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Lawyers say changes to controversial qualified immunity doctrine would move Mass. into uncharted legal waters

Michael Earielo was involved in a qualified immunity lawsuit against nurses who did not give him proper medical treatment when he was at the Worcester County Jail for a criminal charge that was ultimately dismissed.
Michael Earielo was involved in a qualified immunity lawsuit against nurses who did not give him proper medical treatment when he was at the Worcester County Jail for a criminal charge that was ultimately dismissed.Barry Chin/Globe Staff

In the middle of a January night in 2014, in the bedroom of his Charlton home, Michael Lachance had a seizure.

His wife Kimberly called 911. Three police officers soon arrived and tried to keep a disoriented and confused Lachance from going out into the cold winter night.

Lachance’s family members said they saw officers forcefully throw him over a sofa in an attempt to keep him from going outside. He later arrived at a hospital with acute fractures to his thoracic spine.

So Lachance sued, saying officers were negligent, had committed assault and battery, and used force improperly. A jury heard testimony, but never got a chance to reach a verdict — a federal court judge instead agreed to a defense motion to apply a doctrine called qualified immunity and dismissed the case.

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“They should not be allowed to get away with that. They should be tried like anyone else, as an assault and battery case,” said Lachance, who now lives in Maine.

After George Floyd’s death under the knee of a white Minneapolis police officer sparked nationwide protests about racism and policing, advocates and lawmakers seized on the legal doctrine of qualified immunity, a defense police officers can use in court cases, as a target for reform. Massachusetts lawmakers, like colleagues elsewhere, are tackling the issue as part of a police reform bill now being negotiated on Beacon Hill. But, like many other issues that deal with systemic racism, policing, and the law, it’s complicated.

A qualified immunity defense typically argues that any reasonable officer would have behaved the same way. If a judge agrees, the officer being sued can’t be held personally liable for on-the-job conduct.

But for people who feel they’ve been wronged, it can feel like a way to avoid accountability. “I’m not against the cops, don’t get me wrong. I have family in law enforcement,” said Lachance, who is white. “But there’s a level of things that needs to be accounted for.”

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Qualified immunity is not written into state or federal statute but has been used in both systems. It is based on about 30 years of case law that frequently evolves through time and across different jurisdictions and varied circumstances. That complexity makes it difficult to predict the legal ramifications of legislation that’s now pending on Beacon Hill.


If the Massachusetts Legislature includes changes to qualified immunity in its wide-ranging policing bill, the new law could offer more guidance to judges grappling with police misconduct cases in state court or add another confusing, legally complex hurdle to the existing case law patchwork.

For people of color, the rise of qualified immunity defenses has served to close off one of the few avenues for justice in police use-of-force cases, lawyers said.

“The federal courts were a good place to bring civil rights cases in the ‘60s, when it was impossible for Black people who were brutalized by police to find sanctuary in state courts,” said Hector E. Pineiro, a Worcester civil rights attorney who represents Lachance. “Federal courts were a safe haven. They’re no longer a safe haven because of the doctrine of qualified immunity.”

Some worry that a change could have unintended consequences on officers who are acting in good faith while doing their jobs. And the highest profile qualified immunity cases, involving police violence, are a small part of how the doctrine is most often applied, said Doug Louison, a partner at the Boston law firm Louison, Costello, Condon & Pfaff who has represented police officers, police unions, and municipalities in misconduct cases.

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“It’s frustrating to see this public commentary that qualified immunity has just been this blanket to cover police misconduct. Because when we’re talking about police misconduct, most of the time we’re talking about use of force situations, and that’s the least often used situation for qualified immunity,” said Louison.

A more common use for qualified immunity, Louison said, would be as a defense for an officer given incorrect information about where to execute a warrant.

“I think it’s a very nuanced but important legal defense for officers who are attempting to do the right thing, and attempting to apply the law correctly,” Louison said.

Leaders of police unions have been vocal in their worries as well.

“It will change the way lawsuits are filed in Massachusetts,” shifting cases from federal to state courts, said Larry Calderone, president of the Boston Police Patrolmen’s Association, after the state House of Representatives passed its version of the bill.

“It will definitely flood the courts and have the courts now create new standards and new topics of debate that will go on, I can only imagine, for another three decades,” he said.

Calderone also said he worried about the financial impact on officers, though lawmakers and legal experts have said changes to qualified immunity will not result in a personal financial burden on officers, and virtually all legal awards in the relevant cases are paid by governments.

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The House version of the bill would keep qualified immunity the way it is for working officers and other government officials, but eliminate it in cases where an officer is de-certified by a newly created standards board because of conduct that violated a person’s civil rights. The Senate version seeks to change the current standard by allowing judges to rule in plaintiffs’ favor even when they don’t have a nearly identical case to base their decisions on — the current standard, which can limit new lawsuits’ chances of advancing.

Advocates of eliminating qualified immunity say increasing accountability for police officers could help foster trust in communities.

“I’m confounded by the fact that there’s been so much pushback when we know this is the lived experience of people,” said the Rev. Willie Bodrick II, associate pastor of Twelfth Baptist Church in Roxbury.

Bodrick said he did not want to paint qualified immunity as an issue of police-versus-community. More accountability would be a net positive for all, he said. But he was not sure that the bills the Legislature is considering would do that.

“I think it’s a step. But right now it doesn’t seem, sadly to me — it doesn’t seem like the bill is aggressive enough,” Bodrick said. “The legislative agenda should not hunker to the status quo. We should not bend to the status quo. We need radical change, and we need it now.”

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But making meaningful changes to qualified immunity is complicated by the fact that civil rights cases in Massachusetts involving police misconduct often end up in federal courts, not under state jurisdiction. Cases brought under the state’s civil rights law must already meet a higher standard — one that requires plaintiffs to prove that officers not only violated their civil rights, but did so with “threats, intimidation, or coercion” — even before qualified immunity might be considered.

Because cases often end up in federal court, lawyers and judges dealing with a qualified immunity defense in state courts do not have much case law to go on in their jurisdiction. It’s “judge-made law,” Boston civil rights attorney Howard Friedman said, and judges will dismiss cases because there is not enough legal precedent — a problem carefully written legislation could potentially eliminate.

He likened the doctrine to an ever-changing “amorphous blob.”

“Essentially police officers can say, ‘The law’s not clear, therefore I get a free pass,‘” Friedman said. “It has to be a violation of clearly established constitutional law.”

And the perceived threat of a qualified immunity defense — and the prompt dismissal or drawn-out and expensive appeals process it can bring — can be a barrier to even getting plaintiffs legal representation, he said. Friedman said he would like the Legislature to pass a stronger civil rights law and eliminate qualified immunity in state courts altogether.

“If it looks like there is going be an issue of qualified immunity, I have other cases I can take,” Friedman said.

Police unions have noted that qualified immunity can be a defense for government workers, not just officers. Firefighters’ unions have also filed statements opposing legislative changes to the doctrine.

A day after Michael Earielo was booked into the Worcester County Jail in 2010, he started complaining of back pain and difficulty standing and walking. Nurses at the jail wrote it off as symptoms of withdrawal from heroin, which Earielo had used before his arrest. Earielo insisted that this was different, and asked to see a doctor, according to a lawsuit. He was denied for 11 days, during which his condition kept deteriorating — an abscess on his back left him temporarily paralyzed, court records show.

The criminal charge against Earielo was later dropped. He now works as a counselor for people dealing with drug and alcohol addiction, and tried to file a lawsuit against the nurses he says denied him treatment at the jail. They claimed qualified immunity — that they were doing their jobs to the best of their ability, and should not be held liable. An appeals court recently ruled in Earielo’s favor, saying the case can move forward.

“It’s not fair that these individuals get to hide behind this curtain because they have it there for their protection,” Earielo said. “They’re professionals, they should be held accountable when they make the mistakes that they make, or because, in my case, didn’t give me the treatment that I needed.”


Gal Tziperman Lotan can be reached at gal.lotan@globe.com or at 617-929-2043.