Following a lengthy, 3-day debate on police reform — and many close, hard fought votes — the House passed legislation that will restructure policing in Massachusetts in a fundamental way, An Act relative to Justice, Equity and Accountability in Law Enforcement. Hearing the calls of so many throughout the Commonwealth, including many of you, we have acted decisively. I was proud to work with and support my colleagues in the Massachusetts House Black and Latino Caucus (MBLC) who led on this issue.
Earlier in June, the MBLC announced a Ten-Point Plan to Address Police Violence and Advance Racial Justice. Four points in that plan called for the enactment of state level polices, while others focused on local or federal policy. The four key areas prioritized by the MBLC for state action are as follows: 1) a Police Standards and Training Commission; 2) Use of Force and Duty to Intervene; 3) a Review of the Civil Service System; and 4) Investigations on Structural Racism. Because the plan came out in late June, with the initial deadline for the end of the legislative session looming over on us on July 31st, the MBLC wanted to keep the bills passed by the House and Senate as close to their plan as possible. This decision by the MBLC was strategic, designed to allow a bill to get to the Governor’s desk – a bill that the Governor would be willing to sign. There were concerns that if the bill covered too many topics beyond the four core objectives, then a compromise would not be reached. Below is a summary of the bill that the House passed, which contains a whole series of significant changes to how police do their work.
Police Standards and Training Commission (MPSTC)
In accordance with one of the key priorities of the MBLC plan, the bill creates an independent commission consisting entirely of civilians with the responsibility for training, certifying, and disciplining all law enforcement officers in the Commonwealth. Significantly, none of those civilians can haven a law enforcement background. Total independence is the goal. This commission will serve as the civil enforcement agency to certify, restrict, revoke, or suspend certification for officers, agencies and academies. The ability of a completely independent civilian commission to certify and decertify police officers is a huge change to current law, and in fact quite controversial.
There will also be a publicly available database of decertified officers, officer certification suspensions, and officer retraining. Law enforcement agencies will cooperate with the national decertification index to promulgate rules and regulations for the administration and enforcement of use of force standards and officer intervention. An amendment filed on this section of the bill also calls for inclusive police training for new recruits regarding how to interact with autistic individuals and individuals with other intellectual or developmental disabilities.
Use of Force and Duty to Intervene
Fulfilling another key priority of the Black and Latino Caucus, the bill establishes strict limits on, and new rules for reporting the use of physical force and deadly force including rules applicable to firing into a fleeing vehicle, use of less-than-lethal weapons including tear gas, rubber pellets, and canines. Chokeholds are banned. The legislation also requires an officer to intervene when witnessing a misuse of force. Debate on these issues grew contentious. There was an amendment to ban tear gas in all circumstances, instead of just imposing limits, for which I was happy to vote, however, the amendment did not pass.
This section of the bill puts extremely strict limits on no-knock warrants. The bill requires that a no-knock warrant be issued by a judge only if the affidavit supporting the request establishes probable cause that if the officers announces their presence their life or the lives of others will be endangered. My colleague Liz Miranda filed an amendment which states that prior to receiving a no-knock warrant an affidavit must establish probable cause and include an attestation that there is no reason to believe that minor children or adults over the age 65 are in the home. This amendment was controversial and just barely passed by the razor thin margin of 83-76.
Review of the Civil Service System
The third priority of the Black and Latino Caucus is a review of the overall civil service system. This portion of the bill will establish 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 the state police hiring practices. The civil service system has come under criticism for any number of reasons. One key reason is that it prioritizes veterans above residents of the local community. Some fear that this prioritization may lead to a police force that is not connected appropriately with the community that they serve. For example, police departments in far western Massachusetts often find themselves hiring new officers from as far away as Worcester, rather than someone who grew up in the town, in order to comply with the civil service rules.
Investigations on Structural Racism
The final of the four priorities put out by the Black and Latino Caucus focuses on structural racism. The bill the House passed creates three commissions focused on structural racism. These include a Special Commission on Structural Racism in Correctional Facilities, Special Commission on Structural Racism in Parole Process and, a Special Commission on Structural Racism in Probation Services. The bill also includes a permanent commission on the Status of African Americans, a permanent commission on the Status of Latinos, permanent commission on the Status of Persons with Disabilities, and a permanent commission to Study the Social Status of Black Men and Boys.
Facial Recognition Software
I am pleased that, as part of the police reform legislation, the House passed a bill I filed last year banning the unregulated use of facial recognition software by law enforcement. Working in conjunction with the ACLU, I filed the bill after learning of its use in ways that are both discriminatory and encroach on our civil liberties. At present, we know the Massachusetts State Police were searching the Registry of Motor Vehicles (RMV) database without a warrant. Public records requests indicate that this practice has been fairly widespread. We also know that facial recognition technology is inaccurate, most particularly when it comes to people of color, particularly Black women, who are 35% more likely to be misidentified than white men. It is vitally important that limitations are put in place by the recent police reform legislation. This legislation forbids a public agency or employee from acquiring, accessing, or using any software that performs facial recognition except the RMV. And even in the very limited circumstances at the RMV where a facial recognition search might be permitted, law enforcement will only be able to perform a facial recognition search if they submit a request in writing to execute a warrant, or without a warrant if the law enforcement agency reasonably believes that an emergency exists involving immediate danger of death or serious physical injury to any individual or group of people. In addition, the RMV will be required to document each use of facial recognition at the request of law enforcement and the document will be public record. The record will be filed on a searchable website with the total number of searches performed by law enforcement, the number of searches conducted by a warrant, the number of emergency searches and the number of searches requested by each law enforcement agency annually. The bill also establishes a special legislative commission to study the use of facial recognition technology by the Massachusetts Department of Transportation so that we can revisit whether the usage of the software by the police and RMV is necessary.
Qualified Immunity
One of the most controversial part of the bill involved the issue of qualified immunity. I received many phone calls and emails from many of you both for, and against, qualified immunity. It is important to note that this issue was not part of the MBLC priorities. And during a public hearing at the State House on a qualified immunity bill last year, it was sparsely attended. The original House bill stated that qualified immunity will not apply to police officers who have been decertified under the new certification process created by this bill.
I supported strengthening the language in the bill, led a debate, and there was a roll call on an amendment to strengthen the bill. However, the amendment to expand the qualified immunity section was ultimately defeated by a significant margin. Another amendment that did pass will create a special commission to study qualified immunity. Qualified immunity is a complex area of the law involving constitutional, statutory and its interplay with insurance/contract law. A bill filed on this topic earlier in the legislative session drew little attention at its public hearing, and broad public interest in this issue is new. Now, there will be strong continued interest in the issue and, working with like-minded colleagues, we made a successful push to highlight its importance.
School Resource Officers and Limits on Student Record Sharing by Schools
This section of the bill establishes a Model School Resource Officer Memorandum of Understanding (MOU) Review Commission to develop and review the model school resource polices. The final MOU between the superintendent and chief of police will be filed with DESE and made public. They will develop an in-service training program for school resource officers. The bill prohibits school department personnel from disclosing in most cases student record information to law enforcement to put in a database or system designed to track gang affiliation or involvement, including: immigration status; citizenship; neighborhood of residence; religion; national origin; ethnicity; suspected gang affiliation. The bill also requires school resource officers to receive comprehensive hate crime training.
Prohibition of Sexual Intercourse with a Person in Custody
This section of the House bill was based on a bill about which many of you have written to me. Under the bill, if a law enforcement officer has sexual intercourse with a person in custody or under control of the law enforcement officer, it will be considered rape. An amendment was passed clarifying that individuals cannot consent to sexual relations when they are in the custody or control of law enforcement. It also expands the language to include indecent assault and battery, and ensures consistent penalties are maintained in the prosecution of sexual assaults on certain vulnerable populations (children, the elderly, and people with disabilities).
Other Key Aspects of the Bill:
- Establishes the Division of Police Standards and Professional Conduct Enforcement
- Requires trainings done by the State Police (as well as municipal police) to be approved by the MPSTC and requires state police officers to be certified by the MPSTC.
- Allows the colonel of the state police to be appointed from outside the state police
- DPH will collect and report data on law enforcement-related injuries and deaths
- Makes records relating to law enforcement misconduct investigations subject to the public records law
- A law enforcement officer who knowingly submits a fraudulent time sheet will be subject to a possible fine and jail time
- Establishes the law enforcement body camera taskforce. The taskforce will 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 will propose minimum requirements for the storage and transfer of audio and video recordings collected by body-worn cameras.
The bill now moves to conference committee so that differences between the House and Senate versions can be worked out before we send the bill to the Governor’s desk. The vote on the passage of this bill in the House was the closest vote I ever have seen, with a final total of 93-66 and over 30 Democrats voting “No”. So, while passing the bill is a major victory, it is important to note how divisive and controversial this bill was in what we often think of as our liberal state. The political reality is that many Democrats hail from parts of the state with different politics than our communities. A critical element of this process, and one no one seems to be discussing in the media is this: what will the Governor do? Governors in Massachusetts can send the bill back with an amendment; he can also veto the legislation. We definitely do not have a veto-proof majority. Ultimately, I am proud of the comprehensive bill we passed in the face of strong opposition and am grateful for the leadership of the House Black and Latino Caucus on this issue. It involved incredibly intensive activity and I am hopeful that in the end groundbreaking new reforms will become law.
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