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How Qualified Immunity Became The Sticking Point In Mass. Police Reform Debates04:43
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A protester confronts Boston Police with hands in the air in front of Forest Hills Station in Jamaica Plain. (Jesse Costa/WBUR)
A protester confronts Boston Police with hands in the air in front of Forest Hills Station in Jamaica Plain. (Jesse Costa/WBUR)

Massachusetts lawmakers are working to reconcile their differences over police reform, with a joint House-Senate committee working on a compromise that can pass both chambers and be signed by Gov. Charlie Baker.

One area where the two chambers differ involves changes to qualified immunity, the doctrine that protects police officers and other public officers from lawsuits. Police unions have been fighting to keep it unchanged, while others want it abolished.

But the discussion about qualified immunity is fraught with misunderstanding about how the statute is applied, even among law experts.

Deborah Ramirez, a professor of law at Northeastern University, joined WBUR's Morning Edition to explain qualified immunity and how it has evolved. Here are highlights of the interview, lightly edited for clarity.

Interview Highlights

On the origins of qualified immunity

The doctrine began as a way to ensure that police officers had fair notice that their conduct was unlawful, and it protected officers from being personally liable for conduct they believed was lawful or for situations when the law was unclear. The "clearly established law" doctrine has evolved into a pretty ridiculous requirement that the plaintiff has to find a prior case with an almost identical fact pattern. It is an interpretation that has gone astray.

On the application of qualified immunity in Gray v. Cummings

That's an argument that there was not a specific case of a mentally ill person who was subdued but was passively resisting arrest at the time. The court should focus on the conduct. There was no reason to use force here. And it is fair to hold an officer liable for excessive use of force, even if the particular way in which he exercised force has not been adjudicated by a court in a prior case.

On arguments that qualified immunity must be kept intact to protect police

We haven't had a Massachusetts-specific study, but the best national study looking at 1,183 cases is from UCLA Law School. Qualified immunity caused cases to be dismissed in 3.9% of cases. And I do not think that the decisions of the court are going to hamper policing. Police officers can and should do what they need to do, but they should not be allowed to engage in unconstitutional behavior.

On the bills in the state Legislature

I think the Senate bill is a good bill. It essentially does abolish qualified immunity, except when no reasonable officer would have known that the conduct violated the law. So that lowers the bar for the plaintiff. It focuses on conduct, not whether there's a prior case with almost identical facts.

The House bill, I think, is meaningless legislation. It takes years to decertify an officer after an incident. Now, plaintiffs are going to try to prolong and continue litigation until after the decertification process, or they're going to try to undo the results of litigation after an officer is decertified. This is messy. It's unlikely to solve any of the problems with qualified immunity, and it's not serious reform.

This segment aired on July 30, 2020.

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Deborah Becker Twitter Host/Reporter
Deborah Becker is a senior correspondent and host at WBUR. Her reporting focuses on mental health, criminal justice and education.

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