By Kade Crockford, director of the Technology for Liberty Project at the ACLU of Massachusetts

During debate in the Massachusetts State Senate over legislation to strictly limit qualified immunity granted to public employees, Senator Ryan Fattman stressed that Massachusetts police officers are not like the bad cops we see in other states. Senator Fattman distanced Massachusetts police from the murder of George Floyd, arguing that cops in the Bay State are better than that. “We understand that our Massachusetts law enforcement officers are the best trained, well educated, and well-meaning in our nation, bar none,” he said. “The egregious sins of other law enforcement in other parts of our country should not be their burden to bear.”

But what about the egregious sins committed by police right here in Massachusetts? Senator Fattman’s speech extolling the virtue of cops in Massachusetts came less than two days after the federal Department of Justice released a scathing report about the Springfield Police Department’s narcotics unit, accusing the cops of engaging in a pattern or practice of unreasonable force in violation of the Fourth Amendment, threatening to murder and plant evidence on people, and using white supremacist language, among other egregious rights violations.

The report makes for disturbing reading. Its publication is all the more shocking given its origin. After all, Attorney General Barr—the top Department of Justice official—recently said Americans who don’t “support and respect” the police “might find themselves without the police protection they need.” Barr serves at the pleasure of President Donald Trump, who infamously complained that police officers do too much to protect arrestees from physical injury, and who just this week threatened to “take over” cities run by “radical libs” who, in the President’s mind, aren’t tough enough on crime.

This administration has conducted a grand total of one civil rights investigation into police departments nationwide, and they chose Springfield, Massachusetts. Even Barr couldn’t overlook the police abuses taking place in one of the biggest cities in the Commonwealth.

It’s impossible to read this DOJ report on the Springfield Police Department and come away believing, as Senator Fattman appears to, that there is no need to reform qualified immunity laws, which allow police to get away with violating people’s rights, consequence free.

Among the report’s findings:

• Cops routinely hit people in the face and head: “Narcotics Bureau officers regularly punch subjects in the head and neck area without legal justification…Tellingly, a former Narcotics Bureau officer reported that people know that if you mess with the SPD or try to run, you ‘get a beat down.’ Incident reports we reviewed support this officer’s observation.”
• Cops dress as civilians, don’t announce they are police, and immediately use force: “In many situations, Narcotics Bureau officers quickly escalate their situational responses to involve force without first identifying themselves as officers or issuing verbal commands. Given that Narcotics Bureau officers often operate as plainclothes officers, they often do not have uniforms or other indicators that would help distinguish them as law enforcement officers. Nonetheless, we found that officers fail to take basic steps to identify themselves before resorting to force.”
• Cops routinely lie in their police reports about the extent of the injuries they cause to their victims: “In the case of P.J., he claimed that he fled in his vehicle because he was being chased by an unmarked vehicle and did not know law enforcement officers were in that vehicle. In one report, an officer describes ‘extracting [P.J.] through the passenger side door and proned [him] face down onto the pavement.’ Photos show he sustained significant injuries—severe contusions and dark bruising on the right side of his face, a large black eye, a gash on the bridge of his nose, and additional abrasions on the left side of his face and the left side of his nose. These injuries are inconsistent with the officers’ reports that P.J. had ‘small cuts to the face,’ and are instead consistent with repeated strikes of his head.”

The DOJ report describes one particularly shocking case in which officers face criminal charges:

The indictment alleges that the sergeant kicked one of the youths in the head, spat on him, and said, “welcome to the white man’s world.” Further, the sergeant allegedly threatened to, among other things, crush one of the youth’s skulls and “fucking get away with it,” “fucking bring the dog back [and] let him fucking go after” a youth, “fucking kill [one of the youth] in the parking lot,” charge a youth with a murder and “fucking make it stick,” and that he would “stick a fucking kilo of coke in [one of the youth’s] pocket and put [him] away for fucking fifteen years.” The indictment also alleges that during interrogation, the sergeant “pointed to blood on his boot” and told one of the youths that if he lied, the youth’s “blood would be on [the sergeant’s] boot next.”

Are these the same “best trained…well-meaning” police officers Senator Fattman talked about in his floor speech last week?

Qualified immunity in Massachusetts allows police to get away with appalling rights violations.

Currently, state law and court precedent allow police officers and other public employees to skirt civil liability as long as they can demonstrate that the law they violated was not “clearly established” at the time of the incident. In other words, victims of even egregious police abuse are denied their day in court, as long as no public official has been found to have broken the law by committing the exact same abuse against someone else in the past. This is qualified immunity.

S.2800, passed this week by the Massachusetts state senate, would place limits on this doctrine, ensuring that victims of police brutality and constitutional rights violations have recourse to hold police departments civilly liable for the harm they cause.

What does qualified immunity mean in practice? Here are just three examples of civil rights lawsuits courts in Massachusetts have dismissed, finding that the police lawbreaking at issue wasn’t clearly established:

• Sexual assault by cop. When a police officer’s midnight search for drugs in a woman’s apartment turned up nothing illegal, he took her to the hospital and made a doctor search her vagina, where he also did not find drugs. The officer got a warrant allowing this vaginal search by telling the magistrate that a confidential informant told police the woman had once gone into the bathroom and then returned with drugs. The informant also said he heard the woman kept drugs in her vagina. The woman’s civil rights lawsuit was thrown out of court because the police officer’s conduct didn’t violate clearly established law. Rodriques v. Furtado, 575 N.E.2d 1124 (Mass. 1991)
• Killed for holding a pen. A state trooper responded to a call for help from a distressed driver. When the trooper arrived on scene, the driver was out of his car “yelling and jumping up and down.” The driver began walking towards the officer with a pen in his hand, the trooper yelled at him to stop, and when he didn’t, the trooper pepper-sprayed the man and shot him twice. The man died later at the hospital. A lawsuit filed by the man’s family was dismissed; the judge cited qualified immunity. Justiniano v. Walker, No. 15-cv-11587-DLC, 2018 WL 4696741 (D. Mass. Sept. 30, 2018), appeal docketed, No. 20-1063 (1st Cir. Jan. 15, 2020)
• Subjected to torture because of a disability. Prison guards at MCI-Norfolk repeatedly assigned a man who could not climb stairs to a cell on the second or third floor. When he refused to go to his assigned cell because he could not climb the stairs, guards punished him by putting him in solitary confinement. A court ruled the guards couldn’t be held liable because the laws they broke weren’t “clearly established.” Shedlock v. Department of Correction, 818 N.E.2d 1022 (Mass. 2004)

Police unions and police groups like the Massachusetts Chiefs of Police Association and the Massachusetts Association of Minority Law Enforcement Officers have been aggressively lobbying lawmakers to reject meaningful changes to qualified immunity law—or, like the Boston Police Patrolman’s Association, shamelessly lying about the law’s meaning to mislead the public.

In spite of what police organizations and their supporters in this fight are saying, the reform the Senate passed would preserve qualified immunity under state law, but reform it to apply only where the conduct at issue was consistent with the law at the time. Public officials would still be able to get a case dismissed if it is frivolous or prevail on the merits if it lacks merit. But there is a huge upside for accountability and justice for victims of police misconduct.

Senator Fattman may not have read the DOJ report on the Springfield Police Department’s horrific abuses. But every state legislator should. And then they must act. If you agree, tell your lawmakers to swiftly pass legislation that includes strong qualified immunity reform.