Police reform: Big momentum, little time

Five key areas where House, Senate differ

WITH THE END OF the legislative session fast approaching, the House and Senate are trying to hammer out a bill dealing with police reform. In the wake of George Floyd’s death in Minneapolis, there is tremendous momentum to pass a bill, but significant differences are emerging between the two branches.

The Senate passed its bill last week and the House is scheduled to take up its version on Wednesday. Both measures share common ground. They require fellow officers to intervene in situations of excessive force. They ban chokeholds, the use of tear gas, and most no-knock warrants. The latter became a spotlight issue following the shooting death of Breonna Taylor, a woman who died when Louisville, Kentucky, police executed a no-knock warrant at the wrong address, killing her in her own home.   

The two branches also appear to be in general agreement on eliminating the municipal police training committee – a little-known entity within the Executive Office of Public Safety and Security – and replacing it with a new Massachusetts Police Standards and Training Commission with the power to investigate misconduct claims against police officers and decertify those officers found to violate standards. The decisions of the commission would be open to the public and shared with a national database of decertified police officers.

The House and Senate are not totally on the same page with regard to the commission. They differ on who would serve on the commission and the House bill would require that complaints about police misconduct not include a nondisclosure or non-disparagement agreement unless the complainant requests that provision. That would mean that police officers couldn’t ask their accusers to avoid speaking publicly about their conflicts if settlements are reached.

Pressure to pass a police reform bill is so strong that some members are looking to tack more tangential issues on via amendments. Rep. Russell Holmes of Boston said the Black and Latino Legislative Caucus intends to ask Gov. Charlie Baker on Tuesday if he would veto measures requiring the expungement of juvenile records and allowing undocumented immigrants to obtain have driver’s licenses.

Senate President Karen Spilka and Sens. Sonia Chang-Díaz of Jamaica Plain and William Brownsberger of Belmont issued a joint statement Monday minimizing the differences between the two branches. “Massachusetts has a historic opportunity to lead on this issue, and we must keep pushing to meet this moment,” they said. “We look forward to working towards a final, stronger version of this bill that combines the best of both to put more power in the hands of civilians, shift resources to the communities most impacted by overpolicing, and build a more equitable and just future. 

Here are the key sticking points between the two branches:

Qualified immunity 

The House and Senate bills take different approaches to qualified immunity, a controversial legal tenet that shields police officers from civil lawsuits in cases of misconduct.

The House bill, as currently drafted, would place no limit on when qualified immunity applies, unless the officer involved has been decertified by the proposed police standards and training commission. “No law enforcement officer shall be immune from civil liability for any conduct under color of law if said conduct results in decertification by the Massachusetts police standards and training commission,” the House bill reads.

The Senate bill, meanwhile, would severely limit qualified immunity from all public employees – not just police officers. In testimony filed with the House Ways and Means Committee, many law enforcement and public agency officials called the Senate language too broad and said it would open up public servants to what many, including what Boston Sen. Nick Collins called “frivolous lawsuits.”

Attorney general involvement 

District attorneys currently investigate police misconduct, either directly, by appointing a special prosecutor, or by referring the case to another district attorney who doesn’t work with the local police department. The House and Senate bills would not immediately strip district attorneys of their authority to investigate police misconduct, but they would set in motion a process that could shift that role to a new division within the Police Standards and Training Commission.

The House bill delves into this issue at some length, requiring Attorney General Maura Healey to be a member of the commission, which would then decide if the status quo continues, if investigations of police misconduct should be handed off directly to her office, or to a new division of the commission staffed with an assistant attorney general.

The division shall enforce criminal offenses committed by officers which shall include, but not be limited to: investigating and prosecuting allegations of criminal offenses committed by officers; investigating and prosecuting any and all instances arising from the actions of an officer resulting in the death or serious bodily injury of another,” reads the bill.  

The list goes on to include taking recommendations of officers who should be criminally prosecuted from the commission or any other law enforcement body, and providing recommendations to the commission on whether any officer should have his or her certification revoked. Healey’s office would work hand in hand with the newly created police standards commission, something that is unprecedented.  

School resource officers

Current state law is ambiguous about whether schools are required to have resource officers, which act as law enforcement and are often part of or liaisons to local police departments. The Senate bill makes it clear that districts would get to make that decision. The House bill, by contrast, requires all districts to have resource officers and would assign state troopers to districts without adequate funding to hire resource officers.

Both bills restrict what information school resource officers can share with law enforcement, an issue brought to light in the past few years after Boston Public School officials shared information about undocumented immigrant students presumed to be affiliated with gangs. That information ended up in the hands of federal immigration authorities and led to the deportation of those students.  

The bills in both branches would restrict information sharing about immigration status, ethnicity, residence, and suspected gang affiliations unless related to a specific incident. School resource officers would have to take on new certification and training requirements, and the bill would create a new commission to assess the role of school resource officers in the lives of students. 

Schools will continue to be allowed to file weapons reports with local police, but some lawmakers and conservative groups expressed concerns in testimony that school districts without resource officers would no longer be sharing potentially useful information with local law enforcement. 

The Federation for American Immigration Reform, a nonprofit that seeks to limit immigration to the US, objected to restricting information to law enforcement officers. “Schools are already generally considered sensitive locations,” wrote Shari Rendall, director of state and local engagement for the nonprofit, in testimony submitted to the House. “As a sensitive location, law enforcement officers already usually refrain from enforcement actions unless there is an extraordinary circumstance involving public safety, but they need to retain discretion to act in such extraordinary circumstances.” 

Facial recognition technology and surveillance 

The House bill limits the use of facial recognition technology and biometric surveillance by public agencies. The one outlier is the Registry of Motor Vehicles, which require a warrant for law enforcement to have the agency conduct a facial recognition search in its database. The RMV itself would still be allowed to continue to collect the data.  

The Senate bill has an 18-month moratorium on all facial surveillance use except for the RMV, but didn’t outright ban it indefinitely.  

The RMV’s usage of the technology is common, and was also highlighted in a recent Boston ban on the technology. The House bill calls for transparency from the Registry on who gets what information, and includes a requirement that the entity annually publish the number of facial recognition searches performed at the request of law enforcement agencies, the number of searches conducted pursuant of a warrant, emergency searches conducted, and other data.  

Additionally, a special commission would be established to study the use of face recognition technology by the Massachusetts Department of Transportation.

Civil Service Commission 

The House bill establishes a special legislative commission to study and examine the civil service law and rules covering personnel administration, an area not addressed in the Senate bill.

The commission would assess hiring procedures and bylaws for municipalities not subject to the civil service law, and State Police hiring practices in an effort to improve diversity.  

The 25-member body would include gubernatorial appointees, members of police, correctional officers, and firefighters officers’ unions, legislators, someone from the American Civil Liberties Union of Massachusetts, Tanisha Sullivan, president of the Boston branch of the NAACP and Springfield Rep. Carlos Gonzalez, who heads the Black and Latino Legislative Caucus.  

The group would “study the employment, promotion, performance evaluation and disciplinary procedures for civil service employees,” and review recruitment processes, promotion protocol, collective bargaining agreements with unions, and identifying barriers that exist in hiring and promotion practices. The commission would assess whether it’s feasible to appoint or hire a diversity officer for every municipality with a police and fire department.  

The commission would submit a report and recommendations to top Beacon Hill leaders by the end of this year.