When officers use excessive force and someone sues, police are not always held accountable in a civil lawsuit. That can be, in part, because of a controversial defense known as qualified immunity.
Lawmakers at the State House this week are weighing a massive compromise police reform bill that could change that legal avenue, making it slightly easier for people to successfully sue police officers and other public officials who violate people’s constitutional and civil rights.
What Is Qualified Immunity
Qualified immunity isn’t a law on the books passed by elected officials. It’s a judicial doctrine developed over decades, through court decision after court decision.
Essentially, qualified immunity says a government official can only be held liable for unconstitutional actions if it’s “clearly established” in existing case law that the conduct was unlawful. Plaintiffs need to point to another, similar case already decided by a court that the action in question was illegal in order for the lawsuit to go forward.
If a defendant claims qualified immunity, judges are faced with two questions: was the conduct unconstitutional? And if so, did the officer or public official violate a “clearly established” law? Answer no to that second question, even if the conduct was illegal, if there isn’t a case with similar facts, the lawsuit is dismissed.
Some civil liberties advocates, attorneys, academics and former judges say the doctrine has deep impacts on police behavior, the rights of plaintiffs and the ability for a case to even see the inside of a courtroom.
Others like Leonard Kesten, an attorney who has represented cities and towns facing lawsuits against officers, however, point out that qualified immunity doesn't often lead to a case being dismissed. He argues that it’s not a "get out of jail [free] card" for officers accused of misconduct.
“It is a rare circumstance where something egregious happens and qualified immunity is granted,” he says. “From our perspective, it is an issue of fairness to [government officials] that you should not be liable if you didn't know — couldn't know — that this was improper.”
One of those cases involved Judith Gray. In a manic state, she walked out of the hospital in Athol where she was being treated for bipolar disorder. An Athol officer found her shuffling down the sidewalk, barefoot. Gray refused to go back to the hospital. The officer, who outweighed her by 75 pounds, dropped her to the ground and tried to handcuff her. When Gray kept resisting — holding her hands under her chest to prevent them from being handcuffed — the officer tased her in the back. He was then able to handcuff her.
Could a jury have found the officer used excessive force? Yes, a federal appeals court said. But did the officer know it was wrong to tase a mentally ill woman in the back for refusing to be handcuffed? No, the court ruled.
"Because there were no cases like this, he wouldn't have known at the time he did it that he could be violating her rights," says Kesten, who represented Athol in the case. "He gets qualified immunity."
Matt Segal of the ACLU of Massachusetts represented Gray. He says there were plenty of cases on the books about limiting the use of tasers on people who resist arrest without violence.
“But there wasn't a case with these same facts," he explains. "And for that reason, this officer was immunized for hurting my client.”
Other Mass. Qualified Immunity Cases
Lawsuits against police can and do go to trial or lead to settlements with plaintiffs, even when qualified immunity is invoked by defendants.
In a small sample of cases reviewed by WBUR, more than $4.2 million was paid out in settlements for five cases after a judge denied the officers qualified immunity.
Since 2014, more than $36 million collectively has been paid out for police misconduct claims against state police, Worcester, Springfield and Brockton, according to records obtained by WBUR. The city of Boston has so far not provided records WBUR requested that detail police misconduct payouts. The Boston Globe reported in 2015 that the city had spent $36 million to settle police lawsuits in the prior decade.
Mark Leahy, executive director of the Massachusetts Chiefs of Police Association and the former police chief in Northborough, points to those payouts as proof qualified immunity isn't protecting cops who break the law.
"For the people who say that qualified immunity prevents these cops from being held responsible, I would say, well, how do you explain that?" he says.
Kesten, the attorney who has represented cities and towns facing lawsuits, says once all attempts to dismiss a case fail, defendants are more willing to pay up.
“Then you know you're facing a jury,” he explains. “Once the court has said, ‘this is definitely going to trial’ .... then the calculus of whether the case should be settled changes.”
In Massachusetts, one of the largest payouts for a case involving a qualified immunity defense went to the family of Eurie Stamps, who was shot and killed by a Framingham SWAT officer in a midnight raid in 2011. Stamps, 68, was lying on his stomach with his hands on his head, as the officer pointed the gun at Stamps with his finger on the trigger, safety off.
Framingham claimed qualified immunity. That move brought the case to the U.S. Court of Appeals.
Framingham, represented by Kesten, argued the shooting was an accident — and so not a civil rights violation — and that because there was no clearly established law against it, qualified immunity. Both the lower and appeals court disagreed.
After the appeals court decision, the city paid Stamps’ family $3.75 million.
One study by UCLA’s Joanna Schwartz found that 99.98% of the time city governments paid for lawsuits, not police officers. In Boston, Schwartz's research found “officers are more likely to be struck by lightning than they are to contribute to a settlement or judgment in a police misconduct suit.”
No Boston officers were required to come up with money for any of the more than $16 million in settlements and judgments that she identified from 2006 to 2011.
Not Just Excessive Force Cases
In Massachusetts, qualified immunity isn’t just invoked in excessive force cases and not just against police. And in some cases, courts rule that the conduct is outrageous enough to not need a similar case on the books.
In one such case, nurses at the Worcester County jail argued for qualified immunity in a lawsuit that claimed they ignored a man’s plea for treatment for more than 10 days after he was arrested in 2010. He developed a spinal infection that left him with severe and permanent disabilities. Massachusetts' Supreme Judicial Court denied the nurses' bid just last month, saying their alleged conduct was “so egregious and obvious, the plaintiff does not need to identify a preexisting case on point or a consensus of persuasive authority.”
In Worcester, a pair of police officers asked for qualified immunity after they were accused of lying on a police report about why they arrested a man on drug charges. He was held for two and a half months before charges were dropped. The federal district judge ruled the officers should have known a warrantless arrest was illegal, and that falsifying or misrepresenting facts in order to arrest someone would violate someone’s rights. Worcester eventually paid the man $18,000 in a settlement.
Then, there’s the case against James Hanchett. He was the supervisor of the Amherst drug lab when disgraced chemist Sonja Farak was for years dipping into drug samples and cooking crack cocaine for her personal use, all while signing off on drug testing certificates used to convict people. Thousands of cases have been dismissed because of her actions.
The First Circuit Court of Appeals ruled that Hanchett’s lax supervision was protected by qualified immunity.
Nationally, a small number of cases against police are dismissed because of qualified immunity. A study by Schwartz, the UCLA researcher, finds that of nearly 1,000 cases she reviewed where qualified immunity could be raised, just 3.9% were ultimately dismissed on qualified immunity grounds. Beyond that doctrine, Schwartz writes, there are other legal defenses invoked by police and government officials. Her study finds that in most of the cases she reviewed, the lawsuits were dismissed without payment for reasons other than qualified immunity.
Nancy Gertner, a former federal judge in Massachusetts, says one of the main arguments for keeping qualified immunity — that officers will second-guess themselves or get hit with frivolous lawsuits — does not stand up. Courts already have high barriers for proving excessive force or unlawful searches.
“The odds are juries will be forgiving of an officer who's making a spur of the moment decision,” Gertner says. “That's always been the case. The odds are the judges will be forgiving as well. So the notion … that the republic is going to fall if qualified immunity is eliminated, is absurd.”
Still, attorneys seeking its end say qualified immunity affects many more cases than the ones that are dismissed. Some cases never see the inside of a courtroom because lawyers know the burden is so high to prove the law was “clearly established.”
Cases can drag out. Even before a case makes it to a jury and a verdict, either party can appeal a qualified immunity decision. That pushes lawsuits into the appeals court early and often.
Luke Ryan, a criminal defense and civil rights attorney in western Massachusetts, says few allegations of police abuse become lawsuits, in part because the bar for what will be a successful case is so high and attorneys who do this work are so few.
“If somebody comes in, and I just don't have the bandwidth to take on a new criminal case, there's lots of attorneys, good attorneys, that I can refer people to,” he explains. “But the same is not true with respect to civil rights cases. The civil rights bar is really, really small. And I think it's a function of just how the deck is stacked against plaintiffs.”
Debate In Legislature
Massachusetts lawmakers are now weeks into hashing out a compromise between bills passed by the House and Senate. Advocates say the House bill doesn’t do much to change qualified immunity — it would only eliminate the doctrine for officers “decertified” by a proposed statewide commission.
But the Senate bill would make significant changes that would put the burden on officers and public officials to make the case as to why they shouldn’t be held liable. Qualified immunity would be denied when “a reasonable defendant could have had reason to believe that such conduct would violate the law.”
“The Senate bill could make a meaningful difference," says Segal, with the ACLU. "And that is because it is designed to relieve the burden on the plaintiff to overcome qualified immunity and instead put the burden on the police officer to show why he should get qualified immunity."
Massachusetts wouldn’t be the first state to alter qualified immunity. In June, Colorado passed a sweeping law that eliminates the doctrine in state courts as a defense for police who violate a person’s civil rights. It also goes as far as to make officers personally liable for up to $25,000 in damages.
Leahy, the head of the chiefs association, says he isn't wholesale against changing the law regarding qualified immunity. He thinks lawmakers should study the doctrine and how it's used, as proposed in the House bill.
"At least then ... the legislators can make an informed decision," he says. "Right now, it's an emotional decision."
If the more sweeping Senate bill changes go into effect, it will only change state law, not the federal courts where the majority of excessive force cases are now filed. Attorneys say that will likely lead to more cases filed in state courts. And if those cases make it to Massachusetts' highest court, the Supreme Judicial Court, that will create more "clearly established" case law to cite in federal cases.
This segment aired on August 4, 2020.