Police accountability in Massachusetts remains very much a work in progress.
On Beacon Hill, lawmakers passed a landmark police reform bill at the end of 2020 but left a lot of thorny issues to be resolved by more than a dozen commissions, which were given a year or more to sort them out. Yes, it was a way to kick the can down the road. In its best light, it was a way to search for consensus.
Today for the thorniest of those issues — qualified immunity for police — consensus remains elusive, and the commission assigned to study the issue has, yes, kicked the can down the road again. The Commission on Qualified Immunity, which issued its recommendations last week, voted 10-4 for a two-year “review” of the “implementation and administration” of the police reform law before recommending changes to qualified immunity.
The court-created doctrine of qualified immunity provides a legal shield for public officials, including police, from civil lawsuits for much of their conduct in the line of duty. The doctrine has come under increased scrutiny as a number of states have reexamined police accountability in the wake of the killing of George Floyd under the knee of a Minneapolis police officer.
If police could be held personally liable for abuses of authority and excessive use of force, the reasoning goes, there would be fewer abuses.
The Massachusetts Police Reform Law recognized that when it explicitly provided that qualified immunity would not be available as a defense to police who have been decertified by the newly constituted Peace Officer Standards and Training Commission. So, for example, an officer who was decertified for using a now-forbidden choke hold could presumably be sued under that provision, although it has not yet been put to a legal test.
In fact, the American Civil Liberties Union, in its written testimony to the commission, insisted the decertification of an officer “will likely take years” and that delay “will compromise the victim’s opportunity to seek timely justice in the courts.”
Commission cochair Michael Day, who also serves as House chair of the Judiciary Committee, disagreed, saying, “The way this [the POST commission] was set up was designed for swift action. If that doesn’t happen then . . . we’ll have to revisit it and make sure it does.”
Day, in an interview with the Globe editorial board, added, however, that he is banking on two other commission recommendations that could, if approved by the Legislature, “bring a sea change in how the courts will treat qualified immunity” in the state. And while he is the first to admit the recommendations are more “nuanced” than going directly at the doctrine of qualified immunity, they do have the potential to move the needle.
One recommendation is for a change in the Massachusetts Civil Rights Act to remove the “threats, intimidation, or coercion” requirement currently needed to bring an action against law enforcement officers.
In reality that has meant that nearly all such actions are currently brought in federal rather than state court. Eliminating that higher state bar for a civil rights action would encourage more of those aggrieved by police misconduct to use the state courts.
The second recommendation, another change to the civil rights law, would require judges to determine if the conduct in question violates an individual’s civil rights even if the suit is dismissed on the grounds of qualified immunity. In other words, it begins to set legal precedent.
As arcane as the recommendations sound, they are both important and not without controversy. Both made it through the 15-member commission with only eight votes.
Like football, police reform is indeed a game of inches.
Qualified immunity — which began as a brainchild of the federal courts back in 1967 — should, of course, be tackled at the congressional level. But given the dysfunction in Washington, that seems less likely with every passing day.
A half-dozen states, moved by the 2020 summer of activism and demands for racial reckoning in policing, have in the past 18 months revised their state laws to restrict the use of qualified immunity. Colorado was first, back in June 2020. Some states, like New Mexico, have restricted qualified immunity but also prohibited actions against individuals, allowing only the employer — say, the police department — to be sued.
The commission in its report noted, “there is insufficient information available at this time to determine the efficacy of [these] legislative actions.”
There remains broad consensus around the notion that excessive use of force, racial bias, and abuse of authority have no place in modern policing and that those guilty of any one of those ought simply to be gone. Crafting laws and policies that take that from the drawing board to reality isn’t easy, and consensus around the details is hard to come by. That means the votes will also be hard to come by.
The commission’s failure to go directly at the issue of qualified immunity is, therefore, nearly as understandable as it is disappointing.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.