More Information on the Reform, Shift + Build Act & Qualified Immunity

/in /by

I am writing today to help clarify the provisions of the Reform, Shift + Build Act, the police reform bill the Senate passed on Tuesday.

I believe that the vast majority of our law enforcement officers are dedicated public servants who are charged with doing extremely challenging and important work to keep our communities safe. I have great respect and appreciation for our police officers and their families.

At the same time, I think we must recognize both the long history and many recent examples of police violence and bias directed at people of color, including in Massachusetts. For example, see the report released just last week by the Department of Justice (link) about their investigation into the narcotics bureau of the Springfield Police Department.

I was proud to support the Reform, Shift + Build Act, which I believe will increase police accountability; shift the role of law enforcement away from surveillance and punishment; and begin to dismantle systemic racism.

This bill (S.2820) includes a number of major reforms:

  • A ban on chokeholds and other use of deadly force
  • Requires the use of de-escalation tactics when feasible
  • Creates a duty to intervene for officers who witness abuse of force
  • Limits qualified immunity defense for officers whose conduct violates the law
  • Expands and strengthens police training in de-escalation and intervention tactics
  • Creates a Police Officer Standards and Accreditation Committee to standardize the certification, training, and de-certification of police officers
  • Requires greater communication, planning, and deliberate de-escalation in order to avoid the use of tear gas or other chemicals during protests or similar events
  • Creates a state police cadet program to increase diversity in our officer ranks
  • Authorizes the Governor to select a colonel from outside the state police force and grants the colonel greater disciplinary powers
  • Imposes a moratorium on the use of facial surveillance technology
  • Requires greater transparency and civilian authorization for police seeking to acquire military equipment
  • Calls for the development of new evidence-based intervention models to reduce arrests
  • Reduces deployment of school resource officers and the sharing of student personal information with police
  • Expands access to records expungement for young people
  • Shifts funding from policing and toward community investment through the Strong Communities and Justice Reinvestment Workforce Development Fund
  • Bans racial profiling and requires racial data collection and reporting
  • Requires police training on the history of slavery, lynching and racism
  • Creates a permanent African American Commission to advise the legislature and the executive branch on policies and practices to address discrimination against African-Americans.

Some constituents have raised understandable concerns about making changes to qualified immunity for police officers (and other public employees), and fears that police officers might be held unreasonably liable for even minor mistakes reasonably committed while doing their job.

Fortunately, I can assure you that this is not the case. The bill passed by the Senate would only conceivably allow a police officer (or other public employee) to be held liable for violating a person’s civil rights in the most egregious circumstances – where a police officer has clearly and unreasonably broken the law and violated a person’s constitutional rights with their conduct. The problem that this legislation seeks to address is that the current legal interpretation of qualified immunity has become so broad that it is almost universally encompassing, even in cases where clearly anyone – especially a reasonable police officer – would condemn the actions of the offender. The Senate bill does not do away with qualified immunity.

I should add that the change to qualified immunity applies to all public officials and employees, including state legislators like myself, and not just police officers.

The following information may add additional helpful context:

  • Police are protected from liability: there are existing limits on liability for police officers and the use of force (link) that are unchanged by the Senate bill.
  • Police are protected from personal liability: a study finds that 99.98% of civil judgments against police officers are paid by the employing agencies (link).
  • Current MA civil rights law needs reform: discussion of how technicalities have so broadened qualified immunity as to be almost impossible to protect a victim’s constitutional rights (link).

It is also important to note that the language modifying qualified immunity in S2820 is virtually identical to a bill filed at the beginning of this legislative session by Representative Mike Day. This bill had a public hearing last year, and was released with a favorable recommendation by the Judiciary Committee earlier this year. Virtually no opposition was voiced to the Rep. Day bill.

Lastly, I want to address another misconception that some have expressed about S.2820. This bill does not change or limit collective bargaining rights or due process of local public sector employee unions, including police unions. Rather, it creates a separate statewide process (with appropriate due process protections) in order to certify police officers, and in rare cases of serious misconduct, to decertify them. Massachusetts is one of only a handful of states that does not currently have such a process for licensing police officers.

I am a strong supporter of unions and collective bargaining rights. Labor unions helped build the middle class in this country, and they provide essential protections and benefits for workers in both the public and private sectors.

I look forward to working with my colleagues in the House of Representatives and the Baker administration to hopefully see these crucial reforms passed into law very soon.

We have much more work to do together to address racial disparities in our criminal justice system, housing, healthcare, education, environmental policies and many other areas. I am committed to continuing to fight for greater economic, social and racial justice in our communities and Commonwealth.

Anyone with further questions or a desire to discuss any issues in greater detail should feel free to contact me and my team at Jason.Lewis@masenate.gov.