Baker signs landmark policing reform law

By Colin A. Young

DEC. 31, 2020…..As the year and legislative session come to a close, Gov. Charlie Baker on Thursday signed into law legislation creating a police accountability and oversight system under which officers need to be certified every three years and can lose their certification for violating to-be-developed policing standards.

As the country reacted to the killings of George Floyd and Breonna Taylor at the hands of police officers this summer, policing reform was catapulted to the top of Beacon Hill’s priority list and lawmakers set out on what would become a complicated, circuitous and, at times, controversial path to address police violence and some of the disproportionate impacts communities of color experience from law enforcement, and to bolster the state’s oversight of police officers.

Seven months later, after heated debates, public outcry from police unions, back-room negotiations, a veto threat, and more negotiations, Baker made the reforms state law.

“This bill is the product of bipartisan cooperation and thanks to the Black and Latino Caucus’ leadership on the hugely important issue of law enforcement accountability, Massachusetts will have one of the best laws in the nation,” Baker said. “Police officers have enormously difficult jobs and we are grateful they put their lives on the line every time they go to work. Thanks to final negotiations on this bill, police officers will have a system they can trust and our communities will be safer for it.”

At the heart of the new law is the creation of the Massachusetts Peace Officer Standards and Training Commission as an independent state entity with the power to establish policing standards, certify law enforcement officers, investigate allegations of misconduct, and suspend or revoke the certification of officers who are found by clear and convincing evidence to have violated its standards.

The duties of the state’s existing municipal police training committee will remain under the administration’s Executive Office of Public Safety and Security, the result of a compromise intended to ensure the governor would sign the bill.

The so-called POST Commission will be composed mostly of civilians — the governor will appoint a police chief, a retired Superior Court judge and a social worker chosen from a list of five nominations submitted by the local chapter of the National Association of Social Workers; the attorney general will appoint a law enforcement officer below the rank of sergeant, a law enforcement officer chosen from five nominations by the Massachusetts Association of Minority Law Enforcement Officers, and an attorney selected from five nominations from the Civil Rights and Social Justice Section Council of the Massachusetts Bar Association; and the governor and attorney general will jointly appoint three others, one of whom must be chosen from five names recommended by the Massachusetts Commission Against Discrimination.

“There’s no other supervisory board in the country like this one with the extent of power that it has to monitor, to directly discipline and to hear complaints directly,” Sen. Will Brownsberger, a Belmont Democrat who negotiated the compromise version, said in late November. “It’s a majority civilian board. Almost all of the rest of the boards in the country are all law enforcement, so this is a very, very strong innovation.”

The Massachusetts Coalition of Police, which represents 4,300 uniformed law enforcement officers in the state, opposed much of the bill and said that Baker signing it would represent him “changing the police profession in Massachusetts forever.” MassCOP said, “a lack of proper examination and study into a number of crucial portions of this bill will result in collateral damage that will have a negative impact on many of our communities.”

The law puts some guardrails around law enforcement’s use of force, prohibiting the use of chokeholds, requiring the use of de-escalation tactics before physical force, and establishing limits on the use of rubber bullets, tear gas and dogs. It also requires that an officer intervene in most situations if he or she sees another officer using unnecessary physical force and to report that use of force up the chain of command.

It also explicitly bans law enforcement agencies from engaging in racial profiling and restricts the use of no-knock warrants by requiring that they be issued by a judge only if the requesting affidavit includes probable cause that the life of the officer or the life of another person would be endangered if the officer announced themselves and includes an attestation from the requesting officer that there is no reason to believe minor children or adults older than 65 are present in the home.

“This is a landmark decision that begins to address the inequities that we have seen in our police institutions for a long time,” Rep. Carlos Gonzalez, who chairs the Black and Latino Legislative Caucus and was one of the six conference committee members who negotiated the final product, said. “Like everybody has said, one bill is not going to address every issue, but we are confident that this bill starts to begin the process of holding police accountable in a transparent way and having an independent body investigate police misconduct when and if it occurs.”

When lawmakers initially sent the bill to Baker, it called for a ban on almost all law enforcement use of facial recognition systems, only allowing police to ask the Registry of Motor Vehicles to perform a search with a warrant or if there is “an emergency involving immediate danger of death or serious physical injury.”

The governor threatened a veto over concerns about that prohibition and other aspects of the legislative compromise, and lawmakers soon scaled back the facial recognition prohibition to allow police to perform facial recognition searches to assist with criminal cases or to mitigate “substantial risk of harm” after submitting a written request to the RMV, Massachusetts State Police, or the Federal Bureau of Investigation.

A legislative commission, including members from both civil rights groups and police agencies, will also study the topic of facial recognition and make recommendations for additional regulations by the end of 2021.

The new law also includes provisions Baker outlined about a year ago when he proposed a series of reforms around the State Police, including the authority for a governor to appoint someone from outside the MSP ranks as colonel of the force and the creation of a cadet program as an alternate route to the State Police Academy that the administration believes can diversify the pool of recruits.

Though not specific to the State Police, it also establishes a fine of three times the fraudulently-earned wages or imprisonment of up to two years for any law enforcement officer who knowingly submits a fraudulent timesheet. Nearly 50 active or retired troopers who patrolled the Massachusetts Turnpike as part of the since-dissolved Troop E were implicated in an overtime fraud scheme in which they collected pay for shifts they did not work or did not finish roughly from 2015 to 2017.

Ahead of the Senate’s final vote on the package, Sen. Sonia Chang-Diaz said that there were “a lot of mixed emotions” about the package and suggested that some matters not resolved could return for more discussion in the 2021-2022 legislative session that begins next week.

“There is a lot of mourning that I and others are doing for the things not included in this bill,” she said. “But at the end of the day, when I zoom out and I look at what this bill accomplishes relative to what anyone would have expected twelve months ago or six months ago or even six days ago, there is a ton in this bill that is really going to set a new standard for the national policy landscape on police accountability that could potentially ripple through the other forty-nine states.”

On Thursday, after Baker signed the bill into law, Chang-Diaz said, “This law represents a mile-marker, not an end.”