able to seek civil remedies from the courts, as well.

Rahsaan Hall, director of the Racial Justice Program for the American Civil Liberties Union of Massachusetts, said Supreme Court decisions have made the bar for bringing a lawsuit so high that a victim must prove that an officer purposefully committed an act that has already been found to be wrong in a previous court decision — with only the same specific set of facts and circumstances.

That means, for example, that police cannot be held liable in a civil suit for killing a woman while executing a search warrant at the wrong house (as was the case with Breonna Taylor, who was killed by police in Louisville, Ky., in March); or if an innocent man is imprisoned and held in solitary confinement, he cannot sue the officers who erroneously put him in jail.

“It’s not about bad apples, it’s about a culture of policing granted too much immunity, too much protection from liability,” he said. “This [proposed legislation] is the piece that can begin to change the conversation about how we understand policing in this country, this is something that can really rein in the way things are happening.”

Markey cosponsored the resolution along with US Senators Elizabeth Warren of Massachusetts, Cory Booker of New Jersey, and Kamala Harris of California.

On Wednesday, he joined local Black community leaders including Suffolk District Attorney Rachael Rollins, who was elected in 2018 on a platform of reforming the criminal justice system to root out discrimination, and Michael Curry, a former president of the Boston branch of the NAACP, and a current national board member.

Rollins said she supports the effort as a way to hold police officers accountable for their actions.

“This is not about the culturally competent men and women who put their lives at risk every day in this job. We’re not talking about them,” she said. Instead, she said, the effort targets officers who are repeat offenders of misconduct and “believe they can kill with impunity.”

Rollins, who has clashed with police unions in recent days over her comments, said this week that unions should support efforts to address wrongdoing among a small percentage of officers. She praised police officers who have taken a knee during recent police community protests.

“When you renounce those bad actors, we start gaining faith in the system,” she said.

Several police unions and associations, including the Boston Police Patrolmen’s Association and the Massachusetts Chiefs of Police Association, did not respond to requests for comment about Markey’s effort.

Markey’s proposal comes a day after top elected officials of color united in a march and news conference at the State House in a call to action for laws that can address systemic oppression and police brutality.

They pressed for the statewide use of body cameras, for example, and for communities to implement independent boards to review police conduct. US Representative Ayanna Pressley proposed her own resolution to the House condemning police brutality and the militarization of police forces, the first time such a resolution has been introduced in two decades.

Markey is running for reelection this year and faces US Representative Joseph P. Kennedy III in the Sept. 1 Democratic Senate primary. Kennedy tweeted “End qualified immunity” Wednesday, adding, “Reform isn’t enough, we must fundamentally change the way we police in the US.”

Also Wednesday, Boston city councilors, representing the most diverse council in the body’s history, passed a resolution supporting Pressley’s effort.

Councilor Ricardo Arroyo, who cosponsored the resolution, said the council should have already been working more aggressively to address systemic racism within Boston city government — he pointed to council matters that are still pending, such as a review of a police gang database that is comprised mostly of minorities; by banning the use of facial recognition programs; by forcing the creation of an independent board to oversee police conduct.

“Systemic racism and racial inequality are tangible things,” he said, recounting examples of racial inequalities in Boston. “We have a responsibility . . . to speak and act on these deep inequities every day. We have a responsibility to speak truth.”