In negligence claims over child welfare, bus fight, Mass. high court opines on qualified, sovereign immunity

Two immunity cases ended with different outcomes for public officials in the Massachusetts high court on two successive Fridays, and the cases illustrate different theories of immunity.

In a case decided on March 21, social workers with the Massachusetts Department of Children and Families (DCF) asserted qualified immunity in the death and severe injury of two children, each about two years old. The Supreme Judicial Court (SJC) considered the immunity analysis but decided ultimately that, immunity notwithstanding, the workers had not legally caused the harm the children suffered.

In a case decided March 14, the Massachusetts Bay Transportation Authority (MBTA) asserted sovereign immunity in the serious injury of a passenger who was beaten by a bus driver with known anger management issues. The SJC decided that the state agency was not entitled to sovereign immunity as codified by a provision protecting the state from liability for the acts of third parties.

Mass. DCF Worcester West Area Office
From Mass. DCF, purported © 2025
Commonwealth of Massachusetts, asserted fair use.

Qualified Immunity 

However much the state defendants prevailed in the first case, the court's recitation of the facts reveals a deeply disturbing record of irresponsibility on the part of DCF. A woman with four foster children was correctly suspected of having a live-in boyfriend with a record of an open armed robbery charge, three assault and battery charges, and multiple restraining orders. That would be prohibitive of foster placements were the facts confirmed, so DCF planned to monitor the home closely. For unknown reasons, officials dropped the ball, and inspections were too few and too infrequent.

The horrifying 2015 accident that took the life of one child and severely injured another occurred overnight when one of the children reached for "and adjusted the thermostat on an electric heater, which was on the wall above the crib, causing the children's room to overheat," the court wrote. Another child in the room died, and the child who manipulated the thermostat "was found to be in critical condition, suffering from respiratory failure, seizures, hyperthermia (a high temperature), and hypotension (low blood pressure)." The foster parent called 911, and the critically injured child was taken to the hospital. She survived but remains impaired, and her representatives were the plaintiffs in the instant case.

In a civil rights action under federal law, 42 U.S.C. § 1983, DCF officials claimed qualified immunity. The court coherently explained how the doctrine works generally and in this context:

Government officials are entitled to qualified immunity from § 1983 claims for damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known...." Littles v. Commissioner of Correction [Mass. 2005]. The determination of qualified immunity follows a two-part test:

"The first prong asks whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; the second prong asks whether that right was clearly established at the time of the defendant's alleged violation. [T]he second step, in turn, has two aspects. One aspect of the analysis focuses on the clarity of the law .... The other aspect focuses more concretely on the facts of the particular case and whether a reasonable defendant would have understood that his conduct violated the plaintiffs' constitutional rights" .... Penate v. Sullivan ... (1st Cir. 2023)....

Under the first prong, "'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience'" .... United States v. Salerno [U.S. 1987]. In the foster care context, courts apply one of two standards to determine whether government conduct is conscience-shocking. The first ... is the "deliberate indifference" standard.... Under this standard, a plaintiff must show that a government actor "exhibited deliberate indifference to a known injury, a known risk, or a specific duty." ....

Alternatively, under the second standard, ... a plaintiff must show that a State actor's professional decision constitutes such a "substantial departure from accepted professional judgment, practice, or standards" that the decision was not actually based on such judgment.

The court did not resolve the difference between the two standards, however, because the case was resolved on a different basis. Notwithstanding qualified immunity, a plaintiff in a civil rights case, just like in a state tort case, must prove proximate, or legal causation, and the plaintiffs here could not.

DCF misconduct might have been a scientific cause of the accident. However, the reason DCF was investigating the foster care home was the suspected presence of man, a co-caretaker, with a problematic criminal record. Scientific causation might be proved if the plaintiff could prove that proper DCF investigation would have resulted in the removal of the man from the home. But that flub did not legally cause the accident, the court opined, because the accessibility of the thermostat to the crib and the child's consequent tampering with it had nothing to do with the presence of the man in the home.

The conclusion is sound, though it leaves one to wonder whether there yet has been any reckoning at DCF, or among public officials and legislators if under-resourcing is to blame.

It would not have made any difference here, but, collaterally, it's worth noting that the very existence of qualified immunity as a defense to civil rights actions has been an issue in play in recent years. I explained in 2 Tortz: A Study of American Tort Law (Lulu 2024 rev. ed.):

Of unlikely constitutional compulsion, qualified immunity has come into question in recent years, especially amid high-profile incidents of police violence. Some states and localities have adopted statutes and ordinances limiting or eliminating qualified immunity for police. At the federal level, U.S. Supreme Court Justices Clarence Thomas and Sonia Sotomayor both have criticized qualified immunity. Justice Thomas criticized qualified immunity as unsupported by the text of the Constitution or statute, and Justice Sotomayor criticized the doctrine for failing to punish official misconduct. See N.S. v. Kansas City (U.S. 2023) (Sotomayor, J., dissenting from denial of certiorari); Hoggard v. Rhodes (U.S. 2021) (Thomas, J., respecting denial of certiorari); James v. Bartelt (U.S. 2021) (Sotomayor, J., dissenting from denial of certiorari); Baxter v. Bracey (U.S. 2020) (Thomas, J., dissenting from denial of certiorari). Nevertheless, thus far, the Court has upheld the doctrine. Since the murder of George Floyd by a police officer in Minneapolis in 2020, U.S. Rep. Ayanna Pressley (D-Mass.) and U.S. Sen. Ed Markey (D-Mass.) have persistently but unsuccessfully championed bills to abolish qualified immunity in § 1983 actions.

The first case is Gotay v. Creen (Mass. Mar. 21, 2025) (FindLaw). Justice Serge Georges, Jr. authored the unanimous opinion of six justices.

MBTA bus
Mass. Office of Travel & Tourism via Flickr CC BY-ND 2.0

Sovereign Immunity

A different theory of immunity, state sovereign immunity, animated the case decided a week earlier.

At issue in this second case was the puzzling and unique section 10(j) of the Massachusetts Tort Claims Act (MTCA), which attracts more than its fair share of MTCA appellate litigation in the commonwealth. The case arose from an assault on a passenger by an MBTA bus driver with anger management issues.

Relying on facts as favorable to the plaintiff, the court retold the story of the part-time driver who "sometimes engaged in unsafe driving and, on occasion, interacted with the public and his supervisors in a hostile or insubordinate manner," yet after three years was promoted to full time. The court recounted subsequent altercations with a passenger described as "unruly" and then with a police officer in a disagreement over road obstruction.

The instant case arose when a passenger pursued the bus, rapping on doors, trying to get information about routes. Further recounting the plaintiff's facts, the court wrote:

Lost, cold, and frustrated at the prospect of being stranded, [plaintiff] first questioned why the bus driver had not stopped sooner. The driver responded by yelling at [plaintiff] and leaving his driver's seat to confront [plaintiff] at the door. The driver kicked snow from the bottom of the bus at [plaintiff]. [Plaintiff] uttered a profanity. This further triggered the bus driver's anger; as the driver subsequently described it, he just "lost it." Enraged, the driver lunged at [plaintiff], escalating the encounter. For his part, [plaintiff] retreated, but the driver gave chase. When the driver caught up, the driver commenced punching and kicking [plaintiff]. The beating was so severe that [plaintiff] suffered a traumatic brain injury that has left him "permanently and totally disabled from his usual employment."

The plaintiff sued the MBTA for negligence in hiring, promotion, retention, and supervision. The defendant asserted sovereign immunity as codified in the MTCA.

MTCA section 10(j) is Massachusetts's effort to find the fine line between a tort claim that properly blames public officials for tortious misbehavior and a failure-to-protect claim, when public officials are not responsible for the actions of private third parties. Finding this line is a well known problem in tort claims, federal and state. The Massachusetts test has its own peculiar language, which, the abundance of case law suggests, is not necessarily clarifying. The court here quoted its own earlier assessment that the provision "presents an interpretive quagmire."

Section 10(j) holds public officials immune from "any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer."

The test is especially hairy in cases such as this one, when the alleged negligence is on the part of the state as employer, thus one step removed from the misconduct of a state employee. When does negligence on the part of the state employer constitute the "affirmative act" required to circumnavigate 10(j)?

Here, the court decided:

The claims at issue here are based on the MBTA's own failure to exercise reasonable care in its supervision of the bus driver; as we have explained, "where the supervisory officials allegedly had, or should have had, knowledge of a public employee's assaultive behavior, it is the supervisors' conduct, rather than the employee's intentional conduct, that is the true focus of the case." Dobos v. Driscoll ... [Mass. 1989] (affirming judgment against Commonwealth for negligent supervision and training of officer who assaulted civilian)[; s]ee Doe v. Blandford ... [Mass. 1988] (MTCA permitted claims regarding public employer's negligent conduct in hiring, retaining, and supervising guidance counselor who assaulted student independent of alleged vicarious liability for intentional tort of public employee)....

In sum, [section] 10 (j) does not provide immunity to a public employer for its misfeasance in placing an employee with known but untreated anger management issues that manifest in violent and hostile behaviors in a public-facing position. The record on summary judgment here would support a fact finder's reasonable conclusion that the MBTA's affirmative act—its own decision, through its public employees responsible for supervising the bus driver, to schedule the driver to operate the bus route in Lynn, [Mass.,] without training him to manage his anger—originally caused [plaintiff]'s harm.

The decision feels right as measured against the legislature's determination to distinguish truly third-party causes, that is, risks initiated outside the scope of state responsibility, from causes inextricably tied to state responsibility, such as a state employer's responsibility in direct negligence for its agent's misconduct. And I do think this concept of scope of responsibility, or common duty in the parlance of multiple liabilities, can be used to delineate a workable understanding of "not originally caused."

At the same time, I am not persuaded by the court's reasoning that 10(j) jurisprudence has yet drawn a line much more clear than "I know it when I see it."

The second case is Theisz v. MBTA (Mass. Mar. 14, 2025) (Justia). New Orleans-born Justice Dalila Argaez Wendlandt authored the unanimous opinion of four justices, affirming the Appeals Court.

Reversal in eldercare case highlights limits of qualified immunity, low injury threshold of intentional torts

Boston police officer assists an elderly pedestrian in 2014.
(Alex Klavens CC BY 2.0 via Flickr)

A dispute over elder care occasioned treatment of qualified immunity and a range of tort theories by the Massachusetts Appeals Court yesterday.

Gallagher v. South Shore Hospital arose from an apparently mismanaged effort to investigate and redress a report of elder abuse; the report proved unfounded. The plaintiff caretaker and elder man alleged that a police officer and state agent entered their home without sufficient suspicion or warrant and removed the man from the home, and that a hospital then held and tested the man for five days against her and his will.

Most of the court's opinion comprised blow-by-blow facts and the Fourth Amendment analysis. However, the court opined as well on a range of common law tort claims against the defendants: a police officer, a state-contracted elder service agent, and South Shore Hospital, Inc., for trespass, false imprisonment, and battery. The police officer defended on grounds of qualified immunity, inter alia.

In proceedings on various motions, two trial court judges awarded summary judgment to all defendants. The trial courts held the state actors protected by qualified immunity and the tort claims flawed.

In the estimation of the Appeals Court, the trial courts erred. The Appeals Court reversed and remanded as to all defendants, finding that live questions of fact precluded the summary judgments. In my estimation, the error on qualified immunity was informative, and the errors on tort theories were egregious.

In articulating the qualified immunity theory, the police defendant and eldercare agent pointed to a concurrence by Justice Kavanaugh in a 2020 U.S. Supreme Court case, Caniglia v. Strom, in which the Court held unanimously that a warrantless home entry and firearm seizure violated the Fourth Amendment. The Appeals Court explained:

[Officer] Pompeo argues that the facts at bar are similar to the example of an elder welfare check that Justice Kavanaugh described in his concurring opinion in Caniglia. In his example, "an elderly man is uncharacteristically absent from Sunday church services and repeatedly fails to answer his phone throughout the day and night. A concerned relative calls the police and asks the officers to perform a wellness check." Justice Kavanaugh stated that "[o]f course," in those circumstances, the officers may enter the home. Pompeo argues that she reasonably thought [elder plaintiff] LaPlante was injured or in imminent danger on June 25 because no one responded to the doorbell, knocks, or telephone call, and because [caretaker] Gallagher had left LaPlante in the car with strangers two days earlier.

The trial court found these facts to constitute the requisite exigency to enter the home. The Appeals Court disagreed.

The facts in this case are nothing like the hypothetical Justice Kavanaugh described. The implication of the hypothetical is that the elderly man lives alone. LaPlante did not. Moreover, Gallagher and LaPlante were not out of touch or nonresponsive, as was the elder in Justice Kavanaugh's hypothetical. Pompeo and another elder care worker had seen LaPlante two days earlier ... and his appearance was not a cause for concern....

Further, even if Pompeo could see LaPlante on the couch [through a window], neither he nor Gallagher had any obligation to answer the door or respond to the knock. "When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak." Kentucky v. King (U.S. 2011). A jury could find that Gallagher's lack of response to a knock on the door when she was not expecting visitors, and her absence from the room in which LaPlante was sleeping, did not give rise to a reasonable belief by Pompeo that LaPlante was unattended and suffering an emergency.

In an age in which the public is increasingly skeptical of police qualified immunity, the analysis is refreshing for taking seriously the doctrine's objective check on police perception. The likely failure of qualified immunity here leaves the state defendants vulnerable to the civil rights and tort claims on remand.

On the tort claims, the trial courts erred egregiously in dismissing for perceived want of injury. My first-semester, 1L Torts students can tell you that none of trespass, false imprisonment, nor battery requires physical injury, in the sense of impact. These intentional torts all balance a higher culpability state with a lower injury threshold. The lower threshold rests upon the theory that tort objectives such as preserving the peace and averting vigilantism justify recognition of insults to personal integrity or honor, even in the absence of physical or pecuniary loss. The notion is as old as the Roman law of iniuria.

As to trespass, the Appeals Court opined, quoting Massachusetts high court precedents, "It has long been the 'general rule' in this Commonwealth that 'possession of real estate is sufficient to enable the parties in possession to maintain an action against a stranger for interfering with that possession.' Proof of injury is not required; 'the action is founded merely on the possession.'"

Similarly, false imprisonment is accomplished by the plaintiff's awareness of confinement, and battery by an "offensive," that is, non-consensual nor justified-by-social-contract, touching of the plaintiff. In false imprisonment, "[i]t is enough if a person's personal liberty is restrained," the Appeals Court opined. And even if the elder man, not legally competent at the time, "was not aware of his confinement, Gallagher, his proxy, was." The court further relied on, while expressly not adopting, similar sentiments in the Second Restatement of Torts.

On each theory, the plaintiff is permitted to prove compensable loss above and beyond the minimal, prerequisite condition of injury. The caretaker alleged that the elder man in fact deteriorated physically while in hospital care, evidenced by an enlarged bedsore and diminished mobility. And the facts established to date indicate that the elder man had been subject to blood and urine testing in the hospital without the consent of the caretaker, his only proxy: a more-than-de-minimis, physical insult.

The same reasoning that unwound qualified immunity negated any defense of emergency on which the trial courts relied to dismiss the tort claims as a matter of law. And the hospital claimed no emergency over the elder man's five-day residency, such as would have justified failing to seek the caretaker's consent.

Finally, I was struck by a footnote the court dropped that speaks not only to the sad facts of this case, but to the broader context of our present, vigorous public policy discussion about the role of police in society and our infrastructure for social services, such as physical and mental healthcare. The court lamented:

[The eldercare agent who precipitated investigation and police involvement,] Bessette[,] and Gallagher were strangers to one another. Perhaps if Bessette had agreed to assist Gallagher by sitting with LaPlante for an hour while Gallagher did grocery shopping, she could have accomplished her investigatory purpose—allowing her to speak with LaPlante alone— and we might not have a case at all. Pasqualone v. Gately (Mass. 1996) (if officer had asked gun owner to voluntarily turn over his weapons after his license was revoked rather than demand them with considerable show of force, we might have a different case).

Recently, my wife and I read in the New York Times Magazine about the "viral nightmare" that exploded at Arizona State University from students' feud over the "multicultural safe space," fueled in no small part by the university's hyper-formalist response.

"If only someone had sat them down and made them listen to each other ... ," my wife sighed.

The instant case is Gallagher v. South Shore Hospital, Inc., No. 21-P-207 (Mass. App. Ct. Oct. 6, 2022) (temporary posting). Justice Vickie L. Henry wrote the opinion for a unanimous panel that also comprised Chief Justice Green and Justice Sullivan.

Family in fatal police shooting demands transparency

Fall River Police Department
Photo by Kenneth C. Zirkel (CC BY-SA 4.0)

At a rally in Fall River, Mass., on January 15, the family of Anthony Harden, who was killed by police in November, demanded transparency in the investigation into the shooting.

News reports state that Harden, 30, became involved in a physical altercation with two police officers trying to arrest him at his home.  Harden was confined to the home with a GPS bracelet while charges were pending in an assault case, WBZ reported in December.  According to police, Harden repeatedly stabbed at one of the officers with a metal object, possibly a steak knife, and the other officer shot and killed him.

Bristol County District Attorney (DA) Thomas M. Quinn III investigated and announced in December that police had complied with the department use-of-force policy, WBZ reported.  But the family has not yet seen the full record of the investigation, the Fall River Herald News reported after the "Justice for Anthony" rally on Saturday, and the family alleges inconsistencies between a private autopsy and the DA's conclusion.

In light of the police accountability movement that erupted in recent years in the United States, my Freedom of Information (FOI) Law seminar in the fall semester took up law enforcement transparency as a special topic.  Sifting the voluminous writing on police accountability in scholarly, NGO, and popular literature, I found, probably unsurprisingly, that lack of transparency is often a volatile fuel of misunderstanding and vehement distrust between people and police in these matters.  Worse, it doesn't always have to be.

At risk of generalizing to the detriment of the many, many police officers and departments that uphold the law with integrity, there remains the conventional wisdom that police are notorious for resistance to transparency.  My own youthful interest in FOI law was spurred by, and, in fact, a factor in my decision to go to law school in the 1990s was, frustration dealing with the Rockbridge County Sheriff's Office when I was a student journalist in Virginia.  

FOI "audits," occasionally carried out by media and NGOs to test state open records compliance, invariably test police, because a characteristic reluctance to comply with the law, ironically, juxtaposes so sharply with the urgent life and liberty interests of persons subject to police power.  The classic tension in this vein is nicely encapsulated by Amy Sherrill's report on police compliance for a 1999 Arkansas audit.  The piece might as well have been written yesterday; secrecy in policing is a persistent devil.

For my October class, besides some introductory material such as the law enforcement exemption in the federal FOI Act (FOIA) (subpart (b)(7)), after which the states have modeled many statutory open records exemptions, I assigned:

• State ex rel. Standifer v. City of Cleveland, 2021 Ohio 3100 (Ct. App. Sept. 3, 2021);
• Emanuel Powell, Unlawful Silence: St. Louis Families’ Fight for Records After the Killing of a Loved One by Police, 57 Am. Crim. L. Rev. 65 (2020); and
  
• Somebody: Police, The Intercept (Apr. 14, 2020) (podcast ep. 3).

There is so much to unpack on this topic that I had to be judicious.  The Standifer case, arising from an investigation into police violence in Connecticut, frames the subject with First Amendment access implications and the balance between police transparency and the rights of persons named in police records, including police officers themselves.

I can't say enough about the Powell article.  An attorney with ArchCity Defenders, Emanuel Powell related a personal and powerful narrative with a well informed and reasoned call for reform.

The entirety of The Intercept podcast, "Somebody" season, is worth the time.  For this class, I chose the "Police" episode, especially for its audio recordings of a mourning mother, Shapearl Wells, desperately seeking answers in the death of her son, and what she faces with police who are sometimes understanding but more often defensive, guarded, and harsh with her.  The audio medium demonstrates, in a way a cold transcript could not, the communicative disconnect between Wells and police, and the insult, however unintended, of unnecessary opacity upon an already tragic injury.  Somebody was a joint project of the Invisible Institute and comes with, especially useful for secondary school, a 10-unit teaching guide. 

There are some fascinating online clearinghouses on police data, such as NGO Mapping Police Violence and the Invisible Institute's Citizens Police Data Project, the latter focusing on Chicago, having begun as a collaboration with the University of Chicago.  The annual program of the National Freedom of Information Coalition (NFOIC) in fall 2021 featured informative sessions on police transparency reform and tracking police misconduct records (latter trailer only).  Tomorrow, I plan to attend virtually a plenary panel of the Communications Law Forum of the American Bar Association, "Racial Injustice Exposed on Camera: Police Transparency and Government Access in a Viral World."

I am open to persuasion on the basis of what I might not know about the investigation into Harden's death.  But on the face of it, I see no reason at this point for withholding investigative records, especially the autopsy.  Law enforcement authorities sometimes fear record release because it might compromise the public's position in seemingly inevitable litigation.  But discovery will bring the evidence to light anyway, and public entities shouldn't get to hold their cards tightly when accountability for lost life is at stake.

It's especially troubling that on the Bristol County DA website, there is, at the time of this writing, not a single mention of Anthony Harden.   The last two press releases from the office, before and after announcement of the conclusion in the Harden investigation, regard sentencing in other matters, touting the DA's success.  The 11-page report on the Harden matter, described by The Herald News, I cannot find online, not at the DA's site, nor from the State Police Detective Unit that conducted the investigation.

So one might understand how the Harden family, and families similarly situation around the country, might worry that the political heads of law enforcement are concerned more with reelection than with justice.  Transparency would not necessarily solve all ills, but it might diffuse tension and enhance public confidence by some measure.

Abolition of police qualified immunity in Colorado, accountable development lead in FOI Summit topics

Transparency and accountability in contexts including police reform and economic development were on the agenda at the (virtual) annual summit (#FOIsummit) of the National Freedom of Information Coalition (NFOIC) late last week.  The conference continues on Tuesday and Wednesday this week.

Rep. Herod

The most provocative panel was on police reform, focusing on California, Colorado, and New York.  Colorado State Rep. Leslie Herod spoke with conviction about the raft of reforms signed into law in Colorado on Juneteenth 2020.  Included was the state's landmark elimination of qualified immunity for police.  Herod explained that the 2020 protest movement sparked an opportunity in bipartisan alignment.  The libertarian Cato Institute, she said, would like to have seen qualified immunity for public officials abolished across the board.  Police were a start.  Read more about the Colorado law from Jay Schweikert at Cato and from Russell Berman in The Atlantic.  The session is available on YouTube.

 

The conference's first general session focused on economic development and offered up another compelling colloquy.  Nothing was settled, but advocates on both sides of the transparency problem pressed their best arguments and pulled no punches.  

Greg LeRoy, executive director of D.C.-based NGO Good Jobs First, emphasized the public money at stake in economic development projects and lamented localities' complicity in the empowerment of unaccountable corporate powers over public services.  He had data from one representative development project showing public investment that could not possibly generate a justifiable return.  Such a transaction is none other than a transfer of public wealth to corporate shareholders, he said.  Good Jobs First has model legislation.  

Bryant (RLB)

Meanwhile Ronnie L. Bryant, principal of consulting firm Ronnie L. Bryant, LLC, pleaded passionately that troubled urban centers throughout America, and the people living in them, don't stand a chance at economic opportunity without offering incentives to private investors.  As moderator Dalia Thornton wrangled the pair to common ground, Bryant proved willing to guarantee transparency before and after negotiation on a deal, but not during.

Caught in the crossfire, Albuquerque, N.M., chief administrative officer Sarita Nair has worked previously on both sides of the divide, and now, she said, is the policymaker having to balance priorities.  I agreed with her sentiment recognizing that, at least, we've come a long way from the bad ol' days of heck-no, everything's-a-trade-secret FOIA exemption.

Other conference topics include access to protected health information during the pandemic and virtual public meetings.  Look for more video replays on the NFOIC YouTube channel.

Public officials must know religious freedom gets strict scrutiny, so lose qualified immunity in civil rights case over church access

In a civil rights case involving the freedom of religion, the Massachusetts Appeals Court today denied qualified immunity to public officials who prevented the employee-plaintiff from going to church for Christmas, even without a plain prior case on similar facts.  The decision has important implications across the field of qualified immunity and "constitutional tort," because civil rights plaintiffs routinely claim violations of fundamental rights that officials should know trigger strict scrutiny in constitutional law.

St. Michael's Chapel at Chelsea Soldiers' Home
By Randall Armor, Boston's Hidden Sacred Spaces (CC BY-NC-ND 4.0)

Teresa Krupien was working at the Soldiers' Home in Chelsea, a veterans' healthcare facility.  Another employee reported that Krupien injured the other's wrist when the two were moving a patient into a wheelchair.  After investigation, and upon mixed conclusions among officials, Krupien was issued a "stay-away directive," barring her from the home premises.  Krupien promptly informed officials that the directive would prevent her from attending Christmas services at the chapel, her "spiritual home," and alleged in her civil rights complaint that the directive in sum barred her from church services for 37 days.  Officials for that time refused to modify the directive.

The trial court dismissed claims under the Massachusetts civil rights act on grounds of qualified immunity, and the Appeals Court reversed.  Qualified immunity pertains when (1) a plaintiff complains of a public official's violation of statutory or constitutional rights, (2) the plaintiff's right was clearly established at the time of the alleged violation, and (3) a reasonable person in the shoes of the defendant would have understood that plaintiff's rights were clearly violated.  Qualified immunity is an important defense in the law of "constitutional tort," because torts with public-official defendants usually must rise to the level of civil rights violations in order to overcome sovereign immunity, which is absolute unless waived.

The argument in qualified immunity usually centers on the second element, with an assist from the third, the two forming something like a "reasonable belief" test.  Public officials, who bear the burden of proof of immunity, invariably argue that they were clueless about any clear violation because never before have the courts had a case quite like this one.  Plaintiffs invariably respond by saying that of course this has never happened before, but come on, a lot of cases just like this have happened.  Where element two is hard on plaintiffs with its clarity requirement, element three gives plaintiffs an assist by testing officials' denial objectively.  Many a commentator has noted that the odd yet defensible effect of this rule is to give public officials a pass on a kind of civil rights offense once--but only once.

True to form, defendants here argued that no precedent provided clear guidance to officials on how to handle Krupien's desire to go to church.  Nevertheless, the court opined, ample precedents demonstrate that struct scrutiny applies to claims of free religious exercise.  And strict scrutiny, a public official should know, tests for narrow tailoring to achieve a legitimate state interest.  Officials here had no evidence that Krupien's attendance at church would jeopardize anyone's safety.  It would have been a simple matter to narrow the order and let her attend worship services.

Judge Posner at Harvard Law
By chensiyuan (CC BY-SA-2.5)

The appeals court pointed to an oft-cited lamentation of renowned jurist, sometimes-"consummate ass," advocate-for-the-downtrodden-whilst-né-Circuit-Judge Richard Posner, in which he pointed out that the lack of case law spelling out the impermissibility of selling a child into slavery cannot mean that a defendant gets one free pass to do so.  Wrote Judge Posner in full:

Our job is the humbler one [than Congress's, in extending or abolishing immunity] of applying the immunity doctrine. We begin with the elementary proposition that it would be improper to deny immunity to a particular defendant on the ground that his conduct could be subsumed under some principle of liability in force when he acted. That approach would shrink immunity to trivial dimensions, since it is always possible to find a principle of comprehensive generality (such as "due process of law"). But the immunity doctrine as it has evolved goes much further than this to protect public officers. It is not enough, to justify denying immunity, that liability in a particular constellation of facts could have been, or even that it was, predicted from existing rules and decisions, even though law, as Holmes famously remarked, is a prediction of what courts will do faced with a particular set of facts. (Maybe it is more than that, but it is at least that.) Liability in that particular set must have been established at the time the defendant acted.

It begins to seem as if to survive a motion to dismiss a suit on grounds of immunity the plaintiff must be able to point to a previous case that differs only trivially from his case. But this cannot be right. The easiest cases don't even arise. There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances.

Judge Henry
(Ballotpedia)

Murphy ex rel. K.H. v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (paragraph break added).  The Massachusetts Appeals Court here sought to fine-tune that balance between the general principle, religious freedom, and the specific distinction between one strict-scrutiny case and the next.

The case is Krupien v. Ritcey, No. AC 17-P-870 (Sept. 26, 2018).  The opinion was authored by Associate Justice Vickie L. Henry.  A graduate of Wellesley College and Boston University Law, Judge Henry left a lucrative commercial litigation practice with Foley Hogg in 2011 to serve as senior staff attorney and youth initiative director for Gay & Lesbian Advocates & Defenders (GLAD).  In that capacity, she appeared in the consolidated cases that became Obergefell v. Hodges (U.S. 2015), establishing the federal constitutional right of gay marriage.  Judge Henry was appointed to the bench by Governor Baker in 2015.