Senate Vote: July 14, 2020

At 4:12 am on Tuesday, July 14, after having been in session since 11:00 am the day prior, the Massachusetts State Senate voted 30 to 7 (with 3 voting present) to pass S.2800: An Act to reform police standards and shift resources to build a more equitable, fair and just commonwealth that values Black lives and communities of color (Reform – Shift – Build Act). 

Voting NO were five Democrats — Nick Collins, Anne Gobi, Michael Moore, Mike Rush, and John Velis — and two Republicans — Ryan Fattman and Dean Tran. Voting present were Democrat Diana DiZoglio and Republicans Patrick O’Connor and Bruce Tarr. Notably, two of the YES votes spoke on the floor that they hoped that the House would weaken the bill: Democrats Mike Brady and Marc Pacheco. 

What the Bill Does (And Doesn’t Do) 

The bill strengthens the use of force standards for all law enforcement agents, creates a majority-civilian Police Officer Standards and Accreditation Commission (POSAC) charged with certifying and decertifying law enforcement officers, establishes a Justice Reinvestment Fund to move money away from policing and prisons and into education and workforce development opportunities, places a moratorium on facial surveillance technology, reduces the school-to-prison pipeline by prioritizing student safety over criminalization, removes barriers to expungement of juvenile records, establishes stronger oversight and limitations on the procurement of military equipment by law enforcement, bans racial profiling in law enforcement, creates a commission on the status of African Americans and (as amended) the Latinx community, and requires increased data collection and reporting.

It also bans certain practices that are — absurdly — not already illegal, e.g., police officers having sex with individuals in custody (something that can never truly be consensual). 

The bill, unfortunately, does not go far enough. The definition of “chokehold” in the bill’s ban on chokeholds is too narrow (more on that later). The bans on tear gas and no-knock raids have considerable loopholes. The bill, moreover, could have done more to limit the scope of policing, as the main way to reduce police brutality is to reduce the possibility of interactions with police. And the doctrine of qualified immunity — which permits law enforcement to violate people’s constitutional rights with virtual impunity — should have been outright abolished rather than just limited. But all that said, it is still a significant step forward.

Some Things Weren’t Controversial 

Senators filed a total of 146 amendments, some of which got voted up or down by voice vote, some of which were withdrawn (47, to be exact), and some of which received recorded votes.

Eight amendments received unanimous recorded votes: 

• Amendment #7 (Intervention) from Minority Leader Bruce Tarr, which clarified that the duty to intervene applied to other officers and not to bystanders
• Amendment #9 (Minority Appointments) from Minority Leader Bruce Tarr, which would give the Republican minority the ability to appoint a member to the commission on the status of African Americans 
• Amendment #16 (Creating a Commission on Structural Racism) from Harriette Chandler, which would create a commission to study structural racism in policing and the criminal-legal system and recommend policy solutions to eliminate it 
• Amendment #28 (Removing offensive language against LGBTQ+ individuals) from Harriette Chandler, which replaced some archaic language in the bill 
• Amendment #39 (Latinx Commission) from Joe Boncore, which would create a commission on the status of the Latinx community 
• Amendment #43 (POSAC and MPTC Membership) from Bruce Tarr, which requires the police officer standards and accreditation committee and the municipal police training committee to meet twice a year to review and make recommendations to improve current police officer training standards
• Amendment #103 (Defining Totality of the Circumstances) from John Keenan, which would alter the definition of “totality of the circumstances” to include information prior to interaction

Amendments that passed by voice vote included ones to increase access to records (#59, #113), strengthen data tracking/reporting (#76, #80), strengthen requirements in de-escalation training (#30, #41), promote alternatives to incarceration (#36), ensure that decertified officers cannot serve as correctional officers in prisons and jails (#27), and require a public process before any state purchase of military equipment (#38). Among the withdrawn amendments were ones to decriminalize homelessness, ban no-knock raids, and lift the cap on the bill’s Justice Reinvestment Fund. 

But Let’s Get on to the Contested Votes 

The first contested vote of the evening was on Bruce Tarr’s Amendment #117 (Implementation), which would have required an unnecessary fiscal study of the bill to bog down implementation. The amendment failed on a vote of 12 to 27. Joining the four Republicans were Mike Brady, Nick Collins, Diana DiZoglio, Michael Moore, Marc Pacheco, Walter Timilty, John Velis, and Jim Welch. 

Juvenile Justice 

Anne Gobi’s Amendment #123 (County Correction and Juvenile Detention Officers Commission), which would have struck the language creating a commission on the use of force in juvenile detention facilities (yes, they thought that a *commission* was a step too far), failed on a vote of 16 to 24. 12 Democrats joined the four Republicans in voting for it: Mike Brady, Diana DiZoglio, Paul Feeney, Barry Finegold, Anne Gobi, Edward Kennedy, Joan Lovely, Michael Moore, Marc Pacheco, Walter Timilty, John Velis, and Jim Welch. 

Pat Jehlen’s amendment #108 (Protecting Students From Profiling), which would protect students from having school officials wrongfully entering them into a gang database and risking their deportation, passed on a vote of 27 to 12. (Learn more about the issue here.)

Joining the 4 Republicans in voting NO were Brady, Collins, Gobi, Kennedy, Moore, Pacheco, Velis, and Welch.

Qualified Immunity 

One of the main points of contention in the bill — one for which senators were bombarded with calls from police officers and their families — was the language to limit qualified immunity. 

The doctrine of qualified immunity grants impunity to public officials (especially law enforcement) who violate someone’s constitutional rights unless there is an identical situation in case law in which a public official was held accountable. In short, it gives carte blanche to police officers to violate people’s basic rights. Read more on the doctrine here.

The Senate bill reforms qualified immunity so that an officer may be held civilly liable for excessive use of force.

The Senate took two recorded votes on this issue. 

The first was on a corrective amendment (#121) introduced by Ways & Means chairman Michael Rodrigues to clarify that public officials would remain indemnified in such lawsuits. Police officers’ wives had been calling senators sobbing that they could lose their homes if QI were touched. That’s obviously false: public employees’ own assets are not seized in such cases. (Whether or not police should be personally liable — that’s another issue entirely). The amendment was mostly — but not entirely — a proxy for support for the QI reforms in the bill. It passed on a vote of 26 to 14. 

Joining the four Republicans in voting NO were Brady, Collins, DiZoglio, Feeney, Gobi, Keenan, Pacheco, Timilty, Velis, and Welch. 

The second vote was on an amendment from John Velis to delay the qualified immunity reforms in the bill for 180 days (#137, Special Commission to Study Qualified Immunity). As Sonia Chang-Diaz pointedly noted during the debate on the amendment, “People of color in MA have a unique resource right now: the attention of a mostly white electorate. It is a resource that is born in tragedy and born in anguish. And it is a resource that will not be there in 6 months.” 

The amendment failed on a vote of 16 to 24. 

Twelve Democrats joined Republicans in voting for it: Brady, Collins, DiZoglio, Feeney, Gobi, Keenan, Moore, Pacheco, Rush, Timilty, Velis, and Welch. 

Police Officer Standards and Accreditation Commission

The Senate voted down two efforts to undermine the certifying/decertifying body created by the bill. 

Ryan Fattman’s amendment #51 (POSAC), which would have replaced the ​Police Officer Standards and Accreditation Commission in the bill with Governor Charlie Baker’s weaker and non-independent version, failed on a vote of 10 to 29. 

Joining the four Republicans in voting for it were Brady, DiZoglio, Gobi, Moran, Pacheco, and Timilty.

Nick Collins’s amendment #134 (Opportunity to Appeal), which would have made it harder to decertify law-breaking police officers, failed on a vote of 16 to 24.

Joining the Republicans in voting for it were Brady, Collins, DiZoglio, Feeney, Gobi, Keenan, Moore, Montigny, Pacheco, Timilty, Velis, and Welch.

Chokeholds

The definition of a chokehold in the bill is, unfortunately, so narrow that Derek Chauvin’s choke hold of George Floyd would really only be illegal in the final seconds.

Jim Welch’s amendment #58 (Clarifying the Definition of Choke Hold) sought to fix that, but it failed on a vote of 16 to 24. 

The 16 senators who voted to actually ban chokeholds were Sonia Chang-Diaz, Nick Collins, Jo Comerford, Cindy Creem, Julian Cyr, Sal DiDomenico, Diana DiZoglio, Jamie Eldridge, Adam Hinds, Pat Jehlen, Eric Lesser, Joan Lovely, Mark Montigny, Becca Rausch, John Velis, and Jim Welch — a strange bedfellows mix of the progressives and some of the most conservative Democrats. 

Dean Tran sought to weaken the too-weak language even further with his amendment #62 (Chokehold in self-defense), but it failed overwhelmingly on a vote of 3 to 36, with only Ryan Fattman and Patrick O’Connor joining him.

Let’s look at some votes.

House Vote: July 24, 2020

Late Friday evening, the MA House passed its police reform bill, following the Senate’s passage of the Reform – Shift – Build Act the prior week. Like the Senate bill, it creates a certification/decertification body for police officers, something almost every other state already has, and strengthens regulations around the use of force.

While the bill went slightly further than the Senate bill on the use of force and had stronger regulations on the use of facial surveillance, it barely touched the issue of qualified immunity (the legal doctrine that shields abusive police officers from lawsuits and denies victims their fair day in court), dropped language limiting and regulating the acquisition of military equipment, and failed to include the Senate’s stronger language on reducing the school-to-prison pipeline or on a Justice Reinvestment Fund (which would invest sums equivalent to DOC savings into opportunities for impacted communities). And neither bill goes as far as necessary to truly limit the scope of policing, i.e., shifting functions away from police departments and to trained social workers and other non-armed professionals (We don’t need armed police to show up when someone has a mental health episode).

The final vote on the bill was 93 to 66 (see roll call below). The House and Senate will now have to work to come up with consensus language.

Over the course of Wednesday, Thursday, and Friday, the House considered 221 amendments and had far more floor debate than is usual for the top-down chamber. Indeed, many votes were far closer than the lop-sided votes that are so common.

The POST Commission

Republicans and and conservative Democrats sought to narrow the power and independence of the body charged with certifying and decertifying police officers, while the Black & Latino Caucus, along with progressive allies, sought to strengthen it.

Independence of the Commission

Rep. David Muradian (R-Grafton) offered an amendment (#181, RC215) to increase the police influence on the POST commission by allowing the civilian members of the commission to be former police officers or relatives of police officers.

The amendment failed on a comparatively close vote of 68 to 90, with a nearly a third of the Democratic caucus defecting to the right.

Rep. Sheila Harrington (R-Groton) offered an amendment (#174, RC216) to make the POST commission a majority-police commission (explicitly making the change Muradian’s amendment implicitly wanted to make).

The amendment failed 53 to 106, garnering less Democratic support (but still too much).

Scope & Power of the Commission

Unprofessional Police Conduct: Rep. Timothy Whelan (R-Brewster) offered an amendment (#29, RC202) to offer a specific definition for “unprofessional police conduct.” The bill notes that the commission should identify patterns of police conduct including but not limited to “(A) escalating behavior that may lead to the use of excessive force or conduct that is biased on the basis of race, ethnicity, sex, gender identity, sexual orientation, religion, mental or physical disability, immigration status or socioeconomic or professional level; (B) an increase in the frequency of complaints regarding an individual officer or agency; or (C) the number of complaints regarding an officer or agency that are at least 1 standard deviation above the mean for similarly situated officers or agencies for a defined period,” which already offers clear guidance. Whelan sought to limit the definition to a more narrowly defined”on-duty behavior by a law enforcement officer which is established by probable cause to be a violation of state and/or federal law, excessive use of physical force, or repeated, sustained instances of behaviors which violate departmental policies or bring the law enforcement agency into disrepute” (without, as the current text offers, the ability to expand the definition based on data).

The amendment failed 44 to 115, with some conservative Democrats joining Republicans.

Evidentiary Standards: Rep. Andy Vargas (D-Haverhill), with the backing of the Black & Latino Caucus, offered an amendment (#77, RC208) to change the evidentiary threshold for decertifying an abusive cop from “clear and convincing evidence” to “the preponderance of the evidence.” The “preponderance of the evidence” means that, with all information weighed, an allegation is more likely to be true than not true. “Clear and convincing” sets a much higher threshold, and when keeping abusive cops on the force means the continued violation of people’s basic constitutional rights, such a standard is simply too high.

The amendment failed 46 to 113, with progressives voting off.

Making It Harder to Decertify a Cop: The bill requires police chiefs to immediately transmit any complaint to the POST Commission. Marc Lombardo (R-Billerica) offered an amendment (#58, 209) to only require that to happen if there is a “sustained complaint received from an identifiable complainant and signed under the pains and penalties of perjury,” thus making it more difficult to prevent abusive behavior until it is too late and subjecting complainants to retaliation. 

The amendment failed 34 to 124, with only three Democrats voting with Republicans.

Lombardo also offered an amendment (#61, RC210) eliminating officers’ offenses prior to the creation of the certification commission as possible grounds for decertification, thereby denying justice and helping abusive officers stay on the force.

Giving Bad Cops a Loophole: Rep. Alyson Sullivan (R-Abington) offered an amendment (#118, RC211) to make it optional for the standards & training commission to decertify a cop when the commission finds strong evidence said cop has committed a serious offense, giving far too much leeway and providing a loophole by which abusive cops could stay on the force.

The amendment failed 44 to 114, with some conservative Democrats joining Republicans.

Use of Force & Militarization of Police

No-Knock Warrants: Rep. Liz Miranda (D-Roxbury/Dorchester) offered an amendment (#116, RC203) to require police to certify that there are no known children or elders in a location before they can secure a no-knock warrant. No-knock warrants are a result of the drug war, and they have often proven deadly, as in the tragic case of Breonna Taylor earlier this year.

House Leadership promised that it would pass, and it did — but barely — with an uncommonly close vote of 83 to 76.

Tear Gas: Rep. Mike Connolly (D-Cambridge) offered an amendment (#200, RC207) to ban the use of tear gas. Chemical weapons are banned under the Geneva Convention. There is no legitimate reason for police forces to use them.

Nonetheless, the amendment failed 38 to 121. That’s right: 121 representatives, including the majority of Democrats, voted against banning tear gas.

Attack Dogs: Rep. Pat Kearney (D-Scituate) offered an amendment (#169, RC214) to eliminate language in the bill including attacks by police dogs under the definition of “officer-involved injury or death.”

It failed 43 to 115.

Regulating the Acquisition of Military Equipment: Rep. Jack Lewis (D-Framingham) offered an amendment (#131, RC225) to require municipalities to have a hearing and a vote before their police department can acquire military equipment. Is that really too much to ask?

Apparently so, including every Republican and the majority of Democrats in the MA Legislature. The amendment failed 47 to 112.

Qualified Immunity

One of the main points of contention in the police reform debate has been the question of qualified immunity.

The doctrine of qualified immunity grants impunity to public officials (especially law enforcement) who violate someone’s constitutional rights unless there is an identical situation in case law in which a public official was held accountable. In short, it gives carte balance to police officers to violate people’s basic rights. Read more on the doctrine here.

The House offered much weaker language on qualified immunity than the Senate, limiting immunity only if an officer is decertified and only if the attorney general brings the lawsuit.

During floor debate, thematically similar amendments are often combined into “consolidated” amendments, which pick and choose language (or discard included amendments entirely). Consolidated A combined some amendments to yield some modest changes to the language around POST Commission processes and procedures, and Consolidated B combined amendments related to the composition of different commissions. Both passed with token opposition.

However, Consolidated C, which packaged together the QI-related amendments, got interesting. The amendment itself simply proposed creating a commission to investigate and study the impact of QI doctrine.

Limiting Qualified Immunity: Rep. Jon Hecht (D-Watertown)’s amendment #176 on QI was originally included. The amendment, a priority of the ACLU, would enable victims of police brutality to hold officers accountable in court by allowing officers to claim immunity only if it was clearly established that their conduct was lawful.

Rep. Mark Cusack (D-Braintree) offered a further amendment to Rep. Jay Livingstone (D-Boston)’s #195 to replace it with the text of #176, and then Rep. Dave Rogers (D-Belmont) asked for a recorded vote.

Unfortunately, the amendment failed 24 to 135. That’s right: only 24 representatives supported enabling victims of police brutality to have their fair day in court.

Striking the Bill’s QI Language: Rep. Brad Hill (R-Ipswich) offered a further amendment to Consolidated C to eliminate the QI language in the bill entirely.

The amendment failed in a fairly close vote of 72 to 87.

Qualified Immunity Commission: The QI commission in the consolidated amendment was even too much for conservative representatives of both parties. The amendment passed 115 to 44, with more than a dozen Democrats and almost every Republican voting no.

Let’s look at some votes.

Conference Report: December 2, 2020

The Senate voted 28 to 12, with 8 conservative Democrats joining the 4 Republicans in voting against it. Note that the Senate had a veto-proof majority.

The House voted 92 to 67, with 35 conservative Democrats joining the 31 Republicans (and one Independent) in voting no. Note that this falls 14 votes shy of a veto-proof majority.

Final passage – Round 1: December 21, 2020

This weekend saw renewed attention to the lawlessness far too common among law enforcement, with the release of video footage of cops bragging about brutalizing protesters earlier this summer and a Globe story about how police officers are able to commit crimes off duty with impunity.

Unfortunately, while the news was underscoring why we need to be going further in imposing public accountability of policing and shifting our definition of (and resources for) public safety away from policing, the MA Legislature was narrowing the ambition of its police reform bill.

Rather than signing the MA House and Senate’s consensus police reform bill, Republican Governor Charlie Baker showed his true colors again by threatening to veto it unless the Legislature watered it down.

The Senate, to its credit, had passed both its own bill in July and the more recent consensus bill with veto-proof majorities (30 to 7 and then 28 to 12). If they were the sole chamber, they could have passed the stronger bill from earlier this month (which, itself, was a compromise).

But despite Democrats’ 80% majority in the House, the House never came close to a super-majority in support of the bill. They passed the consensus bill by only 92 to 67, a remarkably close vote by House standards and well shy of the 106 needed for an override. One wonders how committed House Leadership really was to their own bill, given how easily they can whip support when they want.

The Senate thus chose to weaken the bill to secure the Governor’s support, adopting most (but not all) of his proposed amendments to the bill. The Senate voted 31 to 9 to pass the new bill, gaining the support of three no votes from earlier this month (Diana DiZoglio, Marc Pacheco, and Bruce Tarr).

So About the New Bill?

Although the broad contours of the bill remain the same, and many parts of it are worth praise, the redraft of the bill is weaker in a few notable ways:

• Police in Charge of Setting Their Own Training: The new bill keeps the all-law-enforcement municipal police training committee under the administration’s Executive Office of Public Safety and Security (a well-documented bad actor when it comes to oversight) instead of transferring ts duties to a new majority-civilian POST commission. The idea that police should be counted on to properly police themselves is not borne out by any evidence.
• Weaker Use of Force Standards: The POST commission would still maintain some approval authority over use of force standards (unlike Baker’s request), but the bill eliminates definitions for “imminent harm,” “necessary,” and “totality of circumstances” related to the use of force.
• Weaker Facial Surveillance Regulations: The bill also replaces the full ban on racist, dangerous facial surveillance technology with more modest regulations on it (Baker had wanted no regulations at all) and the creation of a commission to explore future regulations.
• Additional Changes: The bill also creates additional loopholes in the definition of “bias-free policing” and the regulation of no-knock warrants. Although presented as fixing technicalities, the new language could open the door to police abuse.

The dilution of the bill did not stop conservatives from both parties in the Senate from trying to weaken it further.

Because there was a roll call, you can see which Senators, including Democrats, voted for an amendment from Senator Minority Leader Bruce Tarr to weaken the bill by eliminating the civilian majority on the POST commission.

Final Passage – Round 2: December 23, 2020

Last night, the House voice-voted to accept the redrafted bill, leaving no record of the vote. But they did have a recorded vote on the enactment of the bill earlier today.

The weaker redraft passed the House 107-51.

The Democrats who voted NO earlier this month who voted YES after Baker made the Legislature weaken the bill were Cahill, Capano, Fiola, Haggerty, Kearney, Markey, Pignatelli, Scmid, and Zlotnik. They were joined by Republicans Jones, Poirier, Hunt, Orrall, Whelan, and Wong and the unaffiliated Whipps.