Senate Votes for Police Reform Changes in Compromise With Baker

Aiming to find compromise with Gov. Charlie Baker over police accountability and oversight, senators agreed Monday to scale back restrictions they had sought to put on the use of facial recognition software by law enforcement and to limit the influence of a civilian-led commission over police training.

The newest version of the police reform legislation emerged in the Senate in the late afternoon and passed after an attempted parliamentary delay as Democratic leaders work to send a bill back to Baker before Christmas. With the House in session Tuesday, a spokeswoman for Baker said the governor would sign this new version if the House goes along with the changes made by the Senate.

"Today's Senate proposal reflects the amendments that the Governor made to the bill two weeks ago. After discussing the governor's amendments with the Black and Latino Legislative Caucus, the Administration believes this package addresses the issues identified by the Governor's amendments and he looks forward to signing this version should it reach his desk," communications director Lizzy Guyton said in a statement.

Democrats likely do not have the numbers to override Baker in the House if the governor were to veto the police reform bill.

"I believe this is a strong bill, and I wouldn't have put it before the members if I did not think that the House and the governor hopefully could be on board with it as well," Senate President Karen Spilka said Monday night after the 31-9 vote to approve the updated version of Baker's police reform amendment (S 2981).

The new language curtails some sections of the landmark bill that Baker threatened to veto over concerns with its strict limits on the use by police of facial recognition technology and the control over the development of police training programs that the bill would have given to a civilian-controlled Peace Officer Standards and Training Commission.

The original bill lawmakers sent to Baker banned almost all law enforcement use of facial recognition systems, only allowing police to ask the Registry of Motor Vehicles to perform a search with a warrant or if there is "an emergency involving immediate danger of death or serious physical injury."

Under the changes the Senate approved, police would be able to perform facial recognition searches to assist with criminal cases or to mitigate "substantial risk of harm" after submitting a written request to the RMV, Massachusetts State Police, or the Federal Bureau of Investigation.

A legislative commission, including members from both civil rights groups and police, would also study the topic of facial recognition and make recommendations for additional regulations by the end of 2021.

"What we put on the governor's desk (originally) was a full ban of facial recognition techniques," Sen. William Brownsberger, a Belmont Democrat who helped craft the underlying bill, told reporters ahead of the vote. "This is a partial ban, or a limit, a regulation of them, and a study to explore the need for full regulation. It's a pretty balanced thing. It's not what everybody wants, but it's the kind of compromise that hopefully people can recognize is forward motion."

The new amendment would also keep in place a municipal police training committee under the administration's Executive Office of Public Safety and Security, rather than transfer its duties to a new majority-civilian POST commission. Brownsberger said the POST commission would still maintain some approval authority over use of force standards, noting that the Senate's first pass at police reform built a similar training structure before the language changed in negotiations with the House.

Most other sections of the underlying reform are not touched by the latest amendment. When Baker sent the bill back to lawmakers on Dec. 10, he said he would accept some limits on qualified immunity for police officers and the creation of the majority-civilian licensing board, which would have police licensing and decertification power.

He said he would not, however, sign legislation that bans police from using facial recognition technology in response to crimes or takes oversight of municipal police training away from law enforcement personnel within the executive branch.

Baker met last week with the Black and Latino Legislative Caucus to discuss a possible middle ground on both topics, and developed parameters for a compromise that was shared with leaders in both branches of Legislature. Sen. Sonia Chang-Diaz, the Senate's lone member of the BLLC and one of the conferees who negotiated the original bill, said ahead of Monday's vote that there were "a lot of mixed emotions" about the package.

"There is a lot of mourning that I and others are doing for the things not included in this bill," she said. "But at the end of the day, when I zoom out and I look at what this bill accomplishes relative to what anyone would have expected twelve months ago or six months ago or even six days ago, there is a ton in this bill that is really going to set a new standard for the national policy landscape on police accountability that could potentially ripple through the other forty-nine states."

While the final amendment that now heads to the House matches what Senate leaders unveiled Monday, the route to its passage was bumpy. Senate Republicans at first attempted to delay the vote, citing a rushed rollout.

Minority Leader Bruce Tarr asked for the amendments to be printed in the calendar, a parliamentary tactic that forced Democrats to take the unusual step of adjourning Monday's session and returning in a new "legislative day" less than an hour later. He said it was "truly unfortunate" that members and the public had only a few hours to review the amendment before senators were asked to vote.

"I would humbly suggest that is a disservice to the process," Tarr said.

Tarr proposed a handful of other changes that were all rejected, including one that would have changed the membership on the POST Commission to an equal number of law enforcement and civilian representatives.

Another amendment filed by Sen. Diana DiZoglio, a Methuen Democrat, sought to make no-knock warrants more accessible in cases when a minor or elderly person in a home is in danger or may be a trafficking victim. DiZoglio, who described herself as a survivor of childhood sexual abuse, criticized the process as rushed and leaving key issues unaddressed.

"It's not okay. What is happening in this process is not okay," DiZoglio said. "This language is not okay. These kids deserve protection, too."

Senators rejected that amendment, with Brownsberger arguing that the bill's restriction on the use of no-knock warrants in cases involving minors or seniors still allows the practice when there is a threat of "imminent harm."

The procedural issues and rehashed debate underscored the bind in which supporters of the bill find themselves. By waiting until so late in the session -- there are only 16 days until the process starts again from scratch for unfinished legislation -- legislative leaders have given opponents an opening to delay it with parliamentary stall tactics.

If Democratic legislative leaders want to push through any police reform changes over Baker's opposition, they may struggle: the conference committee report was accepted 28-12 in the Senate, just one vote above a veto-proof majority, and 92-67 in the House, which falls short of the necessary two-thirds margin.

That creates additional pressure to craft a version that can simultaneously earn Baker's signature and please the advocates who led the push for change.

Asked if he believes Baker will agree to the compromise, Brownsberger replied that lawmakers are "certainly trying to work with him."

"Now is the time. We can't let it go another year," he said. "There are problems we need to fix. We know about this. It keeps coming out in the news. We know there are problems we need to fix in the state. There are lots of wonderful officers in this state. There's a lot of very good, well-run police departments, but there are problems and we need to fix them."

The vote came three days after The Appeal published Boston police bodycam video from racial justice protests earlier this year sparked by the police killing of George Floyd.

In the videos, The Appeal reported, Boston officers were captured "bragging about attacking protesters, targeting nonviolent demonstrators for violence and possible arrest, discussing arrest quotas and the use of cars as weapons, and multiple instances of excessive force and liberal use of pepper spray."

Monday's vote was an opening salvo in what projects to be a flurry of Beacon Hill activity this week.

The House has formal sessions scheduled Tuesday and Wednesday, where the police amendment could surface for a vote. Lawmakers also plan to take votes soon to override Baker spending vetoes in the fiscal year 2021 budget, and representatives could be asked in the coming days to choose a new speaker as House Speaker Robert DeLeo, in negotiations for a job at Northeastern University, heads for the exit.

Four other major legislative packages concerning climate change, health care, economic development and transportation spending remain mired in private House-Senate negotiations, but will need to emerge for final approval before the session ends on Jan. 5 or get punted into the next two-year session.

"I just believe we have so much other work," Spilka said. "We have health care, transportation, economic development, among other things, other bills we want to get done. We need to keep moving. This is something we should get to the House, give them an opportunity to pass and get it to the governor."

House Ways and Means Committee Chair Rep. Aaron Michlewitz said Monday evening that Tuesday's session will feature "some amendments, some overrides, and we're taking a look at what (the Senate) filed and whatever the final result is that comes over here for police reform legislation."

Michlewitz said House members have had "conversations" about the compromise language in the Senate's vote, but did not commit to supporting it.

The Senate's decision to compromise with Baker stands in contrast to lawmakers standing firm on abortion. Last week, both branches rejected the governor's amendment to an abortion access proposal, doubling down on their effort to make the procedure more accessible to 16- and 17-year-olds without parental or judicial consent and to include broader language concerning aboritons after 24 weeks of pregnancy.

Baker would effectively gain unilateral control over any legislation he receives starting Sunday. The governor has 10 days to consider any bill, so he could "pocket veto" proposals once that window closes by sitting on them until the lawmaking session ends.

— Chris Lisinksi with Sam Doran contributing, State House News Service