Police Reform Bill: House Update

Last week, the House spent three days, ending late Friday night, debating a police reform bill and I wanted to share my thoughts and provide updates on what happened with the bill. As many of you know, bringing more equity and justice into our criminal justice reform has been a consistent priority for me in the legislature. The unjust murder of George Floyd at the hands of police only further amplified and prioritized the need to reform criminal justice, and in particular, policing practices in this country. It was clear that not only did we need more accountability for our law enforcement but we needed to create a system that people would have faith in and that would be just and equitable. I spoke in favor of the bill because it created a state-wide commission, majority civilian (5 of 7 members), that would be responsible for certifying, investigating, and, when necessary, disciplining law enforcement officers.  This is the basic reform, more than any other, that I think will bring more transparency and accountability both on an individual and systemic level.  The House bill was stronger than the Senate’s and Governor’s bills on this point.  There were many amendments filed by Republicans and conservative Democrats to weaken the bill and to further protect police. Those did not succeed.  I voted against all of them.There were also a series of amendments that addressed use of force, no-knock warrants, and weakening qualified immunity that I voted for, including: 

• Rep. Miranda offered an amendment that would require police to certify that there are no known children or elders in a location before a no-knock warrant could be executed. I voted in support of this amendment and it passed by a narrow margin of 83-76. 
• Rep. Connelly offered an amendment that would ban the use of tear gas. I voted in support of this amendment but unfortunately the amendment failed 38-121.  Police should not use tear gas on civilians.
• Rep. Lewis offered an amendment to require municipalities to have a hearing and vote before their police department can acquire military equipment. I voted in support of this amendment but unfortunately it failed 47-112. 

I also filed two amendments that would have weakened qualified immunity for police officers. Rep. Rogers of Cambridge, with my support and assistance, moved to further amend one of them (#195) to include language that would have effectively eliminated qualified immunity for police officers. Unfortunately, this further amendment failed 24-135.  I voted for this amendment.Now this bill sits before a conference committee to come up with a consensus on language between the House and the Senate before it can be enacted and sent to the Governor. I will keep you updated with the finalized language of the bill. Here is a link to the final bill as well as an overall summary of what was included: MASSACHUSETTS POLICE STANDARDS AND TRAINING COMMISSION 

• An independent commission consisting primarily of civilians with the responsibility of training, certifying, and disciplining all law enforcement officers in the Commonwealth. 
  • Commission Membership
    • 2 appointed by Governor
    • 2 appointed by AG
    • 3 appointed jointly by Governor and AG(1 shall be a chair from the Massachusetts Law Enforcement Policy Group, 1 shall be selected from list of 3 person submitted by the Massachusetts Coalition of Police)

USE OF DEADLY FORCE AND DUTY TO INTERVENE

• 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 of a person; (ii) prevent the escape from custody of a person; or (iii) prevent imminent harm and the amount of force used is proportional to the threat of imminent harm.

• 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, and such force is necessary to prevent imminent harm to a person and the amount of force used is proportional 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 proportional to the threat of imminent harm to a person.

• Tear gas/Rubber pellets/Dogs 
  • A law enforcement officer shall not discharge tear gas or any other chemical weapon, discharge rubber pellets or release 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 and 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 interceding will result in imminent harm to the officer or another identifiable person.
  • Requires an officer who observes unnecessary force to report it to his or her direct supervisor and prepare a detailed written statement. The officer’s statement shall be included in the supervisor’s report. 

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 the 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
• Special Commission on Structural Racism in Parole Process
• Special Commission on Structural Racism in Probation Services 

QUALIFIED IMMUNITY

• 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 the Massachusetts police standards and training commission. 

FACIAL RECOGNITION

• Forbids a public agency or employee from acquiring, accessing, or using any software that performs facial recognition except the Registry of Motor vehicles, as required by federal law.
• Only allows law enforcement to request, in writing, that the RMV perform a facial recognition search: (i) to execute a warrant duly authorized by a justice of the superior court based on probable cause that the search will to lead to evidence of the commission of a violent felony offense under the laws of the commonwealth; or (ii) without a warrant if the law enforcement agency reasonably believes that an emergency involving immediate danger of death or serious physical injury to any individual or group of people requires the performance of a facial recognition search without delay.
• The RMV will be required to document each use of facial recognition at the request of law enforcement, which shall be public record, and publish on its website 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.
• Establishes a special legislative commission to study the use of facial recognition technology by the Massachusetts Department of Transportation. 

PUBLIC RECORDS

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

CRIME OF SUBMITTING 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.