As Massachusetts lawmakers look to reform the way policing is done here, they need to peel away the layers of immunity that for too long have shielded police from legal claims of brutality and the abuse of civilians.
Unfortunately, the US Supreme Court last week made clear it has no intention of wading into the legal thicket of qualified immunity itself, the doctrine that protects bad cops from civil lawsuits and denies justice to their victims. The court refused to take up eight separate cases looking to revisit the issue on behalf of individual victims.
And though Congress — at least on the House side — has expressed an interest in fixing the problem, that won’t necessarily help Massachusetts, which has its own unique and even more problematic immunity law.
So as Capitol Hill debates a variety of reforms in the wake of the brutal death of George Floyd at the hands of a Minneapolis police officer, the time couldn’t be better to revisit the doctrine of qualified immunity as practiced right here in the Commonwealth.
At the federal level, qualified immunity grew out of an 1871 civil rights law originally intended to protect citizens against abuse — that is, until it was largely reinvented by the Supreme Court some 40 years ago. The court’s aim at the time was to protect police and other civil servants from frivolous lawsuits. But over four decades it has gone far beyond that. It was a judge-made law that the court once again has refused to fix.
The Massachusetts doctrine originated in a 1979 civil rights law that provides, as Matt Segal, legal director of the American Civil Liberties Union of Massachusetts, explains it, “double immunities.”
The law has been interpreted to provide a state version of qualified immunity, but also includes a section that requires victims to prove “threats, intimidation or coercion” in order to win a judgment against an officer.
The list of cases tossed out by courts because of that law is long and shameful.
In a case decided last year, Carli Taylor charged that Falmouth Police Officer Ryan Moore “used excessive force when, after stopping her for suspected drunk driving, he grabbed her arm, pulled her out of the car, put her on the ground, placed his knee on her back, and tased her.” But the case didn’t meet the state standard for “threats, intimidation or coercion.”
Nor did the case of a man shot in the back by a Lawrence police officer (he later died at the hospital).
Indeed, it’s hard to prove “coercion” when the victim’s already dead.
Cases dismissed under just the state’s qualified immunity include one involving a state trooper who illegally strip-searched a woman by the side of the road while making suggestive comments. Or the case of a woman suffering from bipolar disorder who walked away from the hospital that had just admitted her and was subsequently tased by an Athol police officer for not holding out her hands to be handcuffed.
It’s all well and good for Governor Charlie Baker to say, as he did at a recent news conference, that he’d like to see the issue of qualified immunity fixed “at the federal level,” but that is both unlikely and not sufficient.
“The immunities that exist here cannot be fixed at the federal level,” Segal said. “Congress can’t fix it. We have to fix it.”
Legislation filed last year by Representative Michael Day and still being held in committee would limit the use of qualified immunity under state law. It can and should be added to the package of police reforms being considered on Beacon Hill.
People have taken to the streets to demand justice for George Floyd but also to demand better law enforcement and policing that works for a community, not against it. Making certain that police no longer have a reason to believe they are above the law is an important part of restoring that balance. Fixing the state’s laws to limit qualified immunity will go a long way toward doing just that.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.