Police oppose new plan to overhaul qualified immunity

BOSTON — The contentious debate over qualified immunity for police officers returned to Beacon Hill this week as law enforcement leaders forcefully pushed back against a bill that would ease the path for civil rights claims against officers in Massachusetts courts.

At a Joint Committee on the Judiciary hearing Tuesday, police chiefs opposed a measure that would remove the requirement that plaintiffs prove “threats, intimidation or coercion” in civil rights lawsuits brought against law enforcement officers. The bill was filed by committee co-chair Rep. Michael Day (D-Stoneham).

“This is not about shielding misconduct,” said Eric Atstupenas, general counsel for the Massachusetts Chiefs of Police Association. “Accountability certainly exists through federal litigation, through [Peace Officer Standards and Training] decertification, through strong internal discipline. What does not exist is a state ready for the wave of litigation this bill would invite.”

The bill marks a revival of efforts that have surfaced in every legislative session since 2020, when the murder of George Floyd in Minnesota sparked nationwide calls for police accountability. That year, Massachusetts lawmakers passed sweeping reforms but fell short of dismantling qualified immunity entirely.

The qualified immunity bill represents one of the few remaining flashpoints from that sweeping 2020 police reform law, which created the Peace Officer Standards and Training (POST) Commission and limited qualified immunity in cases involving decertified officers.

A special commission chaired by Day and Sen. Jamie Eldridge examined the qualified immunity doctrine in 2021 but was unable to reach consensus on broad reforms. 

The panel did, however, recommend removing the “threats, intimidation or coercion” language from the Massachusetts Civil Rights Act. Commissioners said they found there may be “egregious” civil rights violations that do not necessarily involve threats, intimidation or coercion, and said that clause “effectively eliminates a plaintiff’s right to seek redress in state court for violations of civil rights by police officers, especially rights guaranteed by state law.”

The panel also called for courts to provide written findings on objectionable conduct when granting immunity.

Day’s bill would codify those recommendations. In addition to removing the coercion requirement, it would require courts to document what actions, if proven, would constitute a violation of someone’s civil rights — even if the officer is ultimately granted immunity due to the conduct not being clearly established under existing precedent.

Day defended that section of the bill during pointed exchanges with Atstupenas, arguing the measure would improve legal clarity and protect future plaintiffs.

“We can’t create precedent if we don’t know why this isn’t being applied or is being applied,” Day said. “Now we’re going to list out what the problematic conduct was. You’re going to be excused from this, but officers engaged in this going forward will not.”

Asked whether the police chiefs opposed that portion of the bill, Atstupenas said, “We did not testify on that piece on purpose,” and that they were “not necessarily directly opposing it… our primary focus is on the threat, intimidation and coercion aspect of it.” Later, Day continued to press them for their opinion, and Atstupenas said the police chiefs “indirectly” oppose that piece of the bill as well.

Bridgewater Police Chief Christopher Delmonte also spoke against the legislation, emphasizing its potential impact on morale, recruitment and split-second decision-making in the field.

“I can tell you, as the chief of 15 years, I make mistakes. I’m an imperfect human being,” Delmonte said. “We feel as though changes to qualified immunity are going to have a negative impact on the job that we do.”

Delmonte said qualified immunity is not a free pass for officers but a protection for those operating in high-pressure situations.

“I don’t know that [qualified immunity] has had a significant chilling effect on people that seek retri — not retribution, but seek to have their grievances addressed in this way. I don’t think this serves as a prohibition to doing that,” he said.

Advocates seeking to dismantle qualified immunity were frustrated by the 2021 commission. The ACLU of Massachusetts and Lawyers for Civil Rights called the commission’s work a failure and accused it of punting on meaningful reform.

“The longer we leave qualified immunity in place, the longer victims will continue to bear the full cost of that violence — medical bills, funeral expenses, and the emotional trauma of experiencing state violence,” ACLU Legal Director Matthew Segal said at the time.

Supporters of reform have argued in the past that current state civil rights law sets an unusually high bar by requiring plaintiffs to prove coercive behavior, even in cases of excessive force or rights violations. The commission noted that “egregious” conduct by police officers may still go unpunished under the state statute if it does not involve threats or intimidation.

But Atstupenas said removing that requirement would open the floodgates for litigation with little merit. He argued that the proposal would shift a significant number of lawsuits into state courts ill-equipped to handle them.

“If this bill were to become law, the state would become the preferred forum, not because it serves victims any better, but because it becomes the force of leverage, or it creates leverage, not justice,” he said. “It’s going to create longer timelines, higher costs, more settlements driven by financial pressures, not by the merits of the particular case. The only winners here will be those who know how to turn litigation into a business model.”

“Every dollar spent defending suits is a dollar taken away from training, from community programs, from the very investments that build trust and prevent harm,” he said.

The committee received two pieces of written testimony about the bill, both from police organizations in opposition to it. One was from the Massachusetts Chiefs of Police Organization, and the other from the Massachusetts Fraternal Order of Police, who said the bill would subject police officers and the state to “constant tort actions and cause many to question why they would be a law enforcement officer when you can be subject to civil actions by just doing your job correctly.”

House members of the committee have until Sept. 27 to make a recommendation on the bill.