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.
What’s Next?
There’s just over a week left in the session, and the House and Senate will have to come up with consensus language. Make sure your legislators hear from you that you want the strongest bill possible.
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