Overview of Senate Bill 2820: The Reform, Shift+ Build Act
What Does the Reform, Shift + Build Act do?
This comprehensive bill is designed to increase police accountability, shift the role of law enforcement away from surveillance and punishment towards de-escalation and assistance, and begin to dismantle systemic racism
The Reform, Shift + Build Act is the Senate’s initial step towards addressing issues of racial justice and equity in the Commonwealth
Where did the bill come from?
o In early June 2020, Senate President Karen Spilka formed the bipartisan Senate Working Group on Racial Justice in response to protests in the wake of the killings of George Floyd, Breonna Taylor, Ahmaud Arbery and others
o The bipartisan Working Group—which was co-chaired by Sens. Sonia Chang-Díaz (D-Boston) and William Brownsberger (D-Belmont)—included Sens. Bruce Tarr (R-Gloucester), Michael Moore (D-Millbury), Nick Collins (D-Boston), and Jo Comerford (D-Northampton); one of the Democrats is a former police officer and one of the co-chairs is a member of the Black & Latino Legislative Caucus
o The Working Group largely evaluated existing bills, which had been vetted through the traditional legislative process, including the joint committee process and public hearings; Senators suggested existing bills to the Working Group for their consideration for inclusion in an omnibus bill focused on police accountability and racial justice
o The policies included were modeled after recommendations from community advocates and elected officials of color from around the state
o The resulting bill, the Reform, Shift + Build Act, was released by the Senate Ways and Means Committee on July 6, 2020 and was endorsed by the NAACP New England Area Conference (NEAC) and the ACLU of Massachusetts; many of the reforms were also welcomed by law enforcement groups
o Once the bill was released, discussions continued with Senators, police groups, the NAACP- NEAC and the ACLU of Massachusetts to reach consensus on bill language; groups were invited to submit clarifying language
How do the reforms in the Reform, Shift + Build Act keep communities of color safe?
o The reforms included in the bill will decrease the footprint of policing overall as well as the likelihood of misconduct by setting clear standards, requiring de-escalation and strengthening accountability
o By banning racial profiling and collecting comprehensive demographic data on police stops, communities of color will be made safer from the consequences of implicit bias, and bad actors can be identified earlier on by police departments and communities
o The bill increases community safety by redirecting resources to strategies that build neighborhood stability and strength: job creation and economic development, education, and mental and behavioral health services
o The bill reallocates money from the corrections system and police overtime fraud to economic empowerment initiatives in communities impacted by over-policing and mass incarceration; grants will be controlled by a board of community members, local leaders and residents
Bill Components
Accountability, Oversight + Training
o The bill creates a Police Officer Standards and Accreditation Committee (POSAC)—an independent state entity composed of law enforcement professionals, community members, and racial justice advocates—to standardize the certification, training, and decertification of police officers.
The POSAC includes six law enforcement members, both management and rank-and-file officers, eight non-law enforcement members and one retired judge
All non-law enforcement members will have experience with or expertise in law enforcement practice and training, criminal law, civil rights law, the criminal justice system or social science fields related to race or bias
The POSAC will have independent power to investigate misconduct, including subpoena power
Certain offenses, such as excessive use of force or failing to intervene, will result in mandatory and permanent decertification of an officer
Any POSAC investigation does not preclude an investigation by the officer’s appointing authority
The POSAC process grants an officer the right to request a hearing, a right to be present at the hearing, a right to submit testimony at the hearing and a right to counsel at the hearing; the POSAC process also allows for a thorough appeals process, including in court
The POSAC has the ability to revoke the certification of an officer found in violation of the use of force laws established in the bill, and other actions such as involvement in hate crimes, false arrests and witness intimidation
Decertification is for life; a decertified officer cannot work as a police officer or corrections officer anywhere in Massachusetts
The results of substantiated complaints will be available in a publicly searchable database
The bill establishes a commission to recommend a correctional officer certification, training, and decertification framework similar to the POSAC; recommendations are due by July 31, 2021
What exactly is the POSAC process for decertification?
The POSAC can receive a complaint from any person
If the complaint is of a charge that would result in automatic decertification, the POSAC must investigate it
If it is of a lesser charge, the POSAC may investigate or they may request that the officer’s employing agency investigate it—or both investigations may proceed concurrently if both authorities choose to investigate
The POSAC has the ability to subpoena police records and other documentation necessary for the investigation
When the investigation is complete, the POSAC hearing panel votes
The simple majority decision prevails, as is the case with other licensed professions; the standard will be the high bar of clear and convincing evidence
If revocation of certification takes place, an officer’s decertification is maintained within state and national data systems
Adverse actions taken by the POSAC against an officer’s certification may not be appealed to the civil service commission
The bill includes reforms to the State Police, including:
Permitting the appointment of a colonel from outside the State Police
Giving the colonel greater ability to apply discipline
Creating a state police cadent program, to increase diversity in the workforce
The bill imposes a moratorium on the use facial surveillance technology by government entities until December 31, 2021 while a commission studies its use
The bill creates a task force to study the use of body and dashboard cameras by law enforcement agencies
The bill prohibits non-disclosure agreements in settlements over police misconduct
The bill mandates increased training on the history of systemic racism, responding to mental health emergencies, de-escalation techniques and use of force rules.
Use of Force
o The Reform, Shift + Build Act strengthens use of force standards for all law enforcement agents by:
Banning chokeholds where the intent or result is to cause unconsciousness
Limiting no-knock warrants to cases where not knocking would endanger lives, and increases the level of oversight needed to get a no-knock warrant to require sign-off by a judge
Restricting the use of deadly force only to situations where it is necessary to prevent imminent death or serious physical injury to the officer or another person; preventing escape is no longer an acceptable reason for deadly force
Requiring the use of de-escalation tactics when feasible before the use of any physical or deadly force
Creating a duty to intervene for officers who witness abuse of force and requiring the witnessing officer to report such abuse to supervisors by the end of their shifts
Significantly increasing limits on police use of elevated crowd control tactics such as tear gas, rubber bullets and dogs
Police may not use elevated crowd control tactics unless all of the following conditions apply:
De-escalation tactics have been tried and have failed, or were not feasible
There is a threat of imminent harm to people, not just property
The harm likely to be inflicted by the crowd control tactic is proportionate to the imminent harm that will occur if nothing is done.
o All use of force standards in the bill provide an exception if there is imminent harm to the officer or another person
Qualified Immunity + Indemnification
The following is background on qualified immunity:
Qualified immunity is an affirmative defense created by the Supreme Court and since expanded
The text from the decision of the Supreme Court case that established the modern concept of qualified immunity is as follows:
Government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known
In defining this standard, the court sought to balance considerations of justice for plaintiffs with the social costs of excessive lawsuits
In practice, qualified immunity has unfortunately served to shield police officers from accountability even in some of the worst cases of excessive force, by effectively blocking individuals from bringing suits against police who violate their constitutional rights
For too long, qualified immunity has prevented countless victims and families from having their day in court
For more on the history of qualified immunity, see: willbrownsberger.com/qualified- immunity/
o What the process for including language on qualified immunity on the Reform, Shift + Build Act entailed:
The language on qualified immunity is largely taken from a bill sponsored by Representative Michael Day (D-Stoneham): An Act to secure civil rights through the courts of the Commonwealth (Bill H.3277)
This bill received a public hearing on September 17, 2019
The bill was voted favorably out of the Judiciary Committee on February 13, 2020
Both chairs of the Judiciary Committee, Sen. Jamie Eldridge and Rep. Clare Cronin, voted that this bill “ought to pass”
The Senate members of the Judiciary Committee voted in the following manner on this bill: five members voted that the bill “ought to pass” and one member reserved rights
Conversations with law enforcement and community groups were held before the Reform, Shift + Build Act was released from Senate Ways and Means, and continued conversations after the bill’s release from Senate Ways and Means resulted in modified language to clarify that the bill was merely limiting, not eliminating, qualified immunity
What the Reform, Shift + Build Act actually does to qualified immunity:
The intent of the legislation is to recalibrate and restore balance with respect to qualified immunity for civil rights claims
Under the bill, officials who act in an objectively reasonable manner will continue to have immunity if they are sued
The Senate is not taking away in any shape or form the defense of qualified immunity; we're just modifying it to a reasonableness standard
The touchstone for qualified immunity has always been reasonableness
But over time, courts have made it harder and harder for plaintiffs to prove that an official’s conduct was unreasonable; to the point that, now, a plaintiff virtually cannot sue unless a previous court has found that the exact same conduct, in the exact same circumstances—no matter how egregious—was a constitutional violation
The legislation is an effort to rebalance the test that courts apply to have it focus once again on the reasonableness of the official’s conduct
As the Senate has said from the outset, this bill does not eliminate qualified immunity, it limits it
An official will continue to be immune if his or her conduct was objectively reasonable
The legislation does, however, shift the focus of the test away from an inquiry into whether the claimed civil rights violation was clearly established by a previous court case; we believe this is an important change
Further, the legislation does not change indemnification for officials who are sued Officials will continue to be indemnified by their employers, as they are now, for money damages awarded by a court
For police officers and their families worried about losing their home or their possessions: they are indemnified now and will be indemnified after passage of this bill; the terms of their collective bargaining agreement or other employment agreement are unchanged
This legislation only affects Massachusetts civil rights law; it does not—and cannot— affect the interpretation of federal law
Why the Senate believes it is necessary to limit qualified immunity:
In any other occupation in America, there are standards of conduct and consequences for violating them—doctors can be sued for malpractice, lawyers can be sued for negligence; policing should be no exception
Individuals should be able to seek accountability in court when an officer violates their civil rights
Policymakers have a role and responsibility to limit qualified immunity to bring much needed accountability to victims of police violence and their families
Bill Components: Shift
The Reform, Shift + Build Act redirects funding away from policing and corrections towards community investment through the establishment of, and dedicated funding streams for, the Justice Reinvestment Workforce Development Fund
o The fund:
Will be controlled by impacted-community members and community developmentprofessionals
Requires the calculation and publication of savings accrued to the state each year due to reductions in jail and prison populations and requires part of those savings, up to $10 million a year, be directed into the fund
Will make competitive grants to drive economic opportunities in communities most impacted by excessive policing and mass incarceration
Will also receive damages from police overtime fraud cases
The bill promotes demilitarization of police forces by mandating that all law enforcement agencies receive permission from their local legislative or civilian authority to apply for grants of military equipment
The bill expands community-based, non-police solutions to crisis response and jail diversion by developing new evidence-based intervention models; it also reworks the community policing and behavioral health advisory council to focus more on training and collaboration between police and mental health professionals
The bill helps dismantle the school-to-prison pipeline by:
o Promoting student safety and well-being over criminalization by removing the automatic
assignment of School Resource Officers
o Limiting school districts from sharing students’ personal information with law enforcement
o Expanding access to record expungement for young people by allowing individuals with more than one charge on their juvenile record to qualify for expungement
Bill Components: Build
The Reform, Shift + Build Act strives to build a more equitable, fair and just system by beginning to dismantle systemic racism
The bill bans racial profiling by law enforcement and requires data collection on all stops, frisks and searches to track, manage and allow for public scrutiny of patterns, and further requires intervention when evidence demonstrates profiling; the data, and subsequent analysis, will be available to the public
The bill introduces a police training requirement on the history of slavery, lynching and racism
The bill creates a permanent African American Commission, the primary purpose of which will be to advise the legislature and executive agencies on policies and practices that will ensure equity for, and address the impact of, discrimination against African Americans
It also creates a LatinX Commission, based on the existing Asian-American Commission and the African American Commission created in the current bill, to bring more underrepresented voices to the table and ensure equity in policymaking
The bill eliminates statutory language offensive to the LGBTQ+ community
The bill creates a Commission on Structural Racism, which:
o Seeks to study the presence of institutional racism and structural racial inequality in the criminal justice system
o Will propose programming and policy shifts, and identify legislative or agency barriers to promoting the optimal operation of the Department of Corrections (DOC)
o Creates a roadmap for the legislature to establish a permanent publicly funded entity to continue this work