Police reform bill passes House

On Friday evening (7/24/2020), I joined 92 of my House colleagues in voting for a bill (H.4860, published as H4886, as amended) that will create a more modern, transparent and accountable system for law enforcement credentialing and training.  Forty-six states in America certify their police officers. Massachusetts is one of the four that does not.

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

I very much support the police. My vote reflects my desire, along with that of the many officers and chiefs I spoke with in considering the bill, to get rid of the bad apples. They are a stain on the 99% who do a great job.

We spent 35 hours over three days deliberating the bill, held public hearings on many of the components of the bill over the last year, and had another public hearing last week. We considered 217 amendments and the over 800 pieces of testimony that were submitted. I personally met with and spoke with several officers about the bill and listened to their concerns. In addition, I did a great deal of research on my own, incorporating my 34 years of experience as a trial attorney in Massachusetts. Moreover, I listened to and consulted with many of my colleagues in the House, one who happens to be a retired Massachusetts Police Chief.

Certification is important for all professionals. Indeed, lawyers 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. The woman who cuts my hair is licensed by the Commonwealth. And legislators, while not licensed, are accountable to the people and can be removed from office at elections held every two years.

How did we get here?

Over the last several months, we heard repeated stories about racism and demands that we as a Legislature change how we think about public safety. We have been implored to address the causes of systemic racism. And we saw repeated stories in the news and the courts about questionable conduct in the public safety arena such as:

And it disturbs me that some parents who have children of color feel compelled to have “the talk” about “driving while black” and what to do if they are approached by police. It is horrifying that any parent has to have that conversation. But racial profiling is a reality, and in these days of repeated and sometimes fatal confrontations, captured by cellphone videos, such warnings can be a matter of life and death.

This legislation is a partial response that would establish a right of citizens to “bias-free policing” in Massachusetts. We know that most of our officers are bias free, but we owe a duty to the public and to the members of law enforcement to ensure that training is consistent and is available in all areas of the state.

Certification

The bill 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.

Within the Commission will be a Division of Training and Certification which will establish uniform policies for the training and certification for law enforcement. This Division allows for a strong police presence in the development of standards as follows:

The division of police training and certification shall be under the management and control of a committee on police training and certification. The committee shall consist of: 5 chiefs of police to be appointed by the governor from nominations submitted by the Massachusetts Chiefs of Police Association Incorporated, 1 of whom shall be from the western Massachusetts region, 1 of whom shall be from the central Massachusetts region, 1 of whom shall be from the southeastern Massachusetts region, 1 of whom shall be from the northeastern Massachusetts region and 1 of whom shall be from the Massachusetts Bay Transportation Authority; 1 chief of police selected by the Massachusetts Chiefs of Police Association Incorporated; 1 police officer to be appointed by the governor from nominations submitted by the Massachusetts Police Association, Inc. executive board and the Massachusetts Police Training Officers Association, Inc. executive board; the commissioner of police of the city of Boston; the colonel of state police or a designee; 2 sheriffs appointed by the governor; the attorney general or a designee; and 1 person to be appointed by the secretary of public safety and security. All such appointments shall be for terms of 3 years with successors appointed in a like manner.

The bill also establishes new training and certification requirements for school resource officers, and establishes a new commission to develop a memorandum of understanding about the role of school resource officers and how they will interact with students.

Qualified Immunity

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 why I filed an amendment (#204) that creates a special legislative commission to study the origins and interpretation of qualified immunity. The precise language that was adopted can be found by clicking here. The commission is expected to submit a report of its study and recommendations by March 31, 2021.

Due Process

When the legislation was first released we heard concerns about protecting requisite due process safeguards. Through the amendment process, we worked out these 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. Another amendment preserves the ability of our District Attorneys to be included in the review process for officer involved incidents. Another provides a clearer and defined time frame for police chiefs in which to notify the Commission of a complaint. Finally, we adopted an amendment setting a process for vetting minor complaints. It provided some appropriate flexibility for the Commission to streamline the handling of minor complaints if they do not include the use of force or allegations of biased behavior.

Tear Gas

The bill restricts the 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. Here is the language from the bill:

A law enforcement officer shall not discharge tear gas or any other chemical weapon, discharge rubber pellets from a propulsion device 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 a law enforcement officer utilizes tear gas or any other chemical weapon, rubber pellets or a dog against a crowd, the law enforcement officer’s appointing agency shall file a report with the commission detailing all measures that were taken in advance of the event to reduce the probability of disorder and all de-escalation tactics and other measures that were taken at the time of the event to de-escalate tensions and avoid the necessity of using the tear gas or other chemical weapon, rubber pellets or dog. The commission shall review the report and may make any additional investigation. After such review and investigation the commission shall, if applicable, make a finding as to whether the pre-event and contemporaneous de-escalation tactics were adequate and whether the use of such tear gas or other chemical weapon, rubber pellets or dog was justified..

Section 29 of the bill defines “imminent harm” as serious physical injury or death that is likely to be caused by a person with the present ability, opportunity and apparent intent to immediately cause serious physical injury or death and is a risk that, based on the information available at the time, must be instantly confronted and addressed to prevent serious physical injury or death; provided, however, that imminent harm shall not include fear of future serious physical injury or death.

There was an amendment (which was defeated) that would have banned all chemical sprays in all circumstances, including the mace that civilians carry, the pepper spray which is a mild eye irritant, and OC spray. I voted against this amendment because felt that the restrictions on tear gas already included in the bill were sufficient.

While I see no use for tear gas to break up a peaceful protest, in the event of imminent harm, I found myself asking “what do we want the police to do?” Walk away, use a gun, send in dogs, resort to fire hoses? With appropriate training and education, I would want them to use force consummate with and proportionate to the risk.

One clear example comes to mind. In 2016, Jorge Zambrano killed an Auburn Police Officer and went on the run with weapons. He ended up barricaded in a home. Troopers used loudspeakers, a robot, a police dog, and chemical munitions to try to get Zambrano to exit the Oxford duplex peacefully, without success. They ended up having to go into the house where more shots were fired, a State Trooper was injured, and the suspect died. That is clearly a situation where the tactical use of tear gas was warranted. The face-to-face contact increases the risk of harm. And that is why I could not join in an outright ban on tear gas.

Other Pieces of the Bill

Here are some of the other provisions in the bill:

  • It limits the use of Facial Recognition technology and sets legal standards for its use.
  • It sets standards for officers to intervene if they witness another officer using excessive force.
  • It bans chokeholds, defined as a lateral vascular neck restraint to limit breathing or blood flow with the result of bodily injury, unconsciousness or death.
  • It puts new limits on use of “No-Knock” warrants. It would require that they be issued by a judge upon supporting affidavit that such action is necessary to prevent endangering the life of the officer or others and a reasonable belief that there is no child in the home.
  • It creates several legislative commissions to further study issues of inequality and racism in Correctional Facilities, Parole Process and Probation Services.
  • The bill would create a new permanent Commission on the Status of African Americans to help policy makers develop solutions to discrimination and other issues facing the Black community. The commission would be a resource for policy makers and a “clearinghouse” of research and information on issues impacting the Black community in Massachusetts.
  • It sets up review of existing the civil service system with a Commission that 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.
  • It includes developing a curriculum for basic and in-service training for officers on dealing with individuals with autism and other intellectual or developmental disabilities along with the creation of a permanent commission on the status of persons with disabilities to look at these issues in a broader and holistic way.
  • Finally, the bill incorporates some changes to the governance of the State Police sought by Gov. Baker earlier in the year that would, among other changes, allow a governor to hire the colonel of the State Police from outside the department.

What Happens Now?

The Senate passed its bill last week (S.2800). Because there are significant differences between the two bills the branches will have to negotiate a consensus bill. This can happen with the appointment of a formal Conference Committee or via an amendment process between the House and Senate. Once this is done, it comes back to both chambers for enactment and then to Gov. Baker’s desk. He can then sign it, send it back with amendments, or veto it, in part, or in whole.

Conclusion

The bill will provide police departments with the tools they need to build trust and strong relationships with every community across the Commonwealth at a time when we need it most. The police will not be unduly constrained by this bill which is a measured and thoughtful approach to some complex issues. I truly believe policing will be stronger as a result.

People can certainly have differing views on various aspects of this legislation, and I know I have heard from many from both sides of the issue. Some say we didn’t do enough, and others contend we went too far. Nonetheless, I am confident that overall it makes important and necessary reforms that will strengthen our law enforcement system in Massachusetts and uphold the principles of justice, equity and accountability.

The police departments in the 10th Norfolk District are made up of, and led by, some great professionals. This bill will bring more departments in Massachusetts up to the standards set by Chiefs Lynch and Tingley and the fine officers in Franklin and Medway.

 

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