Police reform milestones and missed opportunities
Many issues are shunted off to commissions, committees
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IT’S BEEN SIX MONTHS since members of the Black and Latino Legislative Caucus hung their heads in silence over the death of George Floyd, the unarmed black man killed beneath the knee of a Minneapolis police officer.
The moment spurred nationwide calls for specific and targeted police reform, including on Beacon Hill. Those calls were heard on Tuesday as both the House and Senate passed a compromise police reform bill heralded by many top legislators, including members of the caucus, as groundbreaking. The House voted to pass the measure 92-67, and the Senate 28-12.
The establishment of a civilian-led Peace Officer Standards and Training (POST) commission — which would establish standards for police, investigate misconduct claims, and decertify officers found in violation — is a significant change in policy. The legislation goes beyond the caucus’s initial plan, modeled after a bill from Rep. Russell Holmes of Boston, who proposed the creation of a commission to study and make recommendations around a POST system. The legislation skips the study phase and moves to the action phase immediately,
Members of groups like the Greater Boston Interfaith Organization call the bill a “leap toward justice.”
“Having an independent and community-inclusive POST commission, one that has real subpoena power, will be a national first,” said Beverly Williams, co-chair of the interfaith organization. Georgia and Minnesota, among several other states, have POSTs and regularly decertify officers. Massachusetts is one of only five states with no statewide mechanism to do so.
The four-month-long negotiations of the legislative conference committee did not come without compromises.
“This legislation is not without controversy, which is true of all meaningful reform. When there is controversy, it takes courage to take a vote like this,” said Rep. Claire Cronin of Easton during the vote, likening it to the process of passing the Voting Rights Act.
There is no doubt that the letters, calls, and pleas from police unions, the public; and civil rights advocates had influence, some carrying more weight than others on specific topics.
For instance, qualified immunity, the legal tenet that protects police from civil lawsuits, was one of those issues where police unions won over the conference committee. In the end, the group moved away from Senate language that would have reformed the Massachusetts Civil Rights Act to limit qualified immunity for all public employees, and broadened the ability of the public to sue police officers for alleged brutality. Instead, the bill contains House language that would only limit qualified immunity in the event an officer has already been decertified by the POST committee.
The compromise bill also more broadly hands over responsibility for the issue to a special legislative commission to “investigate and study” the impact of limiting qualified immunity for police. The commission is required to report back with its findings and any proposed legislation by the end of September 2021.
The 15-member commission is unlikely to reach consensus. It would contain five members that would very likely support recommending limitations on qualified immunity, including members from the American Civil Liberties Union of Massachusetts, the NAACP, Senate Judiciary Chairman Jamie Eldridge of Acton, and potentially the two other designees of Senate President Karen Spilka.
Considering the House’s more cautious approach on the issue, it’s unlikely DeLeo’s two appointed members would support significant changes. Many of the other members, including appointees of the House and Senate minority leaders and police and firefighter union members, are also likely to be wary of change. The stances of the other members, including gubernatorial appointees, a former justice of the appeals court, and representatives of the Bar Association and Massachusetts Municipal Association, are unclear.
The police reform bill refers many of its initiatives to committees and commissions. The word “commission” is used 449 times in the bill, and “committee” in 132 instances. At least 17 such groups would be created under the bill. Many actual decisions will be left up to the bodies created by the legislation. For example, the Special Commission on Structural Racism in Probation Services will make legislative recommendations to eliminate any disparities in the treatment of person of color found in their investigation of the parole process.
There are spots where police influence will be overwhelming, as with the police training and certification committee, which would be composed entirely of law enforcement officials or their designees. Language from the previous Senate bill that would have filled some committee seats with civil rights activists was removed.
The group will create a curriculum for police schools encompassing training in anti-racism and cultural competency, sexual and domestic abuse, hate crimes, conflict de-escalation tactics, proper interactions between school resource officers and youth.
Many types of data collection were removed from the final bill. “The Senate bill included a really innovative effort to collect information about basically every police interaction,” said Evan Horowitz of the Center for State Policy Analysis at Tufts University.
If a person is pulled over by a police officer and ticketed, there is a record of that interaction. But many other interactions with police that don’t result in a ticket are not reported. The Senate bill, Horowitz said, would have created a universal receipt system for all of these interactions, including the warnings. It didn’t make it into the conference bill.
“Without a record of that, there’s no way to really assess how many of these police interactions might be biased or if more black people in Massachusetts are being stopped or approached more frequently than white residents,” he said. “There’s a lot of anti-bias work in this bill, but very little anti-racism work.”
Still, Horowitz said, the reporting of decertification data is “significant,” and data collection overall would be “improved dramatically.”
Horowitz also raised concerns that many posts on committees and commissions, like those focused on race and disability, are unpaid. “The fact that a lot of these committees will be made up of uncompensated people is, I think, a sign of the lack of urgency and importance that is assigned to them in some cases,” he said.
The legislation, which bans chokeholds and limits the use of deadly force, also establishes a duty to intervene in the event a police officer sees a colleague using unnecessary deadly force.
Cohn thinks the regulations could be stronger, and says the bill includes too many conditions that give police officers leeway if alternatives to the use of force aren’t feasible or pose imminent harm to officers. “The problem is that we have seen officers adopt extremely limited views of feasibility, and expansive ones of imminent harm,” he said. “If you have loopholes, they will be used.”
During House debate on Tuesday, Republican Rep. Tim Whelan of Brewster, one of the members of the conference committee, called the ban of chokeholds the work of “outside interests.” Whelan called chokeholds “a less lethal scenario than firing my gun, but if I put a person in a chokehold, there’s no exceptions for deadly force, and I’d be decertified.”
Whelan also noted that Democratic Attorney General Maura Healey has expressed concerns over new limits on no-knock warrants contained in the bill. Healey’s office confirmed the provisions on no-knock warrants concern her.
The provisions were included via an amendment filed by Rep. Liz Miranda that would allow no-knock warrants only in cases where police have no reason to believe children or those over 65 are in the home where the warrant is being executed. Miranda in June argued the ban would save lives and called such warrants an “oppressive tactic.”
One major provision in the Senate bill – limitations on the purchase of military-style equipment by police forces – was dropped from the final measure.
“This was a major flashpoint and issue during the protests in the spring and summer. So as a headline issue, it’s a little surprising not to see it in the final bill,” said Horowitz. The bill instead requires departments to report their use of such equipment.
In June, it was reported that the Boston Police Department spent more than $200,000 on such equipment in the first few months of the year, and more was bought as the protests over George Floyd’s death continued into the summer.
The POST board remains the crux of the bill, and its importance has been highlighted recently as district attorneys have struggled to meet court mandates requiring them to disclose to defense attorneys the names of police officers with backgrounds that could taint their testimony.
Suffolk County District Attorney Rachael Rollins in September released a prosecutorial watch list with the names of 136 law enforcement officials. The officers, who had been indicted or charged on federal offenses or accused of misconduct, were culled from news stories and other sources. If the police reform bill passes, there will be standards covering police conduct and disciplinary actions will be disclosed publicly.The bill that passed the House and Senate on Tuesday has a lot of what Republican Gov. Charlie Baker initially wanted in his own legislation– a POST board that focuses on decertification with community input, de-escalation training, and representation of people of color in decision-making. It seems likely he will sign the bill into law, or send it back to the Legislature with only minor amendments.
At a State House press conference, Baker said his administration was still reading the 129-page bill and he would have no comment on how he will deal with it. He did indicate, however, that he welcomed the bill’s arrival on his desk. “This is an issue that’s important to us,” he said.