September 23, 2021
Chairman Eldridge, Chairman Day, and Members of the Joint Committee on the Judiciary:
I am submitting testimony in my capacity as Chair of the Issues Committee of Progressive Massachusetts. We urge a favorable report for S.945, An Act to allow restitution for civil rights violations, and S. 946, An Act to Secure Civil Rights Through the Courts of the Commonwealth.
Progressive Massachusetts is a statewide grassroots advocacy group fighting for a Massachusetts that is more equitable, just, sustainable, and democratic. We are appreciative of the work that the Legislature did last session in passing police accountability legislation that created better standards for police professionalization as well as stronger limitations on the use of force. But there is more work to be done.
One area that was insufficiently addressed last session was qualified immunity (QI). QI is a court-made doctrine that shields police from accountability and prevents victims of police brutality from having their fair day in court. The QI doctrine holds that, unless a perfectly matched precedent can be found in which an officer was held accountable for violating someone’s constitutional rights, then the officer cannot be held accountable, even in cases where the victim has to incur significant medical expenses.
This creates a perverse Catch-22: if a case of misconduct has not previously been found to be a “clearly established” violation of the law, then a case can’t proceed, but if it can’t proceed, then new precedent can’t be established.
If that sounds nonsensical to you, that is because it is, and we need to change it by reforming QI. These bills would rebalance the scales of justice in support of accountability. Under these bills, QI would apply only when the law is clear that the police did not violate the law. If an officer has doubt about whether an action is lawful, they should refrain from shooting first and justifying later.
The current doctrine of qualified immunity denies justice and reinforces the systemic racism of our criminal legal system. Since last summer, people around the state have been taking to the streets in support of bolder action on racial justice and police accountability. By passing S.945 and S.946, the Legislature can show that they are listening.
Sincerely,
Jonathan Cohn
Chair, Issues Committee
Progressive Massachusetts