HOUSE DOCKET, NO. 1048        FILED ON: 1/15/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2068

 

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Carmine Lawrence Gentile

_________________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to establishing an independent review board for police conduct.

_______________

PETITION OF:

 

Name:

District/Address:

Carmine Lawrence Gentile

13th Middlesex


HOUSE DOCKET, NO. 1048        FILED ON: 1/15/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2068

By Mr. Gentile of Sudbury, a petition (accompanied by bill, House, No. 2068) of Carmine Lawrence Gentile relative to establishing an independent review board for police conduct.  Public Safety and Homeland Security.

 

The Commonwealth of Massachusetts

 

_______________

In the One Hundred and Ninety-First General Court
(2019-2020)

_______________

 

An Act relative to establishing an independent review board for police conduct.

 

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1.  Chapter 6 of the General Laws is hereby amended by inserting after section 178Q the following 2 sections:-

Section 176R.  (a) There is hereby established an Independent Police Conduct Review Board, hereinafter referred to as the board. The board shall be placed in the executive office of public safety and security but shall not be subject to the supervision or control of said office, or of any board, bureau, department or other center of the commonwealth, except as specifically provided in this section and section 176S.  In accordance with section 176T, the board shall investigate and adjudicate all instances in which a member of a law enforcement agency located within the commonwealth discharges a firearm and another person is shot, regardless of whether or not that person is killed or suffers serious bodily injury. 

(b) The board shall consist of the following 7 members: the president of the Massachusetts Coalition of Police, or his/her designee; one person appointed  by the Superintendent of the Massachusetts State Police; one person appointed by the Secretary of the Commonwealth,  one person appointed  by the State Auditor;  one person appointed by the Governor, who shall be a retired judge of the trial court; one person appointed by the Attorney General, who shall have experience prosecuting criminal cases in the Commonwealth; and one person appointed by the Chief Counsel of the Committee for Public Counsel Services, who shall have experience representing defendants in criminal cases in the Commonwealth.  The Governor’s appointee shall serve as chair.  

The board shall hold all such meetings and hearings as are necessary to accomplish its duties under this section.  Three members shall constitute a quorum.  Board member shall serve for terms of 5 years and may be removed for misconduct under the same terms and procedures by which members of the civil service commission may be removed. If any board member is unwilling or unable to serve, that member shall be replaced within 30 days.

Board members shall be compensated for their service at a rate to be determined by the attorney general, which shall not be less than the hourly rate paid to committee for public counsel services attorneys in cases in which they defend an individual against first degree murder charges; provided, that no board member who is also an employee of the commonwealth shall be compensated for his or her service. Board members shall be compensated for the time spent attending board meetings and the time spent in preparation for meetings. 

(c) The board shall employ an executive director, at least 2 staff attorneys, and such investigators and support staff as are reasonably necessary to accomplish its duties.  All employees of the board shall be selected by the chair of the board and shall serve at the pleasure of the chair.  Such positions shall be exempt from civil service laws.

The board may also investigate and adjudicate allegations of misconduct by a member of a law enforcement agency other than instances in which a person was shot by a member of a law enforcement agency.  The board shall appoint hearing officers to review such allegations of misconduct.  Any hearing officer so appointed shall be a member of the Massachusetts bar and shall be compensated at the same rate as compensated members of the board.

Section 176S. (a) A law enforcement agency shall report any instance in which a member of that law enforcement agency discharges a firearm and another person is shot, regardless of whether or not that person is killed or suffers serious bodily injury, to the Independent Police Conduct Review Board within 24 hours of the shooting.  The Independent Police Conduct Review Board, hereinafter the board, shall assign each reported incident a case number and an initial hearing date within 48 hours of receiving the report.

The board shall have the authority to issue subpoenas to obtain all documents, materials and witnesses relevant to a particular case and shall instruct a sheriff or constable to serve the same.  A subpoena may be issued by the chair or by any 2 board members acting concurrently. 

(b) Hearings of the board shall be conducted in accordance with the rules and procedures set out in chapter 30A; provided, however, that they shall be open to the public and shall be available for news broadcast or webcast. A board appointed staff attorney shall present all claims against an employee of a law enforcement agency involved in a shooting.  An attorney representing a private party shot by a member of a law enforcement agency or otherwise alleging that the employee of a law enforcement agency has acted inappropriately may, at the discretion of the chair of the board, present claims.  An employee of a law enforcement agency against whom claims are presented shall have the right to legal counsel. 

The board shall determine whether, based on all the evidence presented, a member of a law enforcement agency involved in an incident in which a person was shot, engaged in misconduct or otherwise acted inappropriately.  The burden of proving misconduct or inappropriate action shall be on the party alleging such behavior and shall be proven by a preponderance of the evidence. Notwithstanding any general or special law to the contrary, the board shall make findings of fact and rulings of law regarding any alleged misconduct or inappropriate action, which shall be final and binding for the purposes of any union grievances or disciplinary action pursuant to chapter 31. The authority of the board shall not be impaired by any collective bargaining agreement or other contract.

A hearing officer appointed pursuant to the second paragraph of subsection (c) of section 176R shall make findings of fact and may recommend rulings of law, which shall be submitted to the full board for review and final disposition. 

(c) A ruling by the board that a member of a law enforcement agency acted unlawfully, engaged in misconduct, or otherwise acted inappropriately in an instance in which the member of a law enforcement agency discharged his or her firearm and another person was shot shall result in the following: (1) termination of employment  and a ban on employment with any law enforcement agency in the commonwealth for a period of no less than 10 years; and (2) revocation of any license to carry a firearm, which shall not be renewable for a period of no less than 10 years. 

A ruling by the board that a member of a law enforcement agency engaged in misconduct or acted inappropriately other than in an instance in which a person was shot by a member of a law enforcement agency shall result in discipline of the member.  Such discipline shall not be less severe than a public reprimand and shall not be more severe than termination of employment.

The board may publicly recommend that a member of law enforcement agency subject to an adverse ruling under this subsection be criminally prosecuted.

(d)  Upon the application of the attorney general, a United States attorney, or a district attorney, the board may stay any proceeding pending completion of a criminal investigation stemming from the same incident.  A decision to stay or not stay a proceeding shall be reviewable by a judge of the superior court; provided that the judge may only overturn a decision upon a finding of an abuse of discretion by the board. 

(e)  A ruling by the board that a member of a law enforcement agency engaged in misconduct or other inappropriate action shall be subject to judicial review as provided in section 14 of chapter 30A.

Nothing contained in this shall preclude or impact a criminal prosecution. 

Nothing contained in this section shall impair or impact the rights of any person to pursue civil litigation to obtain compensatory or punitive damages or provide any qualified immunity. A proceeding pursuant to this section shall not impact or impair the rights of any person seeking compensation pursuant to chapter 258; provided, that any proceeding under this section shall toll any required notice period or statute of limitations under said chapter 258 for the duration of the proceeding. 

(f) Notwithstanding any general or special law to the contrary, a person presenting claims or evidence before the board shall be entitled to the protections of section 59H of chapter 231.

(g) A member of a law enforcement agency subject to an adverse ruling under this section shall be entitled to indemnity as available pursuant to all of chapter 258 except section 13 of said chapter 258. Notwithstanding any general or special law to the contrary, if a sum awarded by the board to compensate an estate for wrongful death or to compensate an injured person for past and future medical costs, lost earning capacity, scarring, deformities, loss of limbs or body parts, loss of function, loss of vision or of hearing or other physical or emotional losses exceeds $1,000,000, indemnity shall be limited to be 150 per cent of the sum awarded; provided, that this limit shall not apply to an award for pain and suffering or punitive damages.  Any award in excess of this limit shall be solely the responsibility of the member of a law enforcement agency subject to the adverse ruling.