So You Want to Know What’s in the Police Reform Bill?

Earlier this evening, the Conference Committee working to harmonize the House and Senate police reform bills passed in the summer released their much-awaited final report: S.2963: An Act relative to justice, equity and accountability in law enforcement in the Commonwealth.

Shortest take: The bill creates a POST Commission with fewer voices for real police accountability than in the Senate bill, establishes a lot of new commissions that may not actually produce anything, creates new regulations on the use of force with various strength (stronger on facial surveillance on chokeholds, pretty loophole-ridden elsewhere), makes notable strides on juvenile justice (from expungement to school policing), bans racial profiling, and lacks meaningful reforms on qualified immunity. (A lot of ups and downs in that sentence.)

GOOD THINGS (SENATE BILL-ONLY) IN THE FINAL BILL:

• Expanded access to juvenile records expungement
• Stronger language around protecting students from profiling (with some unfortunate caveats, though)
• Making school resource officers (SROs) optional for school districts
• Ban on racial profiling

GOOD THINGS (SENATE BILL-ONLY) *NOT* IN THE BILL:

• Strong limitations on qualified immunity doctrine (The bill only limits QI in case of decertified officer, as in House bill, and creates a commission on QI.)
• Requirement of a democratic process around municipal acquisition of military equipment
• Investment of funds equivalent to savings on incarceration into workforce development and job training/opportunities
• Strong representation from civil rights groups and impacted communities on the police standards & training commission

GOOD THINGS (HOUSE-ONLY) IN THE BILL

• Language actually banning chokeholds (unlike the weak Senate language)
• Stronger language around no-knock warrants (although loopholes still abound)
• Facial surveillance technology ban (as opposed to just a moratorium) 

Okay, let’s dig deeper, section by section.

Section 1: Commissions —  Creation of Commissions on the Status of African Americans, Status of Latinos/Latinas, Status of those with disabilities, Status of Black men and boys (pp. 1-15)

Section 2: Public records — Elimination of personnel records from public records law exemption (page 15)

Section 3-25, 27: Police Training & Certification Committee (pp. 16-22): This section makes some minor text changes to existing law to reflect the new bill and sets some requirements for police training, such as…

• requirement of de-escalation training, promotion of “procedural justice,” alternatives to the use of force in interacting with minors
• requirement of training related to interacting with victims, witnesses, or suspects with mental illness, substance use disorder, trauma history, or developmental or intellectual disabilities
• requirement of de-escalation training with regard to protests
• requirement of cultural competency training
• training for school resource officers with regard to legal standards for police interaction with minors, child and adolescent cognitive development, trauma/behavioral addiction/mental illness/developmental disabilities, conflict resolution and diversion, and de-escalation. Also with regard to hate crime identification, anti-racism, and bullying. Requirement of consultation with experts on child and adolescent development and child trauma and with educators and 415attorneys experienced in juvenile and education law and preventing and addressing youth hate crimes in developing such training.

Unfortunately, however, the police training and certification committee consists entirely of law enforcement or their designees (See pp. 39-40 in Section 30).

Section 26: Facial/biometric surveillance (pp. 22-26): This section bans the use of facial recognition surveillance absent express authorization and provides language governing the role of the Registry of Motor Vehicles in facial surveillance. Section 105 (see below) creates a commission to explore that further.

Section 30 — Peace Officer Standards and Training Commission — Composition  (pp. 26-50)

In the conference bill, the Peace Officer Standards and Training (POST) Commission, i.e., the commission in charge of certification and decertification, would have 9 members (no more than 3 of whom would come from police officers).

Here’s how that breaks down:

• 3 of them would be appointed by the Governor
  • 1 police chief
  • 1 retired justice of the superior court
  • 1 social worker from a list of 5 nominations from NASW-MA
• 3 of them would be appointed by the AG
  • 1 law enforcement officer below the rank of sergeant
  • 1 law enforcement officer from a list of 5 nominations submitted by the Massachusetts Association of Minority Law Enforcement Officers (MAMLEO)
  • 1 attorney licensed to practice law in the commonwealth appointed from a list of 5 nominations submitted by the civil rights and social justice section council of the Massachusetts Bar Association
• 3 of whom shall be appointed jointly by the governor and AG (with 1 from a list of 5 nominations submitted by the Massachusetts commission against discrimination, no specifications on the other 2).

The bill includes House language requiring demographic representativeness (“…shall include people of color and women, at least in such proportion as these groups exist in the commonwealth’s population”) and geographical diversity (“The members of the commission shall represent diverse geographic areas of the commonwealth, including urban, rural and suburban areas.”

Like the Senate bill, the conference bill spells out some necessary expertise for the civilian members of the POST commission (“law enforcement practice and training, criminal law, civil rights law, the criminal justice system, mental health, post-traumatic stress disorder, crisis intervention, de-escalation techniques, or social science fields related to race or bias”).

The House POST Commission had less police representation than the Senate POST Commission (2 out of 7 vs. 7 out of 15), but it also had less guaranteed representation from those with a social justice or civil rights orientation (0 out of 7 vs. 8 out of 15). The composition here is somewhere in between: police representation (3 out of 9) falls in the middle of the Senate and House bill, as does the representation for those with a social justice or civil rights orientation (again, 3 out of 9). Unfortunately, there’s a real loss with the exclusion of the NAACP, ACLU, and Lawyers for Civil Rights–as well as those directly impacted–who had seats in the Senate bill but not the House. 

The Senate POST Commission, although having more police presence, would have had a likely progressive majority (4 civil rights, 2 directly impacted, 2 from the Black and Latino Caucus); the POST Commission here does not.

Section 30 — POST Commission —  suspension & revocation (pp. 51-57) The division of police standards is able to begin a preliminary inquiry if there is a report, complaint, or other credible evidence of officer misconduct and must give notice within 30 days. The division is also responsible for keeping a database of such complaints as well as any discipline or decertification that results. So what’s next? The POST Commission can suspend an officer in these cases (with the officer having the right to a hearing within 15 days)

• Immediately suspend the certification of any officer who is arrested, charged or indicted for a felony
• Can (post-inquiry) before a charge initiate proceedings if conduct consists a felony if preponderance of the evidence
• Can (post-inquiry) suspend the certification of any officer who is arrested, charged or indicted for a misdemeanor, if the commission determines by a preponderance of the evidence that the crime affects the fitness of the officer to serve as a law enforcement officer
• Can (post-inquiry) suspend the certification of any officer if  the commission determines by a preponderance of the evidence that the suspension is in the best interest of the health, safety or welfare of the public
• Administratively suspend officers who fail to comply with training and reporting requirements

Revocation of license requires “clear and convincing evidence” — reasons to revoke (p. 52-54 / note “shall” use vs. “may” use for outlined reasons). Note requirements for record-keeping on decertified officers (p. 57) and requirements that decertified officers not be hired even if on contract basis (p. 57). So what’s the difference between “clear and convincing” and “preponderance.” The “preponderance of the evidence” means that something is more likely to be true than not true. “Clear and convincing” sets a higher standard–say, two to four times more likely to be true than not true given the evidence.

Section 30 — Regulations on the Use of force (S1414, p. 58 – 59): The chokehold ban is the clearest of these regulations. Given the conditional clauses in the others, it’s unclear how much of a “ban” they will be in practice.

• No use of physical force unless de-escalation used or not feasible & such force is necessary to effect lawful arrest, prevent escape from custody, or prevent imminent harm
• No deadly force unless de-escalation used or not feasible & force is necessary to prevent imminent harm & the force is proportionate to the degree of imminent harm
• Chokehold ban — Note that Section 30 includes the House’s definition of a chokehold (intent or result of “bodily injury, unconsciousness, or death”) as opposed to the narrower Senate version (definition on page 27).
• Ban on firing at a fleeing vehicle unless imminent harm and proportionate to that imminent harm. 
• Requirement of de-escalation for protests. Ban on tear gas, rubber bullets, or attack dogs unless (i) de-escalation tried & failed or not feasible, (ii) imminent harm and proportionate to that imminent harm. Reporting requirements for such uses of force.

Section 30 — Duty to intervene (S15, p. 59): “An officer present and observing another officer using physical force, including deadly force, beyond that which is necessary or objectively reasonable based on the totality of the circumstances, shall intervene to prevent the use of unreasonable force unless intervening would result in imminent harm to the officer or another identifiable individual.”

Section 37. Language around Qualified Immunity (pp. 64-65)

• The bill drops Senate language on reforming qualified immunity and reforming the Massachusetts Civil Rights Act. Under the Massachusetts Civil Rights Act, you can sue if an officer violates your rights by means of “threats, intimidation, or coercion.” But here’s the catch: if someone says, “I’ll punch you,” that counts as a threat, intimidation, or coercion. When they punch you, it doesn’t — the threat merely refers to the intent, not the act. So the act of assault falls outside of scope. The Senate language would have reformed this and provided meaningful limitations on qualified immunity so that victims of police brutality can get their fair day in court.
• Instead, the bill here contains House language saying that qualified immunity only no longer applies when an officer has been decertified or violates someone’s rights by “threats, intimidation, or coercion” (which, as noted above, courts never find to be the case).

Section 78 – – Protecting Students from Profiling (pp. 82-83): This section would protect students from having school officials wrongfully entering them into a gang database and risking their deportation or otherwise criminalization.

• As in the Senate bill, the language applies to SROs as well as school personnel and contains the Senate’s expanded list of agencies to which information should not be provided.
• It does, however, drop a few types of information deemed not to be provided in the Senate bill:” (ix) participation in school activities, extracurricular activities outside of school, sports teams or school clubs or organizations; (x) degrees, honors or awards; and (xi) post-high school plans.” Juvenile justice reform advocates are concerned that this information could be used as a proxy for immigration status. And it allows for the transmission of information about gang involvement if deemed “germane” to a “specific unlawful event/activity” that the school is required to report, a possibly large loophole.
• And it allows for “the sharing of information upon the specific, informed written consent of the eligible student, parent or guardian, to comply with a court order or lawfully issued subpoena, in connection with a health or safety emergency pursuant to the provisions of 603 C.M.R. 23.07(4).” Note that this language could provide opportunities for coerced testimony given the power imbalance that exists.
• But overall it’s an improvement.

Section 79 — Creation of a model school resource officer memorandum of understanding review commission & other regulations on SROs (pp. 87-90)

• Note that this includes the language that SROs are hired “at request of” as opposed to “in consultation with” superintendents. Currently, schools are required to have police officers. By changing the language from “in consultation with the superintendent/district” (current law and the House bill) to “at request of” the superintendent or district, it creates space to not make that request. But, unlike in the Senate bill, the power lies with the superintendent and not with a democratic vote of the School Committee.

Section 83 — Ban on racial profiling (p. 91-92): This section adds language to the hands-free driving bill passed last year to ban racial profiling by police and to enable the Attorney General to bring forth civil suits to enforce this. One concern from racial justice advocates was that the law banning texting while driving could lead to an increase in racially motivated traffic stops.

Section 92 — Ban on officers having sex with individuals in custody (pp. 94-97): This section specifies that it is not possible for someone in custody to consent (I mean duh…how was this not law yet?). Note that Section 91 contains House language creating mandatory minimums for “indecent assault on battery” on individuals in custody, with this broken into categories for individuals 14 or over, elders / people with disabilities, individuals with intellectual disabilities, and children under 14.

Section 94 — No-knock warrants (pp. 97-98)

• Under this section, an officer must submit an affidavit that establishes (a) probable cause that if the law enforcement officer announces their presence their life or the lives of others will be endangered and (b) no reason to believe that minor children or adults over the age of 65 are in the home. Note that (b) comes form the House bill.
• However, officers can evade this requirement if ” to prevent a credible risk of imminent harm” — a potentially wide loophole.
• Evidence obtained in violation of this would be rightfully inadmissible in court.

Sections 95-98 — Expanded access to juvenile records expungement (pp. 98-100) The final bill expands eligibility to no more than two convictions or adjudications and not more than two non-convictions/non-adjudications (juvenile justice reform advocates had wanted no limitation), but it does allow for multiple charges from one incident to count as one charge. It maintains the existing list of ineligible offenses, but it does apply retroactively (including for petitions that would have previously been ineligible but now wouldn’t be).

Section 103 — Commission on State & County Correctional Officers and Juvenile Detention Officers  (pp. 103-105): The scope of the commission would relate to regulating use of force, access to records, and suspension/revocation. The commission would consist of the following:

• • a former judge appointed by the chief justice of the supreme judicial court who shall serve as chair
  • the commissioner of correction or a designee
  • 1 correctional officer who shall be appointed by the New England Police Benevolent Association, Inc.;
  • the president of the Massachusetts Sheriffs Association, Inc. or a designee
  • the commissioner of the department of youth services or a designee
  • 1 correction officer who shall be appointed by the president of the Massachusetts Correction Officers Federated Union;
  • 1member appointed by American Federation of State, County and Municipal Employees Council who shall be an employee of the department of youth services and who shall have not less than 5 years of experience working in a department of youth services secure facility;
  • the executive director of Citizens for Juvenile Justice, Inc. or a designee
  • the executive director of Prisoners’ Legal Services or a  designee
  • the president of the Boston branch of the National Association for the Advancement of Colored People New England Area Conference or a designee
  • the executive director of Lawyers for Civil Rights, Inc. or a designee
  • the president of the Massachusetts Bar Association or a designee
  • 2 members appointed by the Massachusetts Black and Latino legislative caucus who shall not be members of the caucus;
  • 2 members appointed by the Massachusetts House Asian Caucus who shall not be members of the caucus;
  • the executive director of the American Civil Liberties Union of Massachusetts, Inc. or a designee;
  • 2 members who shall be appointed by the governor, 1 of whom shall be a member of the LGBTQ community and 1 of whom shall be a formerly-incarcerated woman

Section 104 – Body Cameras  (pp. 105 – 109): This section creates a 25-member task force to promote regulations for uniform use of body cameras, with the regulations due July 31, 2022. Of the task force, 11 out of 25 represent cops, sheriffs, and DAs. 8 of them represent civil rights. Here is the breakdown:

• • the secretary of public safety and security or a designee
  • the secretary of technology services and security or a designee
  • the attorney general or a designee
  • a member appointed by the committee for public counsel services
  • a district court judge appointed by the chief justice of the supreme judicial court
  • 2 members appointed by the Massachusetts Black and Latino legislative caucus who shall have expertise in constitutional or civil rights law
  • 1 member appointed by the chair of the Massachusetts Minority Law Enforcement Officers Association
  • 1 member appointed by the chair of the Massachusetts Minority State Police Officers Association, Inc.
  • 1 member appointed by the chair of the Massachusetts Latino Police Officers Association, Inc.
  • 1 member appointed by the chair of the Massachusetts Association of Women in Law Enforcement, Inc.
  • 2 members appointed by the Massachusetts House Asian Caucus who shall have expertise in constitutional or civil rights law
  • the president of the Massachusetts Sheriffs’ Association or a designee
  • 1 member appointed by the Massachusetts Coalition of Police, Inc.
  • the colonel of state police or a designee
  • the president of the Massachusetts District Attorneys Association or a designee
  • the executive director of the American Civil Liberties Union of Massachusetts, Inc. or a designee
  • the president of the Boston branch of the National Association for the Advancement of Colored People New England Area Conference or a designee
  • the president of the Massachusetts Defense Lawyers Association, Inc., or a designee
  • 5 members appointed by the governor, 1 of whom shall be a police chief in a municipality with a body camera pilot program and a population of not fewer than 100,000 people, 1 of whom shall be a police chief in a municipality with a body camera pilot program and a population of not more than 50,000 people, 1 of whom shall be an expert on constitutional or privacy law who is employed by a law school in the commonwealth, 1 of whom shall be an elected official in a municipality with a body camera pilot program and 1 of whom shall be a representative of a law enforcement labor organization.

Section 105 – Commission on use of facial recognition in the Department of Transportation (pp. 109-111)

Section 106 — Commission on emergency hospitalizations (pp. 111-113)

Section 107 — Commission on civil service law reform (pp. 113-116)

Section 108 — Commission on a statewide cadet program (pp. 116-118)

Section 110 — Commission on structural racism in correctional facilities (pp. 118-120)

Section 111 — Commission on structural racism in parole process (pp. 120-121)

Section 112 — Commission on structural racism in probation service (pp. 121-122)

Section 116 — Commission on impact of qualified immunity doctrine (pp. 124-125)

The commission here consists of 15 members:

• 2 of whom shall be the chairs of the joint committee on the judiciary or their designees, who shall serve as co-chairs;
• 2 of whom shall be members of the house of representatives appointed by the speaker of the house
• 1 of whom shall be a member of the house of representatives appointed by the minority leader
• 2 of whom shall be members of the senate appointed by the president of the senate 1 of whom shall be a member of the senate appointed by the minority leader
• 3 of whom shall be appointed by the gov — 1 of whom shall be a member of a police officers’ union, 1 of whom shall be a member of a firefighters’ union, and 1 of whom shall be a retired justice of the appeals court
• 1 of whom shall be the executive director of the American Civil Liberties Union of Massachusetts, Inc. or a designee
• 1 of whom shall be the president of the Massachusetts Bar Association or a designee
• 1 of whom shall be the executive director of the Massachusetts Municipal Association, Inc. or a designee
• 1 of whom shall the president of the Boston branch of the National Association for the Advancement of Colored People New England Area Conference or a designee

Based on what we know of these people, what should we expect? There are 5 members we can expect support reform to qualified immunity: the Senate judiciary chair, the 2 designees of the Senate President, the designee of the ACLU, and the Greater Boston NAACP president (or her designee). I am not sure where the Bar or Mass Municipal stands. One should expect that the other 8 members would all be opposed to meaningful reform, making the commission less than useless. Its report (if it happens) is due next September.

Section 117 — Study requirement for the Community Policing and Behavioral Health Advisory Council on a crisis response and continuity of care system to deliver alternative emergency service (pp. 125-127)