A Massachusetts commission charged with exploring changes to qualified immunity for police officers in the state did make some "important" recommendations, but ultimately failed to substantively tackle the controversial doctrine, according to activists.

The Massachusetts Legislature's Special Commission on Qualified Immunity posed two positive changes lawmakers can enact that could make it easier to hold police officers accountable for violating citizens' civil rights, say advocates for police reform.

But the commission punted on suggesting any truly meaningful reforms to qualified immunity, choosing instead to "wait and see" when it issued its final report Tuesday, those advocates insist.

"It's sort of a tale of two reports," Matthew Segal, legal director of the ACLU of Massachusetts and a member of the commission, told Law360.

At least one of the report's recommendations is "really important" and could improve justice and policing, he said. But other aspects of the report are "quite disappointing" and mean qualified immunity is likely to remain "a significant impediment to justice" in the state.

'Wait and See'

The report's first recommendation, and the one drawing criticism from police accountability advocates, is for lawmakers to further evaluate how police reform legislation enacted in 2020 impacts accountability and policing before recommending any major reforms to the qualified immunity doctrine in Massachusetts.

That doctrine shields government officials, including police officers, from personal liability for violating people's rights unless it has previously been "clearly established" that their misconduct was illegal.

Defenders of the doctrine, particularly in law enforcement, say qualified immunity is essential to protecting police from being punished for actions they take in good faith. The doctrine's detractors counter that what it really does is shield police officers from accountability and keep victims of police violence from obtaining justice.

Either way, the doctrine has come under increasing scrutiny in the wake of recent, high-profile instances of police violence, particularly against people of color. Colorado became the first state to limit the doctrine's use by law enforcement in 2020, and New Mexico wholly prohibited it as a defense in 2021, according to the report.

But commissioners in Massachusetts were "unable to reach a consensus" about whether to end, reform or leave intact the current qualified immunity standard, they admitted in the report.

"The consensus was to take a wait-and-see kind of approach. It's kicking the can down the road," said Professor Karen Blum of Suffolk University Law School, who testified before the committee in June.

"There clearly wasn't agreement on what if anything to do about qualified immunity, which was really their charge," according to Blum.

That charge came from 2020 police reform legislation that established the 15-member, special legislative commission to study qualified immunity's impact on justice in the state. The law also created a certification process for officers, identified when force can be used and banned chokeholds, among other reforms.

The commission's final report recommended taking two years to evaluate how those reforms impact police accountability before making changes to qualified immunity.

And activists, including some involved with the commission itself, are unhappy with that decision.

"It's disheartening to see a report talk about continuing a conversation. This is not, for folks who are in overpoliced communities, an academic exercise," said Luke Ryan, a Massachusetts civil rights attorney who testified before the commission.

"It is absurd to suggest that more data is needed to assess the impact of qualified immunity. We need reform now. We can't sit around waiting for more years while our communities suffer," Iván Espinoza-Madrigal, executive director of Lawyers for Civil Rights and a commission member, said in a statement.

The Massachusetts Association for Professional Law Enforcement and the Massachusetts Coalition of Police, both of which also provided testimony to the commission, did not respond to requests for comment.

But criticism of the report is unfair, according to commission co-chair and state Rep. Michael S. Day, D-Middlesex, who insists the report doesn't call for simply hitting pause on any reform efforts.

"That's not the case at all. We've called for a continued evaluation and discussion about the impact and the effect of the changes we made in police reform, including qualified immunity," Day told Law360. "If you look at these recommendations as a whole instead of picking them out one at a time, they're going to help us effectuate exactly what the intent was behind police reform.

"This is part of the conversation. It's certainly not the end of the conversation," Day said.

But the police reform law is unlikely to have much if any impact on qualified immunity, according to Blum. The law says an officer who is "decertified" cannot raise a qualified immunity defense, but if an officer's conduct is so egregious it leads to decertification, they likely wouldn't be able to claim qualified immunity anyway, she points out.

And more "evaluation and discussion" is unnecessary since everything the commission heard and read demonstrated that qualified immunity harms the administration of justice, according to Segal.

"We heard that time and again from experts, we got examples of that in case law, we saw studies demonstrating it. And yet there's this recommendation that says we can't have any recommendations yet, we need to wait," Segal said. "And that conclusion is not supported by the evidence."

'Significant' Reforms

The commission did, however, make two other important recommendations, according to activists.

The first of those is to remove from the Massachusetts Civil Rights Act language requiring plaintiffs to show that any civil rights violation by a police officer involved "threats, intimidation or coercion" in order to hold the officer accountable in court, according to the report.

That requirement, which Segal called "an immunity on top of qualified immunity," means that victims of police violence in the Bay State can almost never sue over the use of excessive force in state court since an officer's actions have to be not only illegal, but must also involve coercion or intimidation.

"If an officer just shoots you without threatening you or coercing you, you don't have a claim," Blum explained.

The language, which is a quirk of the fact that the MCRA was originally intended to apply to private rather than government actors, according to experts, means victims of police brutality in the state usually have to file suit in federal court under federal law.

So the commission's recommendation to amend the MCRA to do away with that language is a very important and positive one, according to activists and commission members.

"If the Legislature takes that up and that becomes law, that will make a meaningful difference to victims of police violence in Massachusetts, and it will also improve policing in Massachusetts," Segal said.

The report also recommended amending the MCRA to require judges considering qualified immunity claims to make a written determination about whether the alleged conduct violated a plaintiff's civil rights, even if the court must dismiss the case because of qualified immunity.

This change is meant to address the legal requirement that officers know their conduct has been "clearly established" as illegal in order to waive qualified immunity, Day explained. To meet that "clearly established" bar, the U.S. Supreme Court has said plaintiffs must be able to point to binding precedent involving factually similar situations.

But that precedent can't be established because these cases are usually dismissed as a result of qualified immunity, according to activists.

So requiring judges to determine whether a police officer's conduct violated someone's civil rights, even if that judge ultimately dismisses the claim, could help create precedent for future cases with similar fact patterns, Day said.

Taken together, those two recommendations could make it easier for victims of police violence to succeed in Massachusetts courts, according to Day.

"This is a significant pair of recommendations that are going to significantly alter the landscape when it comes to qualified immunity," he said.

Perhaps more importantly, these proposals, which Blum called "two significant steps forward," are less controversial than abolishing or reforming qualified immunity. So they may not meet the same kind of resistance, Blum points out.

"I think that these proposals actually have a good chance of going somewhere," she said.

But Massachusetts residents will likely have to wait for anything more substantial to be done about qualified immunity, according to experts.

"At the end of the day there just wasn't the political will to do something like Colorado or New Mexico did, take a big step," Blum said. "It just wasn't going to fly here."

"It's disappointing that it looks like people of the commonwealth of Massachusetts are going to have to wait a substantial amount of time before there is any possibility of revisiting this subject," Ryan said.

But others, including commission members Segal and Day, seem more optimistic that this report doesn't mean qualified immunity reform is doomed in the Bay State.

"I don't think that this commission recommendation is the end of the story, and indeed it wasn't the beginning of the story," Segal said.

"This came from people, communities calling for change," he added. "I don't think they're going to stop doing that."

--Editing by Katherine Rautenberg.

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