Massachusetts legislature seeks to limit qualified immunity

The Supreme Court’s expansive interpretation of qualified immunity leads to perverse results, reported the Boston Globe.

Officers who violate Americans’ First Amendment right to peaceful protest can essentially immunize themselves from accountability by arresting demonstrators for disorderly conduct or resisting arrest — over-used and easily trumped-up charges.

The court’s interpretation of the law undercuts civil rights protections enacted by democratically elected legislators, and it undermines efforts to demand reform. Qualified immunity incentivizes misbehavior that skirts the law. And it sends precisely the wrong message to police officers whose duty it is to serve their communities.

Now is the time for decisive legislative action.

The Supreme Court had an opportunity to review qualified immunity earlier this year and declined, despite a powerful dissent from conservative justice Clarence Thomas. The liberal justices Sonia Sotomayor and Ruth Bader Ginsburg urged the Court to reexamine the protection in 2018, writing in their dissent (from a majority decision that exonerated a police officer in a shooting) that it “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

The George Floyd Justice in Policing Act, passed by the US House of Representatives on June 25, would have ended qualified immunity for police but is languishing in the Senate.

At the state level, Massachusetts has a chance to succeed where federal lawmakers and judges have failed. The police reform bill advanced by the state Senate would limit qualified immunity under state law such that lawsuits could proceed, and officers could be made to pay for wrongdoing. Police would continue to be protected in cases where no reasonable officer would have known that the conduct in question would violate an individual’s rights. And municipalities could still choose to indemnify officers found liable in courts of law.

This approach strikes the right balance. The Senate bill would not end qualified immunity, which has value as a tightly controlled protection against frivolous lawsuits, but it would reduce perverse incentives for officers, and it would promote the accountability owed to all citizens in a constitutional democracy like ours.

Officers who know they — or their department — could be sued and forced to pay for wrongdoing would behave differently. They would think twice about using excessive force against the George Floyds of the world, who are protected by the Fourth Amendment from unreasonable searches and seizures and entitled to equal protection and due process. And officers would be less inclined to assault Americans exercising their First Amendment rights.

This nation is devoted to freedom, to combating racial discrimination, and to making government accountable to the people. Legislators today, like those who passed landmark civil rights legislation more than 50 years ago, must take a stand for equal justice under law. Shielding police misconduct offends our fundamental values and cannot be tolerated.

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