Today the Mass. House approved a policing reform bill (H. 4860) after three full days of spirited debate, 217 amendments and 800+ pieces of public testimony –– all of which reflect the significance of the issue at hand. I’d like to share an overview of the bill and also my own thoughts about why I supported it. Apologies in advance for the length, but there’s a lot to get to. However you feel about this issue I hope you can take a moment to read through to the end.
Forty-six states in America certify their police officers. Massachusetts is one of the four that does not. I think certification is important for all professionals. Indeed, Attorneys are licensed and have the BBO lookup system which provides information on attorneys and any disciplinary records. Doctors are licensed and utilize a Physician Profiles website which lists Board discipline, criminal convictions, hospital discipline and medical malpractice payments reported to the Board of Registration in Medicine. Even hairdressers are licensed by the Commonwealth. This certification and licensing process will make our system stronger and bias free. And it will make it a better atmosphere for those who serve proudly and honorably.
QUALIFIED IMMUNITY – REALITY V. RHETORIC. At the outset let me just briefly address the issue of Qualified Immunity since that has gotten a lot of attention. The House bill does NOT make changes in the application of Qualified Immunity, except in one narrow situation: If, following an evidentiary process and appeal, a law enforcement officer is formally decertified for misconduct then that individual would not be shielded from liability. Nothing in the bill would apply to any other public employee, nor to any law enforcement officer in any other scenario. The legal doctrine of Qualified Immunity is a complex one and legal scholars do not all agree on its application, which is part of the reason why the House bill took a narrower approach here. There is a lot of misinformation being circulated on this topic. Case in point: a law enforcement officer recently posted on social media that without the immunity, an officer who cracks a rib doing CPR can be sued. That is just plain false and this type of rhetoric is reckless.
Here are some of the other major elements that are in the bill:
INDEPENDENT COMMISSION. Creates a seven-member independent Police Standards and Training Commission (MPSTC) appointed by the governor and the attorney general. This Commission will oversee police certification, discipline and training standards and will have the authority to conduct preliminary inquiries, revocation and suspension proceedings and hearings. This Commission will include law enforcement representation, but will be primarily civilian led. The Commission will maintain a database of decertified personnel. This type of law officer certification system is sometimes referred to as POST, though the actual acronym here is different.
DIVISION OF TRAINING & CERTIFICATION. Within the Commission will be a Division of Training and Certification which will establish uniform policies for the training and certification for law enforcement. The membership will include representation from the Mass. Chiefs of Police Association, Massachusetts Police Association, Massachusetts Police Training Officers Association, two Sheriffs, the Secretary of Public Safety and State Police.
FACIAL RECOGNITION. The bill limits the use of Facial Recognition technology and sets legal standards for its use.
CHEMICAL SPRAYS. Strictly limits any use of chemical sprays, including tear gas, to cases where all other de-escalation tactics have been unsuccessful and such measures are necessary to prevent imminent harm. Also requires documentation and report to appointing authority in such cases. Please note that an amendment (which was defeated) would have banned all chemical sprays in all circumstances, including pepper spray.
DUTY TO INTERVENE. Set standards for officer to intervene if they witness another officer using excessive force.
N0-KNOCK WARRANTS. The bill puts new limits on use of “No-Knock” warrants. Must be issued by a judge upon supporting affidavit that such action is necessary to prevent endangering life of officer or others and reasonable belief that there is no child in the home.
CHOKEHOLDS. States that a law enforcement officer shall not use a chokehold, defined as a lateral vascular neck restraint to limit breathing or blood flow with the result of bodily injury, unconsciousness or death. Gives the new police training and certification committee authority to promulgate rules for the administration and enforcement of this.
SPECIAL COMMISSIONS. Creates several legislative commissions to further study issues of inequality and racism in Correctional Facilities, Parole Process and Probation Services.
CIVIL SERVICE REVIEW. Sets up review of existing civil service system. Commission will 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.
SCHOOL RESOURCE OFFICERS. The bill tasks the training division with development of an in-service program for school resource officers and issue a specialized certification. It also calls for establishment of a model school resource officer memorandum of understanding.
AUTISM/IDD TRAINING. Includes developing a curriculum for basic and in-service training for officers on dealing with individuals with autism and other intellectual or developmental disabilities. This was added via an amendment filed by Rep. Paul Tucker (retired police chief) which I was pleased to co-sponsor. Another amendment of my own which was adopted creates a permanent commission on the status of persons with disabilities to look at these issues in a broader and holistic way.
DUE PROCESS ADDITIONS. When the legislation was first released there were some aspects of the bill which I felt did not provide requisite due process safeguards. I worked with a number of my colleagues to address that and I appreciate that leadership listened to our concerns and made some changes. One such change entitles an officer to a hearing within 15 days if there is a disciplinary action and makes sure his or her bargaining unit is also notified. Another adds a two-pronged approach for investigation, with an initial preponderance of evidence standard to start the investigation, but a higher “clear and convincing” evidence standard to de-certify. Given the seriousness of such an action I believe that is warranted. Another amendment preserves the ability of our District Attorneys to be included in the review process for officer involved incidents. An amendment I filed provides a clearer and defined time frame for police chiefs in which to notify the Commission of a complaint. This was a request from the Mass. Chiefs of Police and I was pleased to work to ensure it was adopted.
PROCESS FOR MINOR COMPLAINTS. Another significant amendment that I filed which was adopted (#64) had to do with setting a process for vetting minor complaints. The original bill mandated that every single complaint be submitted to the Commission and go through the same formal intake process. My amendment provided some appropriate flexibility for the Commission to streamline the handling of minor complaints if they don’t include the use of force or allegations of biased behavior. This improves due process and will avoid bogging down our system unnecessarily.
MY THOUGHTS. People of good faith can certainly have differing views on various aspects of this legislation, but I believe overall the bill makes important reforms that will strengthen our law enforcement system in Massachusetts, ensure that we are rewarding the many honorable men and woman of law enforcement by weeding out the few bad actors who should not be in the same line of work, and by making an important statement that we take seriously the principles of justice, equity and accountability.
During the bill review process and up through our debate and the final vote I heard from dozens and dozens of local residents, including many law enforcement officers, and I’ve been in regular contact with our local police chiefs and other stakeholders to hear their feedback. As you might expect there were lots of concerns, suggestions and viewpoints, both pro and con, on nearly every aspect of the bill. As a result of this feedback, I filed a number of amendments to the bill to work to strengthen it in various ways. Some of those amendments I described above. I appreciate everyone who took the time to reach out.
I do not agree with all that is in the bill (rare is the bill for which that can’t be said!) Some of the definitions, such as for the use of force, could benefit from more clarity to avoid unintended outcomes. It is not always easy to strike the proper balance between accountability and due process concerns and I will continue to work to ensure that we do. I do believe the House bill includes a number of needed measures and improves upon the legislation previously passed.
This bill will certainly not solve the issues of structural racism in our Commonwealth and I think it would be a mistake to pretend otherwise. Nor do I think it is fair to label this legislation a knee-jerk reaction to events in Minnesota. The death of George Floyd was certainly a catalyst for change, but many of the reforms included here were already needed. Some are in place today in other states.
WHAT HAPPENS NOW? The Senate passed their bill last week (S. 2800). The House bill approved today is H.4860. Because there are significant differences between the two bills the branches will have to negotiate a consensus bill. This will either happen via a formal Conference Committee or via an amendment process between House and Senate. Once this is done and enacted, the bill will go to Gov. Baker’s desk. He can then sign it, send it back with amendments or veto it, in part, or in whole.