Dear Neighbor,
On Tuesday, the Senate passed the Reform, Shift + Build Act to enact reforms to raise police accountability standards, shift resources to communities and build equity, justice and fairness. We started debate on the previous Thursday. It was tabled till the next day three times, and the Monday session lasted until 4:30 Tuesday morning as we debated 145 amendments.
A bipartisan Senate Working Group on Racial Justice, co-chaired by Senators Will Brownsberger and Sonia Chang-Diaz, worked intensely for several weeks. The bill they wrote is intended to increase police accountability, shift the role of law enforcement away from surveillance and punishment, and begin to dismantle systemic racism.
Sen. Chang-Diaz credited "the organizers, advocates, and protesters who have been fighting these battles for years and have made it impossible for us to look away now."
Over 300 people from our district flooded our email inbox and filled our voicemail day after day. Most favored the bill or wanted it strengthened. We also heard from police officers concerned that the bill would make possible frivolous suits against them; I explain the issue of qualified immunity below.
Over 90% of the provisions came from bills that had been filed, had hearings, and often reported favorably by a committee.
Main Provisions
The bill:
strengthens the use of force standards: it bans chokeholds and other deadly uses of force except in cases of imminent harm
requires the use of de-escalation tactics when feasible
creates a duty to intervene for officers who witness abuse of force
expands and strengthens police training in de-escalation, racism and intervention tactics
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
creates a state police cadet program to increase diversity
allows the Governor to select a colonel from outside the state police force and gives the colonel a greater ability to apply discipline
imposes a moratorium on the use of facial surveillance technology by government entities while a commission studies its use and creates a task force to study the use of body and dashboard cameras by law enforcement agencies
requires transparency and civilian authorization for military equipment acquisitions..
expands access to record expungement for young people
establishes the Strong Communities and Justice Reinvestment Workforce Development Fund to shift funding from policing and corrections towards community investment.
My Amendments on School to Prison Pipeline
Two of my amendments will help disrupt the school to prison pipeline. One would remove automatic assignment of school resource officers, but allow superintendents to request them. The other would limit school districts from sharing students' personal information with law enforcement databases.
Qualified Immunity
The most controversial part of the bill concerns qualified immunity. It doesn't eliminate qualified immunity but restores the original intent of the doctrine, which was to protect officers and other public employees - including legislators - from civil suits if they behaved in an objectively reasonable manner. Here’s the language:
In an action for monetary damages under this section, qualified immunity shall not apply unless no reasonable defendant could have had reason to believe that such conduct would violate the law at the time the conduct occurred. Nothing in this section shall affect the provisions of chapter 258 with respect to indemnification of public employees.
In other words, a person could only be sued for damages if a reasonable person would have understood that they were breaking the law.
Right now, it is almost impossible to hold public employees accountable in civil suits for illegal or unconstitutional offenses. This is because of decades of judicial rulings that have resulted in denial of suits unless the facts in the case were essentially the same as a previously decided successful suit. You may be interested in the examples and explanation in The Lawyers Weekly: https://masslawyersweekly.com/2020/06/18/time-to-revisit-qualified-immunity-doctrine/ Here’s an excerpt:
Qualified immunity is a non-statutory, judge-made doctrine born in the late 1960s that bars civil rights suits against an officer (or other government official) whose unconstitutional conduct had not been “clearly established” as being illegal at the time it occurred. The original purpose of qualified immunity was to block frivolous suits against government officials. But today the doctrine is as likely to bar a legitimate claim as it is to stop a frivolous one.
As it stands now, a plaintiff who suffers a deprivation of his or her constitutional rights at the hands of a police officer must point to an appellate case in existence at the time of the incident with similar facts and circumstances that established the unconstitutionality of the specific police conduct complained of.
That’s often an insurmountable hurdle. Courts have sided with police because of the difference between subduing a woman for walking away from an officer and subduing a woman for refusing to end a phone call; between shooting at a dog and hitting a child and shooting at a truck and hitting a passenger; and between unleashing a police dog to bite a motionless suspect in a bushy ravine and unleashing a police dog to bite a compliant suspect in a canal in the woods.
Another explanation was presented by Sen. Brownsberger: https://willbrownsberger.com/qualified-immunity/
Perhaps the best way to understand why a change is needed is that most experts agree that, while Derek Chauvin may be tried criminally for the murder of George Floyd, he could probably not, under current court rulings, be sued civilly because that exact situation has not been ruled on in other cases.
There is no change in indemnification. The bill explicitly states that officials will continue to be indemnified by their employers, as they are now, for money damages awarded by a court.
More details on the bill are here.
Or you can read the bill . At that site you will find the Ways and Means bill, amendments, roll calls, and a link to the final version.
The bill had a hearing in the House on Friday, and it will be taken up there next week.
Stay safe, and stay in touch,