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By Carol Rose

A day that began with a historic victory for voting rights in Georgia and the nation ended with an assault on our democracy. The attempted coup on the Capitol, at the urging of Donald Trump, has led to widespread calls for his removal as an imminent threat to our constitutional order.

However that plays out next week, this much is clear: the Biden administration and Congress must take immediate, concrete steps to ensure that future would-be tyrants and their cronies are not permitted to seize power by unconstitutional means. They must also ensure that we know the whole truth about what happened on January 6, and that those responsible—from civilians to the president himself—are held to account.

Public outrage over the coup attempt is palpable. We watched live as violent mobs roamed the halls of Congress with impunity, waving Confederate flags in the U.S. Capitol and ransacking offices of elected officials, including House Speaker Nancy Pelosi. They entered the Senate chambers, making a mockery of election certification proceedings, mandated by the U.S. Constitution, that were proceeding just moments earlier.

This was more than vandalism; this was targeted violence in the name of white supremacy. Intruders breached some of the most secure parts of the Capitol building in pursuit of elected officials, who had to flee for their own safety. Explosives were found nearby at the headquarters of both the Democratic and Republican National Committees. A television crew from the Associated Press had their equipment stolen and destroyed. Five people died, including a woman who was shot by police outside the House chamber.

But most shocking of all was the ease with which this group of violent insurrectionists threatened officials, broke through police lines, smashed their way into the heart of our government, and in many cases simply walked out without a care in the world.

Imagine if the people storming the Capitol were Black. Compare the timid response to this assault with the overwhelming show of force at more peaceful Black Lives Matter rallies in Washington, D.C., and we are left with so many questions. Why were police taking selfies with the intruders and reportedly giving them directions, on a day when one of their own colleagues was killed defending the building? Why were two Washington Post reporters arrested while doing their jobs? Why did it take hours for the National Guard to get called in to deal with an insurrection? Why were requests for support reportedly denied by the Department of Defense? Why, in short, was any of this allowed to happen?

The government’s response to this coup attempt will determine the future of our democracy—and the likelihood of similar events in the future. Many have issued calls for national healing and reconciliation in the wake of this horrific event, but that can’t happen while so many questions remain unanswered. Without truth and accountability, there can be no justice. Without justice, there will never be peace.

TAKE ACTION: DONALD TRUMP SHOULD BE IMPEACHED

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• Read more about After an attack on our democracy, we must have truth and accountability

By Carol Rose, Rahsaan Hall, and Kade Crockford

On May 30, 2020, no one would have predicted that the Massachusetts state legislature would pass police reform or surveillance regulation before the end of the legislative session. The following day, thousands of people took to the streets and changed history.

The May 31 protests against police violence in the wake of the police killing of George Floyd shook the foundations of power in the Commonwealth. Lawmakers were finally listening to the people’s cries about policing and racial injustice. Overnight, police reform became the hottest topic on Beacon Hill. 

It’s been a long and winding journey from those protests to the bill Governor Baker last week signed into law. 

Since the early summer, advocates and activists throughout Massachusetts have worked tirelessly to pressure state lawmakers to do the right thing and send strong police reforms to Governor Baker’s desk. Throughout the summer, people called, emailed, and marched to convince House and Senate leadership to include police certification, limits on use of force and qualified immunity, and regulations on face surveillance in the police reform bills. After the House and Senate voted on legislation differing in these areas, a civil rights movement for police reform mobilized to pressure the conference committee to agree to the strongest possible language.

Meanwhile, the police unions launched a massive campaign to stop the proposed reforms.  They bought high-priced ads in the state’s most influential newspaper, imploring legislative leaders to make only marginal changes to the law. They misrepresented the proposed changes with misleading suggestions that police would lose their homes or were otherwise victims of reform efforts, while ignoring the voices of actual victims of police misconduct. By flexing their considerable political muscle, the police unions tried to frighten lawmakers to back off of robust systemic reforms. There was a real risk that the police—the people who the reforms were designed to hold accountable—would have the strongest political hand in shaping those reforms.

But civil rights advocates weren’t going to go down without a fight. After the conference committee released its language last fall, movement leaders once again mobilized people to ensure the House and Senate would pass the compromise legislation, which they did in early December.

Unfortunately, the House did not pass the bill with a large enough margin to be able to override a potential veto. And Governor Baker—siding with police unions—rejected key elements of the legislation, promising to veto any bill that included language to place robust limits on police use of face surveillance or the use of force. 

Despite these formidable odds, advocates and activists did not give up. We mobilized again, and thousands of Massachusetts residents contacted their legislators to urge them to reject Governor Baker’s amendments. The Boston Celtics roster even joined the fight, with every player on the team signing an op-ed in the Boston Globe calling on Governor Baker to get out of the people’s way, and to sign into law strong protections against misuse of face surveillance technologies, which data science has shown exacerbates racial disparities. 

People power paid off: police reform was signed into law on December 31. We didn’t get everything we wanted in the new law, but we achieved far more than we thought possible just six months ago. Moreover, we’ve laid the groundwork for additional police reform in the year ahead. This advocacy campaign changed both the law and the public conversation—and we are just getting started.

In recent weeks, defense attorney Carl Williams obtained and published videos of Boston Police officers brutalizing peaceful protesters on May 31, 2020 in downtown Boston. Those videos, like the ACLU’s “Police Violence Happens Here” project, expose the lie that police in Massachusetts are somehow different from police in other states. 

The myth that Massachusetts doesn’t have a police problem is precisely what advocates and activists have called out. In so doing, they have convinced voters, lawmakers, and the Governor to go deeper and wider in their police reform effort than previously thought possible. 

The resulting law is far from perfect, but it lays the necessary groundwork for ongoing public actions to reimagine policing, public health, and public safety.  

As we reflect on 2020, everyone who fought for police reform in Massachusetts should celebrate the important victories in this law, just as we remain clear-headed and strategic about the many fights to come. 

In that spirit, here are five important pieces of the police reform law you might have missed, and which we should all take time to celebrate:

1. Key protections for Massachusetts youth:
   1. Local control over police in schools: Previously, state law in Massachusetts required that school districts assign at least one police officer to work full time as a “School Resource Officer.” Section 79 of the new law nixes that requirement, opening up space for community advocates to push for police-free schools at the local level throughout the state.
   2. Restrictions on data sharing to stop the school-to-prison and school-to-deportation pipelines: Section 78 of the law prohibits school personnel and school resource officers from sharing certain student information with law enforcement agencies. Among other things, Section 78 prohibits sharing immigration status and citizenship information with cops, naming the Commonwealth Fusion Center and the Boston Regional Intelligence Center (BRIC) specifically, and preventing officials from sharing information with these federally-linked spy centers. Activists including our partners at the Student Immigrant Movement have for years been pushing for changes to information sharing practices, since we learned that an East Boston high school student was deported due to school officials sharing information about him with ICE.
   3. Expanded expungement of juvenile criminal records. While the new law does not go as far as advocates had hoped, it makes improvements to the prior law. From our friends at Citizens for Juvenile Justice: “The [law] expands expungement eligibility of records charged prior to age 21 to rectify the over-criminalization of Massachusetts’ youth of color, by removing barriers to full integration in society in their adulthood. Whether someone wants to work in law enforcement, human services or be a foster parent, a juvenile record makes it hard to impossible to give back to society in these roles. The policing [law] makes three positive changes: (1) distinguishes between charges that resulted in a conviction or adjudication and those with a more favorable disposition; (2) increases the number of cases eligible for expungement to no more than two cases resulting in a conviction/adjudication and two cases resulting in a non-conviction/non-adjudication; and (3) clarifies that multiple charges resulting from the same incident will count as one, recognizing the over-charging of youth. Unfortunately the [law] maintains the list of over 160 offenses that have a life-time ban on expungement eligibility, rejecting language that would have limited the exclusion to “felony convictions” of these offenses.”
2. Public health data collection and reporting of police violence: For the first time, the law requires centralized data collection and reporting on police violence. Sections 85 and 86 require the Department of Public Health to collect and publicly report data on injuries and deaths caused by law enforcement and corrections officers, as well as occupational fatalities and injuries of law enforcement and corrections officers.
3. Public disclosure of police misconduct records: Section 2 of the law ensures that police misconduct investigation records are public records. Under current law, the outcomes of misconduct investigations are public but the underlying materials are shielded from public. Section 2 ensures that both the outcome and records related to a misconduct investigation are public records. This is the Massachusetts version of what New York did over the summer, when the legislature there repealed Section 50-a, the NY statute that previously shielded police misconduct investigations from public view. 
4. Preventing sexual assault in police custody: Section 92 of the law closes a troubling statutory loophole by prohibiting law enforcement officers from engaging in sexual conduct with persons in their custody.
5. Permanent commissions: The law creates four permanent commissions on the status of African Americans, the status of Latinos and Latinas, the status of persons with disabilities, and the social status of Black men and boys. These independent commissions will be a resource to the state and policymakers on issues affecting specific populations. 

These are important victories, and we should savor them. But much work remains for us in 2021 and beyond. In many important areas, the legislature did not overcome the objections of the police unions, anti-reform lawmakers, and Governor Baker. But what we didn’t win this time we will redouble our efforts to secure in the coming years. Here are the top five things the law stopped short of getting right, charting a road map of the work to come.

1. Face and other remote biometric surveillance: The legislation lawmakers originally sent to Governor Baker’s desk would have prohibited most government agencies in Massachusetts from possessing or using face, iris, voice, gait, and other remote biometric surveillance technologies. It created a warrant requirement allowing police to search the Registry of Motor Vehicles’ facial recognition system in serious criminal investigations, and allowed police to skip that warrant process only in life threatening emergencies. The legislation would have been the world’s strongest protections against government use of this dangerous, racially-biased technology. Getting the bill that far represents an enormous victory for our movement. But Governor Baker rejected that common sense approach outright, and the House didn’t have the votes to override a threatened veto. The compromise language Governor Baker signed into law is an improvement over the status quo, but stops well short of our goals. Under the new law, police may request facial recognition searches at the State Police, RMV, and FBI, with a court order, or use the technology without judicial approval in emergencies. Each year, the state must report on its website how often the technology was used, by which agencies, and in which types of criminal investigations. The legislation also creates a commission to study whether Massachusetts should pass more stringent regulations on the government’s use of this technology.  
2. Fixing the Massachusetts Civil Rights Act. The Massachusetts Civil Rights Act (MCRA) is the state law that is supposed to make it possible for individuals to hold police accountable for violations of civil rights, including violations of new rules set out in the police reform bill. Unfortunately, because of three words in the law, the MCRA has provided no remedy when an officer uses excessive force. Today, police officers can only be held liable under the MCRA if they use “threats, intimidation or coercion” to violate someone’s rights. Courts have interpreted this requirement to mean that officers cannot be held liable for a direct violation of rights alone. The senate version of the police reform bill would have fixed the MCRA by repealing the “threats, intimidation or coercion” requirement, but the final bill failed to include this critical fix. 
3. Qualified immunity. Contemporary Massachusetts civil rights law is further undermined by the judicial doctrine known as “qualified immunity,” which shields police from liability if the right that was violated was not “clearly established.” This means that if you have been harmed by the police, but exact same harm has not already been the subject of litigation or specifically prohibited by law, the officer will be let off the hook. The final police bill did not directly address qualified immunity. Instead, it only limited immunity for officers who are formally decertified and created a study commission to explore broader reforms. 
4. Use of force definitions. In his amendment to the policing bill, Governor Baker eliminated three key definitions from the section of the bill that created new standards for police use of force. Without these definitions, the appropriate standard for police use of physical force, including deadly force, is open to subjective interpretation. The definitions of key terms like “imminent harm,” “totality of the circumstances,” and “necessary,” must be explicit and clear. They should at a minimum be promulgated in written regulations, or better yet, restored in the statute.
5. Democratic oversight of military acquisitions: Unfortunately, lawmakers also failed to secure language that would have required local government bodies like City Councils to approve any transfers of military equipment to their local police department. Currently, the police in Massachusetts obtain military weapons and other technologies from the Department of Defense, free of charge, and absent any local oversight or control. That must change. Small towns don’t need rocket launchers and tanks, and local communities should have a say over whether those types of weapons are allowed in their local police departments.

We have much work to do in 2021 and beyond. But we are ready to build on this success—with gratitude to our friends, allies, and supporters, who have been shoulder to shoulder in the march toward a more just world. 

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• Read more about What the movement for police accountability achieved in 2020—and what comes next

The sudden death of Ralph Gants, the Chief Justice of the Massachusetts Supreme Judicial Court, is a profound loss for the legal community and for everyone who relies on the law to do justice. And in the wake of such a loss, it is incumbent on us, and our leaders, to mitigate it.

Chief Justice Gants had all the qualities you’d want in a judge: he cared about people seeking justice; he truly listened; and he had the intellect to cut to the core of every legal issue.

He was also funny and warm. Although many of my interactions with the Chief Justice came through briefing and arguing cases, I also had the good fortune of running into him from time to time in professional gatherings. He always had a joke and some words of encouragement. He wanted people to do well, and to do good. It was a rare combination of intellect and empathy, arising from a recognition that the law is fundamentally about people.

This focus on people might explain why access to justice was an overarching theme to Chief Justice Gants’ work. In a groundbreaking 2017 opinion in the ACLU’s litigation on the Hinton Lab scandal, which led to the single largest dismissal of wrongful convictions in U.S. history, Chief Justice Gants emphasized the need to ensure meaningful access to the courts for victims of government misconduct. In 2018, Gants authored a landmark opinion seeking to ensure access to the courts for pro se and low-income litigants facing eviction. And just last week, he authored an important opinion about the rights of criminal defendants to access exculpatory evidence of police misconduct.

But the role of Chief Justice is larger than the sum of the Court’s opinions, and so Gants’ focus on access to justice was not limited to case law. He was a champion for civil legal aid, including an “Access to Justice Fellows Program” that pairs recently retired lawyers and judges with nonprofits in need of legal services. It was Chief Justice Gants who in 2016, after the Court ruled against an ACLU challenge to mandatory minimum sentencing, announced a study of racial disparities in the criminal legal system. The publication of that study earlier this month is an important part of Gants’ legacy.

And in December 2015, shortly after then-candidate Trump called for a “total and complete shutdown of Muslims entering the United States,” Chief Justice Gants spoke at the Islamic Society of Boston Cultural Center. In admirable contrast to certain federal courts that have been silent on racism’s role in America today, Gants explained:

I asked to speak with you today because I know that this is a difficult time for persons who practice the Islamic faith in this country. And I am here to assure you that you do not stand alone: you have a Constitution and laws to protect your right to practice your religion, to protect you from discrimination and the denial of your equal rights, and to protect you from acts of violence that might be committed because of your religion or your nation of origin. And as the Chief Justice of the highest court in Massachusetts, as one who has sworn to uphold that Constitution, and whose job it is to interpret its meaning, and, where appropriate, to enforce it, it is only fitting that I be the one to bring you that message.

In each of these examples, a different Chief Justice could have made a different choice. And if they had, we would all be less free, and our legal system would be less fair. For that reason, as a lawyer who has devoted most of my career to the cause of justice, it is difficult for me to put into words what the loss of Chief Justice Gants means.

But I can say this: we honor Chief Justice Gants’ legacy not by mourning it, but by continuing it. This a dangerous time for the American legal system. The rule of law, and the protections it affords the least powerful members of our communities, are in serious jeopardy. We need people who will enforce the rights of every person to access the guarantees in our laws, and thus to access to justice. We need people like Chief Justice Gants.

A decision will be made about who should replace Gants as Chief Justice. Public officials will face choices about whether to expand or contract access to justice. And all of us will have opportunities to bring both intellect and empathy to the work we do. All of these choices should be judged by the standards that Chief Justice Gants has set for us.

Matthew Segal is the legal director of the ACLU of Massachusetts.

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• Read more about The legacy of Chief Justice Gants