Update: Compromise Policing Reform measure approved by Legislature

On Wednesday the Legislature approved a compromise Policing Reform bill designed to create a new law enforcement accountability and oversight system here in Massachusetts.

This bill is what we call a Conference Committee Report, which means it’s a compromise between two different bills approved by the House (H. 4860) and Senate (S.2820) earlier this year. Generally speaking this final version hews more closely to the House bill, but there are few key differences which I will explain in a moment.

First off, since I know there is a great deal of interest let me emphasize at the outset that the bill does NOT defund the police and does NOT eliminate qualified immunity.

What the legislation does do and what is at the core of this effort is creating a system of professional licensure and certification for law enforcement officers. This is commonly known as a POST (Police Officer Standards & Training) system. Professional certification and licensing is already a common requirement for many other trades and professions.

We know that police officers in our region already hold themselves to exemplary standards, but that is not necessarily always the case in every part of the state, so this will provide some important consistency. Currently forty-six (46) other states have a POST system in place; Massachusetts is one of just four that do not, according to a report by the State Auditor last year.

The Auditor’s report found that while Massachusetts has some of the strongest training and hourly requirements in the nation, they are not always uniformly applied and there is no mechanism to enforce them, or track substantiated cases of police misconduct.

We know that the vast majority of men and women who serve in law enforcement do so with honor and dedication, but there are a small number who do not. Holding these bad actors accountable will strengthen our system of law enforcement for everyone and help address broader issues of racial justice.

This POST system will be overseen by a new civil enforcement agency. This commission will be tasked with setting police standards across the state, certifying law enforcement officers, and investigating potential wrongdoing.

Here’s a rundown on the commission and other key aspects of the compromise bill:

POST COMMISSION
The bill features an independent nine-member POST Commission which will have the authority to investigate police misconduct and oversee police certification, discipline and training standards. This Commission will include law enforcement representation, but will be primarily civilian led. All of the Commissioners would be appointed by the Governor and the Attorney General. Three of the members would be chosen from current law enforcement officers, including one police chief and two rank and file officers. (This is a change from the original House bill which did not have a police chief representative and was only seven members.) Other members would include a retired judge, an attorney, a nominee from the Mass. Commission Against Discrimination and a member with a background in social work. The remaining two members would be chosen at large.

The civilian members of the Commission would be required to have experience or expertise in related areas, including law enforcement practice and training, criminal law, civil rights, the criminal justice system, mental health, post-traumatic stress disorder, and crisis intervention. The Commissioners would each serve five-year terms and could not hold federal, state or local elected office during that time. The Commission would choose a full-time Executive Director with management experience. The Commission would be comprised of two divisions as follows:

DIVISION OF TRAINING & CERTIFICATION
Operating under the Commission would be a Division of Police Training and Certification. This Division would set uniform policies and best practices for police training, establish curricula for new recruits and in-service training, set standards for maintenance of police licensure or certification, and create other specialized training programs as needed. This Division will be managed by the Committee on Police Training and Certification, which is comprised of nearly all law enforcement professionals, including five police chiefs, two sheriffs, and representatives from the state police, attorney general and secretary of public safety. The existing Municipal Police Training Committee would be folded into this Division.

DIVISION OF POLICE STANDARDS
The Division of Police Standards would be comprised of administrative staff and would be responsible for investigating misconduct, submitting disciplinary information to the Commission, and maintaining a database of complaints. Their work would be based on the certification standards recommended by the Division of Police Training and Certification.

DUE PROCESS HEARING & APPEALS
Once a complaint is lodged and referred to the Commission, the officer, the head of their collective bargaining unit, and the head of the local appointing authority would be notified. Depending on the severity, the Commission must or may initiate a preliminary inquiry. A revocation or suspension hearing would occur after the local appointing authority has had an opportunity to render a disposition, unless it fails to do so within one year. The Commission could only revoke or suspend an officer’s certification by a legal standard known as clear and convincing evidence. There is a right to a hearing and a decision of the Commission would be subject to appeal under the state’s existing Chapter 30A administrative appeals process.

FACIAL RECOGNITION/BIOMETRICS
The bill limits the use of facial recognition and biometric surveillance systems and sets legal standards regulating their use.

LIMITS ON CHEMICAL SPRAYS
The bill strictly limits any use of chemical sprays to cases where all other de-escalation tactics have been unsuccessful and such measures are necessary to prevent imminent harm. The bill also requires such cases to be documented and reported to local appointing authority.

‘NO-KNOCK’ WARRANTS
The bill puts new limits on use of “No-Knock” warrants. Such warrants must be issued by a judge and require a supporting affidavit that such action is necessary to prevent endangering the life of the officer or others.

DUTY TO INTERVENE
Sets standards for a police officer to intervene if they witness another officer using unnecessary excessive force, unless intervening will result in imminent harm to the officer or another individual.

NO CHOKEHOLDS
The bill 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 intent or result of causing bodily injury, unconsciousness or death. It also gives the new police training and certification committee authority to promulgate rules for the administration and enforcement of this ban.

USE OF FORCE GUIDELINES
The compromise bill establishes a set of guidelines to require de-escalation tactics before the use of force, unless de-escalation tactics are not feasible based on the totality of the circumstances. Our current in-service training programs includes guidelines on the use of force, but until now no such guidelines haver existed in statute.

K9 USE/K9 OFFICERS
This is a small but significant update and one that I was involved with. The original bill included some language that could have created liability issues regarding the use of K9s and inadvertently curtailed their use. I worked with the American Kennel Club (AKC) and K9 officers to come up with a solution and corrective language. We had several Zoom meetings on this issue and I’m pleased that the Conference Committee accepted our changes in the final bill. There are an estimated 200 police K-9 officers across the state and this will help so they can continue to provide this critical service. I appreciate this letter from the AKC & K9 group acknowledging our efforts. See additional AKC statement.



SCHOOL RESOURCE OFFICER
The compromise 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 and gives the school superintendent a voice in whether to request a school resource officer. The compromise bill does NOT prevent a school district from reporting gang activity within the school as long as it is related to a specific unlawful incident.

AUTISM/IDD TRAINING
The bill includes language for a curriculum for basic and in-service training for officers on dealing with individuals with autism and other intellectual or developmental disabilities. The bill also includes an amendment I filed to the original House bill which was retained in the final version. This provision will establish a permanent commission on the status of persons with disabilities to look at these issues in a broader and holistic way. This has been one of the priority goals of our WorkAbility Subcommittee focused on workforce development for persons with disabilities.

PROCESS FOR MINOR COMPLAINTS
This was an amendment I had originally worked with the Mass. Chiefs of Police Association during the original House debate this summer. My amendment had to do with setting a process for vetting minor complaints. The original draft 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 amendment was adopted during our House floor debate back in July and I’m pleased to report that it made it all the way through and was included in the final compromise version today. This will improve due process and will avoid bogging down our system unnecessarily.

Another 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. This amendment was initially adopted during the House floor debate and was included by the Conference Committee in the final version as well.

ADDITIONAL SPECIAL COMMISSIONS
The bill creates several legislative commissions to further study issues of inequality and racism in correctional facilities, parole process, probation services and civil service reform.

JUVENILE JUSTICE & EXPUNGEMENT
The bill 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.

QUALIFIED IMMUNITY
As mentioned at the outset, the compromise bill does NOT eliminate qualified immunity for police officers. (The original Senate bill did include some language removing QI, but that was not included in the House bill, nor was it included in this version.) This bill only does two things with respect to qualified immunity: 1) It limits qualified immunity for a police officer who has broken the law and been decertified. 2) It creates a special commission to further study and report back on the issue of qualified immunity with membership to include a mix of legislative, law enforcement and legal experts. That’s it.

Why did we take this approach? Well, the legal doctrine of qualified immunity is a complex one and legal scholars have different views on its application. Qualified immunity is primarily a common law, or judge-made doctrine, and so taking a narrow and conservative approach here was by design. No one wants to see a police officer face financial jeopardy just because he or she made a mistake on the job — that happens to all of us — and none will under this bill. On the other hand there also needs to be a way for victims of serious crime to seek redress for reckless acts of police brutality. I expect that this is among the thorny issues the commission will look into. To be clear nothing in the bill would expose a police officer (or any other first responder) to any new liability in any other circumstance. I have seen claims that under the bill, or previous iterations, a police officer who cracks a person’s rib while performing CPR will now get sued. That is false.

WHAT HAPPENS NOW?

Because this is a Conference Committee report it gets an up or down vote (no amendments) in each branch. There are a couple of procedural steps to follow and then it goes to the Governor. I’ll go over that in a moment, but first let me summarize the process and how we got to this point:

· Legislation to create a POST system was introduced in January of 2019. A public hearing by the Judiciary Committee was held in July of 2019.

· The State Auditor issued a report in November of 2019.

· Legislature’s Black & Latino Caucus issues 10 point police accountability plan recommendations on June 17, 2020

· Gov. Baker filed an updated policing reform bill on June 18, 2020.

· The Senate passed their version of policing reform legislation (S. 2820) on July 14.

· The House version of policing reform was passed July 24 after three days of floor debate, 217 amendments and 800+ pieces of public testimony submitted.

· A joint House-Senate Conference Committee was appointed on July 27. This bipartisan, six member committee has been working to negotiate a compromise version between the two branches. The Conference Committee reached an agreement on Nov. 30.

On Wednesday the House and Senate both voted to adopt the Conference Committee Report. The House voted by a 92-67 margin and the Senate voted 28-12. I joined in voting in favor of adopting this compromise version.

The Governor now has ten days to review the bill. He can sign the bill into law, veto it, allow it to become law without his signature after a period of time, or send it back with recommended amendments. All of this would need to be resolved before the current Legislative session ends January 6.