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:
- Key protections for Massachusetts youth:
- 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.
- 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.
- 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.”
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.