By Gavi Wolfe, legislative director of the ACLU of Massachusetts

In its recently released report, the Special Commission on Qualified Immunity recommended a critical reform to Massachusetts’s civil rights laws to improve the administration of justice. This recommendation might fly under the radar, but it deserves high praise and quick action by the legislature. We thank commission Co-chairs Representative Mike Day and Senator Jamie Eldridge for their support of this important recommendation, for their leadership of the commission (on which the ACLU served), and for their continued commitment to justice.

Massachusetts’ civil rights law has a fundamental flaw—even more basic than qualified immunity—that prevents victims of direct, egregious civil rights violations from having their day in court or from being reimbursed for hospital bills, medical treatments, physical therapy, job loss, and other related expenses when they are victims of police violence and misconduct. 

Unlike federal law or, to our knowledge, the law in any other state, the Massachusetts Civil Rights Act has been interpreted to prohibit, rather than to authorize, lawsuits for direct violations of civil rights. The law prohibits victims of police misconduct from going to court unless the police violence was specifically accompanied by “threats, intimidation, or coercion.” This language has been interpreted to require plaintiffs to show not simply that their rights were violated, but that the violation occurred as a result of “threats, intimidation or coercion.” 

As the commission’s report explains, “[u]nder this interpretation, a police officer’s direct violation of someone’s rights is not actionable under the MCRA unless it was accompanied by ‘threats, intimidation or coercion,’ even if the direct violation of rights was egregious. For example, if a police officer were to be sued under the MCRA for allegedly shooting someone in violation of their civil rights, the officer could claim that the gunshot itself was not actionable, because it was a direct violation of rights, rather than a violation through ‘threats, intimidation or coercion.’” The same defense would be available for other “direct” violations of rights, including unreasonably striking, strip searching, tasing, or killing someone. 

This makes no sense. There is no reason why an officer who assaults someone should be immune from liability under our state civil rights act unless they first threaten to commit the assault.

Fortunately, a majority of the commission agreed that this problem should be fixed by amending the MCRA to remove the “threats, intimidation, or coercion” requirement for civil rights actions against law enforcement officers. We are glad that the commission clearly named this problem and charted a way forward. If adopted by the full legislature, this change would permit lawsuits brought by people seeking justice for serious civil rights cases to go forward in Massachusetts courts, just as in every other state across the country. 
 

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