Ex-prosecutors flag issues in House policing bill

ON SUNDAY NIGHT, the Massachusetts House Ways and Means Committee released a wide-ranging, 127-page bill that would make “emergency” changes to policing in the Commonwealth. The House bill, which will be the subject of a floor debate Wednesday and a vote on Thursday, followed a similar bill passed by the Senate last week. Both chambers should be applauded for seizing upon this unique moment to pursue long overdue changes to how our state certifies, monitors, and trains law enforcement officials. But while the bills’ new limitations on qualified immunity for police officers have grabbed most of the headlines, the proposed legislation contains other provisions that could have significant implications for the state’s citizens.

Take, for example, the House’s proposal for the creation of a new Massachusetts Police Standards and Training Commission. Massachusetts is one of the few states in the country without a statewide authority that can decertify police officers, and the House’s bill would remedy that shortcoming.

But the House bill’s language creates uncertainty as to who would qualify to fill the commission’s seven seats. The bill states that two commissioners will be appointed by the governor, two by the attorney general, and three will be appointed jointly. Of the joint appointees, one must be the chair of the Massachusetts Law Enforcement Policy Group, and one must be chosen from a list of three names submitted by the Massachusetts Coalition of Police, the state’s largest police union. Otherwise, the bill prohibits the appointment of anyone who currently serves or previously served as a “law enforcement officer.” The statutory definition of “law enforcement officer” appears to include all police officers, but it is unclear whether it includes prosecutors. The definition also appears to be limited to those who worked in Massachusetts “law enforcement,” but not for the federal government (the FBI, ICE, or DHS, for example) or agencies in other states.

It would be strange to categorically foreclose Massachusetts police officers from serving on five of the seven seats of a commission authorized to train, certify, and punish police officers, especially if police officers from other states or the federal government were allowed. And it would be even more questionable to exclude all former prosecutors, many of who—like us—have spent large portions of their careers investigating and prosecuting public corruption and police misconduct.

The issue of who can serve as a commissioner is particularly important due to the robust investigative powers that the commission would possess under the current bill. The commission would have the ability to demand personnel records from every law enforcement agency in the state, and to refer cases for local, state, or federal prosecution at any time during its investigations. This latter power stands in notable contrast to the Office of Campaign & Political Finance, which is authorized only to provide evidence to the attorney general after notice to the subject and a hearing during which the subject can state his or her case.

The sound judgment of the commissioners will be critical in doling out fair justice under the current language of the House bill, because the bill grants the commission wide discretion to punish police officers. The commission could, for example, suspend an officer’s certification when it simply “determines that the suspension is in the best interest of the health, safety, and welfare of the public.” Similarly, the bill requires the commission to revoke an officer’s certification if it finds by “clear and convincing evidence” that the officer “is not fit for duty as an officer . . . as determined by the commission.” The bill provides no framework for determining the public’s “best interest” or what “fit for duty” entails.

The bill also contains other consequential provisions that need proper vetting, input, and buy-in from the constituencies that will be most affected. Public schools and the families they serve could be significantly impacted, for example, by the prohibition against the disclosure by schools of “any information” about students—including, but not limited to, suspected gang affiliations—to law enforcement agencies, except where reporting is otherwise mandated based on suspected abuse.

The Legislature’s reticence to share student information with law enforcement is more than understandable, especially in the context of immigration enforcement. But banning schools from providing information about students to the police could affect student safety and impede legitimate investigations of serious criminal activity, including situations where a student is a witness or victim.

These issues, and many others relating to this wide-ranging legislation, hopefully will be the subject of vigorous debate and meaningful community input between now and the end of the legislative session on July 31. The Legislature would do well by its citizens if it carefully considers the implications of all of the bills’ provisions, including those that are less likely to garner the public’s attention between now and the end of July.

Simon Cataldo and Kim West are partners at the Ashcroft Law Firm in Boston. Cataldo is a former federal prosecutor in the US Department of Justice’s Public Integrity Section. He prosecuted former Arizona Sheriff Joseph Arpaio, who was convicted at trial of criminal contempt before being pardoned by President Trump. West is a former chief of the criminal bureau at the Massachusetts attorney general’s office. As chief, she oversaw the investigation and prosecution of the State Police overtime cases.