Biased Policing in Massachusetts and the Impact of Commonwealth v. Long and the New POST Commission

Policing in the United States has come under intense scrutiny following the murder of George Floyd, a Black man, on May 25, 2020, during an arrest by former Minneapolis, Minnesota Police Officer Derek Chauvin. This incident reinvigorated concerns among large segments of the population and political leadership of systemic racism among the police forces of this country resulting in widespread nationwide protests, calls for “defunding” police, and legislative proposals to increase oversight and training of police and limit qualified immunity for police officers.?

Major reforms have recently occurred in Massachusetts that have begun a transformation in policing in the Commonwealth to ensure greater accountability for police conduct, particularly in the areas of police racial profiling and bias-based policing.

An Act Relative to Justice, Equity, and Accountability in Law Enforcement in the Commonwealth, Chapter 253 of the Acts of 2020 (The Act) went into effect just days ago on July 1, 2021. Its implementation has wide-ranging implications for departments including the creation of state Peace Officer Standards and Training?(POST) Commission with power to independently investigate police misconduct. The Post Commission has been given ?subpoena power and provides for several mandated changes to police procedures including banning chokeholds, establishing a duty for officers to intervene in and report on cases of excessive force, and the requirement that all police officers be certified by the POST Commission, which has the authority to decertify police officers. ?Our training program will address all aspects of The Act with a specific focus on the prohibition of bias-based policing.?Any police officer found by the POST Commission to have engaged in biased policing will be decertified as a police officer and lose their common-law statutory immunity as a defense to law suits alleging violation of civil rights.

The Massachusetts Supreme Judicial Court (SJC) case of v. Long, 485 Mass. 711 (2020), established a revised test for defendants seeking to suppress evidence based on claims that the traffic stop leading to criminal charges was based on racial profiling and violated the defendants’ equal protection rights.?This case revised Commonwealth v. Lora, 451 Mass. 425 (2008), which held selective enforcement of the laws based on race violates equal protection and that the remedy for a successful motion of selective enforcement is suppression of the evidence seized resulting from the stop. The Court in Lora held that statistical evidence of a police officer’s stops, showing disparity of stops based on race, can be used to create a reasonable inference of selective enforcement, which then shifts the burden on the Commonwealth to rebut the inference.

In Long, the SJC observed that in the twelve years since Lora, the SJC was aware of only one successful motion to suppress under Lora and that the burden on defendants under Lora is too high in limiting evidence of selective enforcement to statistical evidence.?The revised test in Long allows defendants to present evidence not normally admissible in a trial and allows broad discovery requests related to the officers’ conduct. The judge is instructed to apply a totality of the circumstances analysis using factors such as the officers’ patterns of enforcement and nature of duties, the sequence of events prior to the stop, the manner of the stop, the safety interests in enforcing the violation, and the police department’s polices and procedures regarding traffic stops. ?

The Long case is also remarkable in that it judicially acknowledges the effects of implicit bias on an officer’s conduct: “The Commonwealth offered the testimony of the arresting officers, who testified that they did not conduct the stop due to the defendant's race. Because implicit bias may lead an officer to make race-based traffic stops without conscious awareness of having done so, such a simple denial is insufficient to rebut the reasonable inference.” This observation of the SJC will have the effect on judges in suppression hearings such that judges will give little or no weight to a police officer’s testimony that race played no role in initiating the stop.

It is important to note that a motion to suppress that is granted under Long based on the police officer’s implicit bias, that is to say, unintentional act of bias, could set in motion a review of the officer’s conduct by the POST Commission with the result being the decertification of the officer and loss of qualified immunity.

The numerous discovery requests now being made throughout the Commonwealth under Long and the interpretation of the scope of the requests and their meaning in determining if an inference of selective enforcement is successful and, if successful, whether the Commonwealth rebuts the inference, has created troubling unresolved questions for prosecutors and police departments in responding to discovery requests and addressing the discovery material in suppression hearings.

In order for a department to ensure it is effectively responding to implicit bias, we are proposing a one-day training program for all ?officers on understanding, identifying, and preventing biased policing. The second part of the training program will be for all supervisors and command staff officers that will focus on the use of data collection and analysis to identify potential biased policing, and methods for counseling and changing behavior. ?If implicit bias is left unchecked, there is the potential under the combined impact of The Act and Long, for widespread dismissal of criminal cases from resulting traffic stops, and suspensions and revocations of police officer certifications.??

In order to effectively identify and prevent biased policing and to better defend motions to suppress under Long, we propose a consultancy to review your present traffic stop data system and examine the need for changes to: statistical thresholds on stops and searches for intervention, minimum number of events for statistical analysis, collection of specific data points, frequency and nature of supervisory review, and external demographic benchmarks. ?

In addition, the Long decision has indicated the police department’s polices and procedures regarding traffic stops are relevant evidence as to whether the traffic stop was motivated by racial bias. We propose a consultancy to review all department policy and procedure documents concerning traffic stops and racial profiling. This is especially important due to the changes in the legal landscape resulting from The Act and the Long decision.

Please contact us for more information or with any questions.

Sincerely,

Peter DiDomenica

President

Quantum Innovation Corporation

www.quantuminnovationcorp.com

Email: [email protected]

Tel. 774-287-8171

Tom Robbins is an attorney, former Colonel/Superintendent of the Massachusetts State Police, and former Executive Director of Public Safety and Chief of Police for a major university in Massachusetts. As the Commandant of the Massachusetts State Police Academy and later as Colonel/Superintendent of the Massachusetts State Police, Tom directed and oversaw the creation of the agency’s biased policing and racial profiling training and traffic stop data collection programs. As the agency’s chief executive, Tom was a tireless advocate of fair and impartial policing responsible for is robust policies, training, and data analysis related to fair and impartial policing that made the State Police a leader in these efforts and which, to this day, are still serving the State Police and the community well.?

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Peter DiDomenica is an attorney and former lieutenant with the Massachusetts State Police. As a member of the State Police, Peter designed and delivered the biased policing and racial profiling training program for the entire State Police starting in 2000 and designed its traffic stop data collection and analysis program used to identify and prevent discriminatory enforcement that is still used to the present time. In the early 2000’s Peter was a key member of Executive Office of Public Safety and Security (EPOS’S) working groups that designed and delivered statewide training programs on biased policing and racial profiling. Peter also served as an accreditation manager for administering the Massachusetts Police Accreditation Commission (MPAC) and Commission on Accreditation for Law Enforcement Agencies (CALEA) police accreditation programs for a major university police department.?