To our community,
On May 30, 2020, I stated, ”The Concord Police Department deplores the actions and inactions that resulted in the tragic death of George Floyd.” I also said, “We stand with those across the country in rejecting hate in all forms.”
On June 19, 2020, I wrote to the community again to address questions about policing issues. In my message I addressed eight specific points presented by “Concord Indivisible” regarding use of force.
The Massachusetts Senate and House of Representatives have been working on legislation that will in some form mandate policies and procedures of which the Concord Police Department and other agencies already have in place, and I addressed in my June 19 message.
Town Manager Stephen Crane and I announced on July 17, 2020 an agreement with the Concord Police Association Massachusetts Coalition of Police Local 260 to implement a body worn/in-car camera program. This agreement was made with a mutual understanding with the rank and file Officers that the cameras would in part build community trust and increase transparency.
On the same day that the camera agreement was announced and in an effort to continue to improve policing in Concord and throughout the Commonwealth, I provided written testimony to the the Chairs of Massachusetts’ House Ways and Means and Judiciary Committees to express my concerns with the bill, and specific sections which they had received from the Senate. I am aware that some in the community viewed video snippets where I stood with other Chiefs from throughout the Commonwealth, or some who have seen the article posted by the Concord Journal which may lead to an incorrect assessment of my position on the bill in its entirety. The Concord Police Department is committed to providing exceptional service and I will continue to seek improvements for our community.
Below please see the testimony which I provided, addressing specific sections of the bill:
“July 17, 2020
Via e-mail to: [email protected]
Re: Concerns to Senate 2820 as Amended
Dear Chair Aaron Michlewitz and Chair Claire Cronin,
Please accept the following testimony with regard to SB2820 – An Act to reform police standards and shift resources to build a more equitable, fair and just commonwealth that values Black lives and communities of color.
My name is Joseph F. O’Connor and I am the Chief of Police for the Town of Concord. I joined the Concord Police Department in June of 2014 after having served on the MBTA Transit Police Department from 1990-2014. I had previously served as a police officer for the towns of Dennis and Winchester beginning my career in 1986. During my time at the Transit Police, I rose through the ranks from Police Officer to Superintendent-in-Chief.
I hold a master’s degree in criminal justice from Boston University, and a bachelor’s degree in criminal justice from Curry College. I am also a graduate of the FBI National Academy and the Police Executive Research Forum’s Senior Management Institute for Police.
You are receiving information from various stakeholders who feel the need for change in our Commonwealth. The policing profession has been painted with a broad brush and as you are aware policing strategies and training vary throughout the country. Having spent the majority of my career working within Boston as a member of the MBTA Transit Police, I gained an understanding of many of the issues currently being debated. Here in Massachusetts, I am proud to personally observe leadership not only from my fellow Chiefs of Police but also Officers at all ranks as well as our non-sworn-personnel and residents who are committed to community policing that reflects the best of our profession.
The bill sent you by the Senate clearly was rushed, excluded testimony, and passed in the dark of night close to sunrise. I encourage under your leadership to have an open and inclusive process including citizens, police professionals, academics and other key stakeholders. The issues surrounding race and justice go far beyond the police officers in this Commonwealth and the narrow focus on our profession will not provide the results which our communities deserve. I have already begun to hear from some Officers who feel they are being scapegoated and in some cases beginning to think about retirement or changing careers since they feel their family’s financial stability will be put at risk by the bill in its current form.
Please know that I concur with the Massachusetts Chiefs of Police Association’s thoughts which are as follows:
“The list that follows corresponds to the Section Numbers in Senate 2820 with the applicable line numbers:
• SECTION 4 (line 230): Under (IV), the provision states that there shall be training in the area of the “history of slavery, lynching, racist institutions and racism in the United States.” While we certainly welcome any and all training that enhances the professionalism and understanding of our officers, we are somewhat perplexed as to why law enforcement will now be statutorily mandated to have such a class to the exclusion of any other government entity?
One would believe that based on this particular mandate that the issue of what is inferred to as “racist institutions” is strictly limited to law enforcement agencies which aside from being incredibly inaccurate is also insulting to police officers here in the Commonwealth.
• SECTION 6 (line 272): In terms of the establishment of a POST (Peace Officer Standards and Training) Program, the various police chief’s organizations here in our state wholeheartedly support the general concept. That said, the acronym of POSAC (Police Officer Standards Accreditation and Accreditation Committee) is causing significant confusion both in this bill and in the Governor’s Bill. POST has nothing to do with Accreditation per se but has everything to do with Certification – and by implication “De-certification”. In this state, there currently exists a Massachusetts Police Accreditation Commission (MPAC) for over 20 years which is made up of members of Law Enforcement (Chiefs, Ranking Officers), Municipal Government, and Colleges/Universities (Chiefs) in which currently 93 police agencies are accredited based on the attainment of national standards modeled from the Commission on Accreditation for Law Enforcement Agencies (CALEA). Utilizing the word “Accreditation” in the title is definitely misleading and should be eliminated. To the best of our knowledge 46 other states use the acronym POST which seems to work without any problems or a need to create a new description of the important program.
• SECTION 6 (line 282): The Senate Bill states that POSAC shall be comprised of “14 members”, however as outlined there are actually 15 positions. The MCOPA is strongly advocating for two (2) seats on the POSAC to be appointed by the MCOPA Executive Committee.
• SECTION 6 (line 321) : It appears from the language of the POSAC provision that the committee shall have the power to conduct what is referred to as “independent investigations and adjudications of complaints of officer misconduct” without any qualifying language as to how that would be implemented in terms of what type of alleged misconduct (law violations, use of force, injury, rude complaints, etc.) and when and under what circumstances will adjudications be subject to review resulting in a proposed oversight system that could go down the slippery slope of becoming arbitrary and capricious at some point and subject to a high level of scrutiny and criticism.
• SECTION 10(c) (line 570): Section 10 of “An Act to Reform Police Standards and Shift
Resources to Build a more Equitable, Fair and Just Commonwealth that Values Black Lives and Communities of Color” (the Act) is problematic, not only for law enforcement in the Commonwealth, but all public employees. In particular, Section 10 calls for a re-write of the existing provisions in Chapter 12, section 11I, pertaining to violations of constitutional rights, commonly referred to as the Massachusetts Civil Rights Act (MCRA). The MCRA is similar to the provisions of 42 U.S.C. § 1983 (setting for a federal cause of action for a deprivation of statutory or constitutional rights by one acting under color of law), except however, that the provisions of the MCRA as it exists today, does not require that the action be taken under color of state law, as section 1983 does. See G.L. . 12, § 11H. Most notably, Section 10 ofthe Act would change that, and permit a person to file suit against an individual, acting undercolor of law, who inter alia deprives them of the exercise or enjoyment of rights secured by the constitution or laws of the United States or the Commonwealth of Massachusetts. By doing so, the Senate is attempting to draw the parallel between the federal section 1983 claim and the state based MCRA claims. The qualified immunity principles developed under section 1983 apply equally to claims under the MCRA. See Duarte v. Healy, 405 Mass. 43, 46-48, 537 N.E.2d 1230 (1989). “The doctrine of qualified immunity shields public officials who are performing discretionary functions, not ministerial in nature, from civil liability in § 1983 [and MCRA] actions if at the time of the performance of the discretionary act, the constitutional or statutory right allegedly infringed was not ‘clearly established.'” Laubinger v. Department of Rev., 41 Mass. App. Ct. 598, 603, 672 N.E.2d 554 (1996), citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 SCt.2727, 73 L.Ed.2d 396 (1982); see Breault v. Chairman of the Bd. of Fire Commrs. Of Springfield, 401 Mass. 26, 31-32, 513 N.E.2d 1277 (1987), cert. denied sub nom. Forastiere v. Breault, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988); Duarte v. Healy, supra at 47-48, 537 N.E.2d 1230.
In enacting the Massachusetts Civil Rights Act, the Legislature intended to adopt the standard of immunity for public officials developed under section 1983, that is, public officials who exercised discretionary functions are entitled to qualified immunity from liability for damages. Howcroft v. City of Peabody, 747 N.E.2d 729, Mass. App. 2001. Public officials are not liable under the Massachusetts Civil Rights Act for their discretionary acts unless they have violated a right under federal or state constitutional or statutory law that was “clearly established” at the time. Rodriguez v. Furtado, 410 Mass. 878, 575 N.E.2d 1124 (1991); Duarte v. Healy, 405 Mass. 43, 537 N.E.2d 1230 (1989). Section 1983 does not only implicate law enforcement personnel. The jurisprudence in this realm has also involved departments of social services, school boards and committees, fire personnel, and various other public employees. That being said, if the intent of the Senate is to bring the MCRA more in line with section 1983, anyone implicated by section 1983, will likewise be continued to be implicated by the provisions of the MCRA. Notably, the provisions of the MCRA are far broader, which should be even more cause for concern for those so implicated.
Section 10 of the Act further sets for a new standard for the so-called defense of “qualified immunity.” Section 10(c) states that “In an action under this section, qualified immunity shall not apply to claims for monetary damages except upon a finding that, at the time the conduct complained of occurred; no reasonable defendant could have had reason to believe that such conduct would violate the law”
This definition represents a departure from the federal standard for qualified immunity, although the exact extent to which is departs from the federal standard is up for debate, at least until the SJC provides clarification on it. The federal doctrine of qualified immunity shields public officials of all types from liability under section 1983 so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800 (1982). Stated differently, in order to conclude that the right which the official allegedly violated is “clearly established,” the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Anderson v. Creighton, 483 U.S. 635 (1987). It protects all but the plainly incompetent and those who knowingly violate the law. Malley v.Briggs, 475 U.S. 335 (1986). As a result, the standard sought to be created under Section 10 of the Act would provide public employees with substantially less protection than that afforded under the federal standard.
“Qualified immunity balances two important interests – the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.Callahan, 555 U.S. 223 (2009).
Furthermore, although the Senate’s version of “qualified immunity” would only apply to state-based claims under the MCRA, what Section 10 proposes is fairly similar to that proposed by the 9th Circuit Court of Appeals in various decisions. In those instances where the 9th Circuit sought to lower the standard applicable to qualified immunity, the U.S. Supreme Court has squarely reversed the 9th Circuit, going so far as scolding it for its attempts to do so. See Kisela v. Hughes, 138 S.Ct. 1148 (2018); City of Escondido v. Emmons, 139 S.Ct. 500 (2019).
Although legal scholars and practitioners have a grasp as to the meaning of qualified immunity as it exists today, uncertainty will abound if this standard is re-written, upending nearly fifty years of jurisprudence. Uncertainty in the law can only guarantee an influx in litigation as plaintiffs seek to test the new waters as the new standard is expounded upon by the courts.
• SECTION 39 (line 1025): The provision to inform both the appointing authority and the local legislative body of the acquisition of any equipment and/or property that serves to enhance public safety makes perfect sense. That said, to have a public hearing available for all in the general public to know exactly what equipment the police departments may or may not possess serves to put communities in jeopardy in that those with nefarious motives will be informed as to what equipment that the department has at its disposal. This is very dangerous.
• SECTION 49 (line 1101-1115): This provision prevents school department personnel and school resource officers (who actually work for police departments), from sharing information with law enforcement officers – including their own agency – when there are ongoing specific unlawful incidents involving violence or otherwise. This quite frankly defies commonsense. School shootings have been on the rise since 2017. Did the Senate quickly forget about what occurred in Parkland, Florida on February 14, 2018? The learning environment in our schools must continue to be safe and secure as possible and information sharing is critical to ensuring that this takes place. Public Safety 101.
• SECTION 50 (line 1116): There seems to be a slight nuance to the amended language to Section 37P of Chapter 71 replacing “in consultation with” to “at the request of.” Many police departments have had school resource officer programs in this state for 25 years or longer. The only reason why officers are assigned to the schools are because they have been “requested” to be there by the school superintendents – period. The reality is that many school districts even reimburse the police budgets for the salaries of these officers who serve as mentors for these young middle and high school students. If the Senate is being told that police chiefs are arbitrarily assigning officers to schools without first receiving a specific request from the school superintendents, they are being misled. The 2018 Criminal Justice Reform Act has very specific language that outlines the qualifications of an SRO, the joint performance evaluations that are to be conducted each year, the training that they shall have and the language specific MOUs that must exist between the Schools and the Police Department. We are very confused as to why this provision needs to be included.
• SECTION 52 (lines 1138-1251: There are several recommended changes to data collection and analysis as it pertains to motor stopped motor vehicles and pedestrians in this section. The Hands Free/Data Collection Law was signed into law only a few months ago before the onset of the pandemic. The new law contains a comprehensive system of data collection, benchmarking, review, analyses and potential consequences. While we continue to welcome data that is both accurate and reliable, the issue pertaining to the classification of an operator’s race has still yet to be resolved. Before any data from calendar year 2020 has yet to be collected by the RMV and subsequently analyzed by a College/University selected by the Secretary of EOPSS, these provisions now look to complicate the matter even further before a determination has actually been made as to whether any problem of racial or gender profiling actually exists here in our state. We won’t belabor the point, but this language appears to be what did not make its way into the Hands-Free Law which as you know was heavily debated for several months based strictly on the data collection component.
• SECTION 55 (line 1272)
To be clear, we do not teach, train, authorize, advocate or condone in any way that choke holds or any type of neck restraint that impedes an individual’s ability to breathe be used during the course of an arrest or physical restraint situation. That said, we respect the discussion and concern pertaining to what is now a national issue based on the tragedy in Minneapolis. Under part (d) the language states that “[a] law enforcement officer shall not use a choke hold. […].” What should also be included is a commonsensical, reasonable and rational provision that states, “unless the officer reasonably believes that his/her life is in immediate jeopardy of imminent death or serious bodily injury.” There needs to be a deadly force exception to eliminate any possible confusion that this could cause for an officer who is in the midst of struggling for their life and needs to avail themselves of any and all means that may exist to survive and to control the subject. This is a reasonable and fairly straightforward recommendation.
• [Recommended New Section] Amends GL Chapter 32 Section 91(g): In order to expand the hiring pool of trained, educated, qualified and experienced candidates with statewide institutional knowledge for the Executive Directors’ positions for both the Municipal Police Training Committee as well as the newly created POSAC (or POST), the statute governing the payment of pensioners for performing certain services after retirement, shall be amended to allow members of Group 4 within the state retirement system to perform in these two (2) capacities, not to exceed a three (3) year appointment unless specifically authorized by the Governor.”
In closing, I know the days ahead of you will be challenging, I implore you to take the time to accumulate facts and utilize them during your deliberations. I know that the Concord Police Department and those throughout the Commonwealth will continue to deliver exceptional service to our communities. Please feel free to contact me if I can be of any assistance.
Joseph F. O’Connor
Chief of Police
cc. Representative Tami Gouveia <[email protected]”