Memorandum on Qualified Immunity
I. Introduction
The current civil rights law in Massachusetts prevents plaintiffs from recovering damages for violation of their constitutional rights for two reasons. First, it requires the violation of rights to include “threats, intimidation or coercion.” Further, the Massachusetts Civil Rights Act (“MCRA”) that is read in harmony with the federal law on civil action for deprivation rights[1] also entitles a public official to qualified immunity from liability. This prevents a plaintiff from recovering damages for violation of their rights unless the defendant has violated “clearly established law.”[2] This is another reason that prevent plaintiffs from holding police accountable because it requires the plaintiff to point to an appellate case in existence at the time of the incident with similar facts and circumstances that established the unconstitutionality of the specific police conduct complained of.[3]
The Reform, Shift and Build Act (“Act”) proposes two important changes to the existing law to hold police accountable for civil rights violation. First, it would allow recovery for rights violations without a showing of threats, intimidation or coercion. Second, it shifts the focus of the test away from an inquiry into whether the claimed civil rights violation was “clearly established law.” The Act does not eliminate qualified immunity.[4] An official will continue to be immune if the person’s conduct was objectively reasonable.[5]
II. Massachusetts Civil Rights Act and Qualified Immunity (MCRA)
The MCRA provides protection against interference, by threats, intimidation, or coercion, with the rights of a person conferred by federal and state law.[6] However, a public official may be entitled to qualified immunity from liability under MCRA while carrying out duties involving the exercise of discretion.[7] A claim of qualified immunity is evaluated by determining whether: (1) the claimant has an alleged deprivation of an actual constitutional right; (2) the right was clearly established at the time of the alleged action or inaction; and (3) if both questions are answered in the affirmative, whether an objectively reasonable official would have believed that the action taken violated that clearly established constitutional right.[8]
The MCRA has been criticized by civil rights attorneys for making it nearly impossible for people of Massachusetts to hold police liable for civil rights violations. It has been argued that the MCRA is severely limited by an ill-filling requirement that the violation of rights must include “threats, intimidation or coercion.”[9] This high bar has led to absurd results, where the government has clearly and directly violated a person’s constitutional rights, but cannot be held accountable under the MCRA.[10]
III. Qualified Immunity under S. 2820 - Reform, Shift and Build Act.
The Act, allows a person to institute and prosecute a civil action for injunctive and other appropriate relief for infringement upon their rights by a person acting under color of law. The proposed changes to the MCRA would allow recovery for rights violations without a showing of threats, intimidation or coercion.[11] This will make the state courts a more viable alternative to the federal courts in excessive force cases.[12]
The Act also specifies that in an action for monetary damages under the MCRA, qualified immunity shall not apply unless no reasonable defendant could have had reason to believe that such conduct would violate the law at the time the conduct occurred.[13] This means that qualified immunity does not apply when a reasonable defendant would believe that such conduct would violate the law.[14] This construction is extremely close to the existing law in excessive force cases as it would still allow early dismissal upon a showing of objective reasonableness.[15] The only change is that it omits the alternative lower bar for early dismissal - that existing law does not include a “clearly established” prohibition on the conduct.[16]
With regard to the issue of indemnification, the Act states that it does not affect existing provisions with respect to indemnification of public employees.[17] A nationwide study found that 99.98% of civil rights settlements and judgments resulting from police misconduct were paid by employing agencies.[18] Another survey showed that police employers in Massachusetts pay all or almost all of the settlements and judgments.[19]
IV. Filing a civil rights suit under the MCRA
Under the MCRA, suit may be brought against any person who has interfered with protected rights.[20] It has been held that the Commonwealth and its departments, as well as municipalities, are not subject to suit under MCRA because they are not “persons” within the meaning of the act.[21] An action must be brought in the Superior Court for the county in which the conduct complained of occurred or in the county in which the person whose conduct complained of resides or has his or principal place of business.[22] A person may seek damages in addition to injunctive or equitable relief and is entitled to costs and reasonable attorney fee if the action is successful.[23]