Conference Committee Report on S.2963, An Act Relative to Justice, Equity, and Accountability in Law Enforcement in the Commonwealth
In June, in the wake of the brutal murder of George Floyd and the racial justice uprising that followed, I was appointed, along with five Senate colleagues, to a bipartisan Senate Advisory Group on Racial Justice, formed by Senate President Karen Spilka who worked quickly to heed a call to action from our colleagues in the Black and Latino Legislative Caucus. When the Senate President convened the group, she said clearly that we were called forward for both a marathon and a sprint.
The sprint was embodied by our work on the Senate’s Reform, Shift + Build Act, our policing reform bill designed to increase police accountability, shift the role of law enforcement away from surveillance and punishment, and begin to dismantle systemic racism. The bill passed the Senate in mid-July.
While we weighed in on all aspects of the initial Senate bill, my team’s main contribution centered around crisis response, specifically prioritizing alternative, non-police response methods for situations involving mental health or substance abuse issues. You can read more about our initial work in my blog post here, and my thoughts on the Senate’s final bill here.
The Senate bill and a similar bill that had been passed by the House were then sent to a bi-partisan House/Senate Conference Committee to be reconciled. The conference committee’s compromise version was approved by the legislature last night. You can read the final approved bill here: S.2963.
In my view the final bill is, overall, strong. As my colleague Senator Sonia Chang-Diaz noted during her beautiful floor speech, the bill recognizes the Legislature’s duty to intervene in the face of pervasive racism, across all aspects of society. It makes a number of important advances to promote equity and justice in policing.
While some of the provisions that I supported were not included in the final compromise legislation, in the end, I voted in favor of the bill as an important step forward. I will continue to work to strengthen and expand the protections the bill establishes.
I’m proud to say that almost all of our original provisions on non-police crisis response were retained in the final conference committee bill. Below I’ve summarized those provisions, as well as many of the key provisions making up the remainder of the bill.
Center for Responsive Training in Crisis Intervention
The Massachusetts Department of Mental Health currently hosts a Center for Police Training in Crisis Intervention. The Center serves as a resource to public safety agencies and police departments for evidence-based mental health and substance use crisis response training programs. The Center gathers best practices from the field, and then generates and disseminates training programs based on these best practices.
I’m pleased that the expansion we proposed of the Center’s curriculum is retained in the final bill. The Center will now be required to provide training on de-escalation tactics and techniques in crisis response situations, best practices for protest response that minimize use of force, community policing principles, and training in institutional and structural racism and implicit bias.
The final bill also retains the name change from the “Center for Police Training in Crisis Intervention” to the “Center for Responsive Training in Crisis Intervention,” ensuring that the name adequately conveys the duties of the Center, as a resource for all individuals responding to crises, including social workers and others, in addition to police officers.
Learning from Existing Crisis Response Programs
There is a range of crisis response programs within police departments across the Commonwealth. Some police departments use grants from the Department of Mental Health to train officers to respond to behavioral health incidents, some to hire clinicians to accompany officers on behavioral health calls, and some to implement combinations of both.
The final bill retains our proposals to shift more resources to non-police response. The Community Policing and Behavioral Health Advisory Council would be required to study current and potential innovative crisis intervention models. The Council will identify effective crisis intervention and jail diversion programs throughout the Commonwealth and the nation and make recommendations for expanding or incorporating them, with a focus on delivering emergency services that reflect specific regional, racial, ethnic and sexual orientation needs and differences, as well as a focus on diverting individuals from the criminal justice system and emergency departments to more appropriate care and non-police, community based intervention programs.
The recommendations from this study will become part of the training to be disseminated as a resource to police departments around the Commonwealth and are also meant to provide a basis for any future legislation.
Important community stakeholders will be consulted in the design of the study including the National Association of Social Workers, the NAACP, the ACLU, the Massachusetts Association for Mental Health, and the Association for Behavioral Healthcare.
Important Steps in the Final Police Reform Bill
In addition to our contributions, the final Police Reform Bill takes several positive steps towards ensuring police accountability in the Commonwealth and reforming the role, training, and tactics of police officers.
Massachusetts Peace Officer Standards and Training Commission (MPOSTC)
This bill creates a Massachusetts Peace Officer Standards and Training Commission (MPOSTC)—an independent state entity, the majority of which is composed of civilians—to standardize the certification, training, and decertification of police officers. The commission will have independent power to investigate misconduct.
Within the Commission, there will be two divisions: the Division of Police Training and Certification, which is charged with training and developing certification standards for law enforcement officers, agencies, and schools, and the Division of Police Standards, which is the investigatory division.
Additionally, the Commission will maintain a public disclosure database containing all decertifications, suspensions, and re-training orders for police officers within the Commonwealth, as well as materials from any law enforcement misconduct investigations. No individual who has been decertified as a law enforcement officer anywhere in the country, according to the national decertification index and the database maintained by the Commonwealth, can be employed as a police officer in Massachusetts.
Additionally, this bill prohibits non-disclosure agreements (or NDAs) in police misconduct case settlements, unless the person who brought the complaint requests one.
I was pleased to see that the establishment of the MPOSTC was retained in the final conference committee report, as I believe it will provide increased oversight over police departments in the Commonwealth.
Use of Force and Duty to Intervene
The bill establishes strong guardrails governing the use of force, prohibiting certain actions and requiring the use of de-escalation tactics. The Committee on Police Training and Certification shall promulgate regulations for use of force standards.
The bill only allows an officer to 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: effect the lawful arrest or detention of a person; prevent the escape from custody of a person; or prevent imminent harm, provided that the amount of force used is proportionate to the threat of imminent harm.
The bill only allows an officer to 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.
The bill prohibits law enforcement officers from using chokeholds.
The bill prohibits law enforcement officers from discharging 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.
The bill prohibits a law enforcement officer from discharging or ordering the discharge of tear gas or any other chemical weapon, rubber pellets or a dog to control or influence a person’s behavior unless: de-escalation tactics have been attempted and failed or are not feasible based on the totality of the circumstances; and 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 MPOSTC. 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.
The bill 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. Additionally, it requires an officer who observes unnecessary force to report it to an appropriate supervisor and prepare a detailed written statement. Lastly, it 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.
The bill also 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.
I am pleased with the thorough steps taken by this bill to reduce the unnecessary use of force by police officers and require other officers to intervene when they witness inappropriate behavior. I look forward to having established policies and procedures for reporting police misconduct as required by this bill.
Qualified Immunity
The bill revokes qualified immunity for any law enforcement officer whose official actions result in that officer’s decertification by the MPOSTC. Qualified immunity is the legal doctrine which shields police officers from being liable in court when they are accused of violating someone’s civil rights.
The bill also establishes a commission to investigate and study the impact to the administration of justice of the qualified immunity doctrine in the Commonwealth.
While I am pleased to see that we will have further data on qualified immunity in Massachusetts, I am disappointed that the conference committee did not retain the language in the Senate bill which more significantly restricted the qualified immunity defense. The final bill hones more closely to the House language and makes modest changes to existing law.
Facial Recognition
This bill prohibits a public agency or employee from acquiring, accessing, or using any software that captures biometric data, including facial recognition, except for the Registry of Motor Vehicles. Law enforcement agencies can only utilize facial recognition technology after securing a warrant in search of a violent felony offense, or in circumstances involving immediate danger of death or serious physical injury to a person where requesting a warrant is impossible.
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.
The bill also establishes a special legislative commission to study the use of facial recognition technology by the Massachusetts Department of Transportation.
I am pleased at the steps taken to ban the use of facial recognition technology in this bill. It is an important first step in protecting the civil liberties of our residents in an age of increasingly new technology.
Ban on Racial Profiling
I’m pleased that the bill prohibits a law enforcement agency from engaging in racial profiling and authorizes the Attorney General to bring a civil action to enforce this ban. I am eager to see these changes implemented by police departments.
Massachusetts State Police Reform
The bill requires training by the state police to be approved by the MPOSTC and requires state police officers to be certified by the MPOSTC. It also allows the colonel of the state police to be appointed from outside of the state police, authorizes the colonel to establish a cadet program and expands the colonel’s authority to discipline officers.
Additionally, it redefines the state police promotion process to ensure more equity and accountability in leadership.
I’m pleased that the bill addresses some of the issues we have seen plaguing the Massachusetts State Police. These reorganizations are significant and I am hopeful that they will bring about meaningful change in the administration, leadership, and behavior of the State Police.
School Resource Officers and Limits on Student Record Sharing by Schools
The bill directs the committee on police training and certification 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. Any school resource officers must complete this training program and be certified to be able to serve in a school.
The bill also requires a superintendent to make a request to the chief of police for the appointment of a school resource officer, as opposed to automatically having a school resource officer in the school.
The bill 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 will be filed with the Department of Elementary and Secondary Education (DESE) and made public.
The bill 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.
Lastly, the bill prohibits school department personnel and school resource officers from disclosing certain student record information to law enforcement. This protects certain students who may be subject to racial profiling.
Protections for People in Custody
The bill establishes that 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 and can be prosecuted. 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 and can be prosecuted.
No-Knock Warrants
The bill restricts the ability to issue a no-knock warrant to situations in which an officer announcing their presence would endanger their life or the lives of others; and in which there is no reason to believe that minor children or adults over the age of 65 are in the home.
It also requires an officer executing a search warrant to knock and announce their presence unless they have a no-knock warrant or if there is a credible risk of imminent harm.
The tragic death of Breonna Taylor at the hands of the Louisville Police Department demonstrated the extreme danger that no-knock warrants pose. I am eager to see these changes implemented.
Expungement
The bill expands eligibility for record expungement from one criminal or juvenile record to two. The bill also allows multiple charges stemming from the same incident to be treated as once offense for the purposes of expungement. 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.
The presence of criminal records on a CORI can effectively disqualify individuals for housing, employment, and various other resources and opportunities which are critical to reducing recidivism. Often, multiple charges can arise out of the same incident for the same series of actions, yet, for the purposes of expungement, these charges must be treated separately. I’m pleased that this bill fixes that oversight. Once an individual has paid their debt to society for a crime committed, they should not be subject to further consequences that linger for years and increase the likelihood that they will be forced to revert back to criminal behavior to support themselves or their family.
Investigation of Structural Racism
The bill creates three special legislative commissions to study the presence of institutional and structural racism in correctional facilities, the parole process, and probation services.
Body Camera Task Force
The bill requires the executive office of public safety and security, in collaboration with the executive office of technology services and security, to establish the law enforcement body camera task force. The task force 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 task force shall propose minimum requirements for the storage and transfer of audio and video recordings collected by body-worn cameras.
Review of the Civil Service System
The bill 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.
Police Wages Accountability
The bill establishes that any law enforcement officer who knowingly submits a fraudulent timesheet shall be punished by a fine of three times the amount of the fraudulent wages paid or by imprisonment for not more than two years.
Additional Commissions
The bill establishes a number of additional commissions to study the criminal justice system in the Commonwealth. While I am pleased at the amount of data we will receive from these commissions, it is important to remember that we must use this data to take subsequent regulatory or legislative action. I look forward to turning the findings of these commissions into concrete changes to our laws. The following additional commissions were established by the bill:
- 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
