An Act relative to Justice, Equity and Accountability in Law Enforcement in the Commonwealth

Update (2/1/2021): Final Police Reform bill summary signed into Law:

An Act relative to Justice, Equity and Accountability in Law Enforcement in the Commonwealth makes significant reforms to policing in Massachusetts by establishing, for the first time, an independent commission for the state-wide certification of all law enforcement officers. The legislation also provides for a continuing assessment of the role of race in our state institutions.

MASSACHUSETTS PEACE OFFICER STANDARDS AND TRAINING COMMISSION (MPOSTC)

 An independent commission consisting primarily of civilians with the responsibility of certifying and disciplining all law enforcement officers in the Commonwealth.

Commission Membership

• 3 appointed by Governor (1 shall be a police chief, 1 shall be a retired justice of the superior court, and 1 shall be a social worker appointed from a list of 5 nominations submitted by the National Association of Social Workers, Massachusetts Chapter)
• 3 appointed by AG (1 shall be a law enforcement officer below the rank of sergeant who is a labor union representative appointed from a list of 3 nominations submitted by the Chair of the Massachusetts Law Enforcement Policy Group, 1 shall be a law enforcement officer appointed from a list of 5 nominations submitted by the Massachusetts Association of Minority Law Enforcement Officers, and 1 shall be an attorney appointed from a list of 5 nominations submitted by the Civil Rights and Social Justice Section Council of the Massachusetts Bar Association)
• 3 appointed jointly by Governor and AG (1 shall be appointed from a list of 5 nominations submitted by the Massachusetts Commission Against Discrimination)

Commission shall appoint an executive director

Commission duties: Serve as the civil enforcement agency to certify, restrict, revoke, or suspend certification for officers and agencies. Refer cases for criminal prosecution and report annually to the Legislature, Governor, and the Attorney General. Maintain a publicly available database of decertified officers, officer certification suspensions, and officer retraining. Cooperate with the national decertification index. Promulgate rules and regulations jointly with the MPTC for the administration and enforcement of use of force standards, officer intervention, and minimum agency certification standards. Conduct preliminary inquiries, revocation and suspension proceedings and hearings, and promulgate regulations for such proceedings and hearings pursuant to G.L. c. 30A.

Within the Commission, there are 2 divisions: Division of Police Certification, which is charged with developing certification standards for law enforcement officers jointly with the MPTC, and the Division of Police Standards, which is the investigatory division.

Division of Police Certification

• The division shall, jointly with the MPTC, establish uniform policies and standards for the certification of all law enforcement officers.

Division of Police Standards

• The division is made up of administrative staff. The division shall investigate officer misconduct, make disciplinary recommendations to the commission, and maintain a database of officer complaints.

Hearings and Appeals

• The MPOSTC shall notify an officer, the head of their collective bargaining unit, and the head of the agency employing the officer who is the subject of a preliminary inquiry within 30 days of commencement of the inquiry. The commission shall conduct revocation or suspension proceedings and hearings, and promulgate regulations for such proceedings and hearings, pursuant to chapter 30A.

• A law enforcement agency shall complete an internal affairs investigation into the officer misconduct and issue a final disposition within 1 year of receiving a complaint or notice from the commission of the complaint being filed. The commission may, upon a showing of good cause, extend the time to complete the investigation. The MPOSTC shall not institute a revocation or suspension hearing until the officer’s appointing agency has issued a final disposition, provided, however the delay shall not exceed 1 year. An officer may notify the commission that the officer wishes to suspend such hearing pending an appeal or arbitration of the appointing agency’s decision, provided, however the delay shall not exceed 1 year. The commission may further suspend the hearing upon showing of good cause. An officer may notify the commission that the officer wishes to suspend a hearing pending the resolution of criminal charges, provided, however the officer’s certification shall be suspended during the pendency of the delay.

• The MPOSTC shall immediately notify an officer and the head of the agency employing the officer who is decertified, suspended or ordered to undergo retraining. The commission may only revoke or suspend an officer certification by clear and convincing evidence.

• Nothing prohibits an agency or the Civil Service Commission from conducting internal employment investigations separately from the commission, however decisions made by the MPOSTC shall only be appealable pursuant to chapter 30A.

MUNICIPAL POLICE TRAINING COMMITTEE (MPTC)

A committee consisting of law enforcement officers, within the Executive Office of Public Safety (EOPSS), with the responsibility of training officers and certifying training academies and schools.

• The MPTC shall set policies and standards for training of certain law enforcement officers. The MPTC shall set policies and standards for the screening of all applicants for admission to committee-certified academies.  

USE OF FORCE AND DUTY TO INTERVENE

The MPOSTC, jointly with the MPTC, shall promulgate regulations for use of force standards.

Physical Force

• An officer may only use physical force if de-escalation tactics have been attempted and failed, or are not feasible based on the totality of the circumstances, and such force is necessary to: (i) effect the lawful arrest or detention of a person; (ii) prevent the escape from custody of a person; or (iii) prevent imminent harm, and the amount of force used is proportionate to the threat of imminent harm. An officer may also use necessary, proportionate, and non-deadly physical force in accordance with the regulations promulgated jointly by the MPOSTC and the MPTC.

Deadly Force

• An officer may only use deadly force if de-escalation tactics have been attempted and failed, or are not feasible based on the totality of the circumstances, such force is necessary to prevent imminent harm to a person, and the amount of force used is proportionate to the threat of imminent harm.

Ban on Chokeholds

• A law enforcement officer shall not use a chokehold.

Discharge a firearm into a fleeing motor vehicle

• A law enforcement officer shall not discharge any firearm into or at a fleeing motor vehicle unless, based on the totality of the circumstances, such discharge is necessary to prevent imminent harm to a person and the discharge is proportionate to the threat of imminent harm to a person.

Tear gas/Rubber pellets/Dogs

• A law enforcement officer shall not discharge or order the discharge of tear gas or any other chemical weapon, discharge or order the discharge of rubber pellets or release or order the release of a dog to control or influence a person’s behavior unless: (i) de-escalation tactics have been attempted and failed or are not feasible based on the totality of the circumstances; and (ii) the measures used are necessary to prevent imminent harm and the foreseeable harm inflicted by the tear gas or other chemical weapon, rubber pellets, or dog is proportionate to the threat of imminent harm.

• If an officer uses any of these techniques in a crowd, the law enforcement officer’s appointing agency must file a report with the commission. The commission shall review the report, make any additional investigation, and if applicable, make a finding if the de-escalation efforts were adequate and if the use of the technique was justified.

Duty to Intervene

• Requires that an officer intervene if he or she sees another officer using physical force beyond that which is necessary or objectively reasonable based on the totality of the circumstances, unless intervening will result in imminent harm to the officer or another identifiable person.

• Requires an officer who observes unnecessary force to report it to an appropriate supervisor and prepare a detailed written statement. The officer’s statement shall be included in the supervisor’s report.
  
  
• Requires police departments to develop and implement a policy and procedure for officers to report abuse by another officer without fear of retaliation or actual retaliation.

Mass Demonstrations and Protests

• Requires a police department with advance knowledge of a planned mass demonstration or protest to attempt in good faith to communicate with the organizers of the event. The department shall make plans to avoid and de-escalate potential conflict and designate an officer in charge of these plans.

REVIEW OF THE CIVIL SERVICE SYSTEM

Establishes a special legislative commission to study and examine the civil service law, personnel administration rules, hiring procedures and bylaws for municipalities not subject to the civil service law, and state police hiring practices. The commission shall:

• Study the employment, promotion, performance evaluation, and disciplinary procedures for civil service employees.

• Study the employment, promotion, performance evaluation, and disciplinary procedures of municipalities not subject to the provisions of the civil service law.

• Study employment, promotion, performance evaluation, and disciplinary procedures of MA state police.

• Evaluate the feasibility of having a statewide diversity office and diversity officers in each municipality.

• Make recommendations for changes to improve diversity, transparency, and representation of the community in recruitment, hiring, and training for civil service employees, municipalities not subject to the civil service law, and the Massachusetts state police.

INVESTIGATION OF STRUCTURAL RACISM

Creates 3 special legislative commissions to study the presence of institutional racism in the criminal justice system.

• Special Commission on Structural Racism in Correctional Facilities

• Review the policies and procedures in place at state and county correctional facilities, both as written and as implemented, to determine if there are disparities in the treatment of persons of color and if structural racism at these facilities is a cause of those disparities.

• Make recommendations to eliminate any disparities in the treatment of persons of color including policy or legislative changes.

• Special Commission on Structural Racism in Parole Process

• Review the parole process to determine if there are disparities in the treatment of persons of color in the granting or denying of parole and if structural racism is a cause of those disparities.

• Make recommendations to eliminate any disparities in the treatment of persons of color found in the parole process including policy or legislative changes.

• Special Commission on Structural Racism in Probation Services

• Review the probation process to determine if there are disparities in the treatment of persons of color in the probation system and if structural racism is a cause of those disparities.

• Make recommendations to eliminate any disparities in the treatment of persons of color found in probation services including policy or legislative changes.

QUALIFIED IMMUNITY

• This legislation only makes changes to the application of qualified immunity to decertified law enforcement officers.

• Qualified immunity shall not extend to a law enforcement officer who, while acting under color of law, violates a person’s right to bias-free professional policing if that conduct results in the officer’s decertification by MPOSTC.

• Establishes a commission to investigate and study the impact to the administration of justice of the qualified immunity doctrine in the commonwealth.

FACIAL RECOGNITION

• Establishes regulations on the use of facial recognition by law enforcement.

• A law enforcement agency performing or requesting a facial recognition search using facial recognition technology shall only do so through written request to the RMV, the department of state police, or the FBI. A law enforcement agency may only perform such a facial recognition search to execute a court order, based on specific and articulable facts that provide reasonable grounds to believe that the information would be relevant and material to an ongoing criminal investigation or to mitigate substantial risk of harm to any individual or group of people; or, without an order, in the case of identifying a deceased person or if the law enforcement agency reasonably believes that an emergency involving substantial risk of harm to any individual or group of people requires the performance of a facial recognition search without delay. Any emergency request shall be narrowly tailored to address the emergency and shall document the factual basis for believing that an emergency requires the performance of a facial recognition search without delay. This shall not apply to the department of state police when performing investigatory functions related to the issuance of identification documents by the registrar of motor vehicles.

• Law enforcement agencies will be required to document each facial recognition search performed and shall provide such documentation quarterly to the EOPSS. EOPSS shall publish on its website documentation received from law enforcement agencies and shall publish data from the previous year, including the total number of facial recognition requests made to the state police and FBI, disaggregated by law enforcement agency, and the total number of facial recognition searches performed by the state police and FBI, disaggregated by law enforcement agency. The data shall specify the number of requests made or searches performed pursuant to a court order and the number of emergency requests made or searches performed and the reason for the requested search.    

• Establishes a special legislative commissionto study the government use of facial recognition technology in the Commonwealth.  

MASSACHUSETTS STATE POLICE REFORM

• Requires state police officers to be certified by the MPOSTC.

• Allows the colonel of the state police to be appointed from outside of the state police.

• Authorizes the colonel of the state police to establish a cadet program and gives the colonel the authority to discipline officers.

SCHOOL RESOURCE OFFICERS AND LIMITS ON STUDENT RECORD SHARING BY SCHOOLS

• Directs the MPTC to develop an in-service training program for school resource officers and gives the MPOSTC the power to issue a specialized certification for school resource officers.

• Requires a superintendent to make a request to the chief of police for the appointment of a school resource officer.

• Establishes a Model School Resource Officer Memorandum of Understanding (MOU) Review Commission to develop and review the model school resource officer memorandum of understanding. The model MOU shall be developed for schools and police departments as the minimum requirement for schools to formalize and clarify implementation of the partnership between the school and the school resource officer.

• The final MOU between the superintendent and chief of police shall be filed with DESE and made public.

• Requires the superintendent to report to the school committee and DESE.

• Requires DESE to collect data on the number of mental and social support personnel and the number of school resource officers in each local education agency and report said data to the public on its website.

• Prohibits school department personnel and school resource officers from disclosing certain student record information to law enforcement. This does not prohibit the sharing of information for the purposes of completing a report pursuant to section 51A of chapter 119, the sharing of information upon the specific, informed written consent of the eligible student, parent or guardian, to comply with a court order or lawfully issued subpoena, in connection with a health or safety emergency pursuant to the provisions of 603 C.M.R. 23.07(4)(e) or filing a weapon report with the local chief of police.

BAN ON RACIAL PROFILING

• Prohibits a law enforcement agency from engaging in racial profiling. Authorizes the attorney general to bring a civil action to enforce this ban. 

DEPARTMENT OF PUBLIC HEALTH

• DPH shall collect and report data on law enforcement-related injuries and deaths.

PUBLIC RECORDS

• Makes records relating to law enforcement misconduct investigations subject to the public records law.

EXPUNGEMENT

• Allows for multiple charges stemming from the same incident to be treated as one offense for the purposes of expungement and allows for a second criminal or juvenile record to be expunged where the current law only allows for one. Existing restrictions on ineligible offenses, wait times to expunge and that the offenses must have been committed before the age of 21 remain in effect.

CRIME OF SUBMITTING A FALSE TIMESHEET

• A law enforcement officer who knowingly submits a fraudulent timesheet shall be punished by a fine of 3 times the amount of the fraudulent wages paid or by imprisonment for not more than 2 years.

PROHIBITS SEXUAL INTERCOURSE WITH A PERSON IN CUSTODY

• A law enforcement officer who has sexual intercourse with a person in custody or control of the law enforcement officer shall be found in violation of the rape statute. A law enforcement officer who commits indecent assault and battery on a person in custody shall be found in violation of the indecent assault and battery statute.

NO-KNOCK WARRANTS

• Requires that a no-knock warrant be issued by a judge and only if the affidavit supporting the request establishes probable cause that if the officer announces their presence their life or the lives of others will be endangered and if the affidavit includes an attestation that the law enforcement officer filing the affidavit has no reason to believe that minor children or adults over the age of 65 are in the home unless there is a credible risk of imminent harm to the minor or adult over the age of 65 in the home.

• An officer executing a search warrant shall knock and announce their presence unless they have a no-knock warrant or if there is a credible risk of imminent harm. 

SPECIAL COMMISSIONS

• The executive office of public safety and security, in collaboration with the executive office of technology services and security, shall establish the law enforcement body camera taskforce. The taskforce shall propose regulations establishing a uniform code for the procurement and use of body-worn cameras by law enforcement officers to provide consistency throughout the commonwealth. The taskforce shall propose minimum requirements for the storage and transfer of audio and video recordings collected by body-worn cameras.

• The community policing and behavioral health advisory council shall study and make recommendations for creating a crisis response and continuity of care system that delivers alternative emergency services and programs across the commonwealth that reflect specific regional, racial, ethnic and sexual orientation needs and differences. The center for responsive training in crisis intervention shall consider the council’s recommendations for incorporation into regional training opportunities and training curricula.

• Establishes the following commissions:
  • Permanent commission on the status of African Americans
  • Permanent commission on the status of Latinos and Latinas
  • Permanent commission on the status of people with disabilities
  • Permanent commission on the status of Black men and boys
  • Commission to study the feasibility of establishing a statewide law enforcement officer cadet program
  • Commission on corrections officer training and certification
  • Commission to investigate and study the benefits and costs of consolidating existing municipal police training committee training academies
  • Commission on emergency hospitalizations