SENATE DOCKET, NO. 2050        FILED ON: 1/18/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1362

The Commonwealth of Massachusetts

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PRESENTED BY:

Michael J. Barrett

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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 to create uniform standards in use of force, increase transparency, and reduce harm.

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PETITION OF:

SENATE DOCKET, NO. 2050        FILED ON: 1/18/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1362

The Commonwealth of Massachusetts

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

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An Act to create uniform standards in use of force, increase transparency, and reduce harm.

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. Section 1 of chapter 124 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by adding the following subsections:-

(v) establish uniform minimum standards for state and county correctional facilities regarding entrance of cell procedures. The standards shall establish the process for: (i) an emergency entrance of cell procedure; and (ii) a planned entrance of cell procedure; provided that a planned entrance of cell procedure shall include a twenty-four hour cooling off period prior to any use of force whenever this would not place any person at risk of death or serious bodily injury and shall include intervention by a qualified mental health professional, as defined in section 1 of chapter 127, who shall actively seek to resolve the issue without use of force, before a correctional officer enters the cell.

The standards shall instruct superintendents of all institutions under the jurisdiction of the department of correction and the superintendents and keepers of jails and houses of correction that an emergency entrance of cell procedure shall only be used when time is of the essence where the failure to take immediate action would place a person in imminent risk of death or serious bodily injury. The standards shall further instruct that if emergency entrance of cell is being conducted because an inmate is attempting or committing suicide, chemical agents shall not be used.

The standards shall require correctional officers to wear a personal audio-video recording device attached to the officer’s clothing, helmet, or sunglasses that is capable of capturing video and audio recordings from the officer’s point of view, which shall be activated during planned entrance of cell procedures, emergency entrance of cell procedures and all other uses of force. A correctional officer shall be prohibited from viewing or listening to any video or audio recording prior to submitting a report regarding the use of force.  All video recordings from all activated personal audio-video recording devices, all fixed cameras and all handheld or other cameras which captured any part of any use of force incident shall be made available to any involved inmate to review upon their request and copies shall be provided to any person with the written release of any involved inmate.

The standards shall detail acceptable equipment for use during a planned entrance of cell procedure or an emergency entrance of cell procedure; provided that the standards shall prohibit the use of kinetic impact weapons and law enforcement K-9s.

(w) establish uniform minimum standards for all state and county correctional facilities governing the use of chemical agents. The standards shall: (i) identify all chemical agents which are deemed an acceptable use of force; (ii) establish protocols for situations when chemical agents may not be used, including but not limited to, on an inmate with intellectual disabilities, respiratory illnesses, or cardiac disease; (iii) define the required authorization for staff prior to the use of chemical agents, which shall include that whenever time permits mental health staff must make every effort to speak to the inmate and affirm that the inmate does not have a cognitive, psychiatric, or other disability or impairment inhibiting the inmate’s ability to understand or comply with staff orders; and (iv) establish protocols for decontamination of inmates as soon as possible following exposure to each type of chemical agent identified pursuant to clause (i), including but not limited to an opportunity for a shower and eye flush.

(x) establish uniform minimum standards for all state and county correctional facilities governing the use of restraint chairs, including but not limited to the following: (i) a restraint chair may only be used when it is the least restrictive means available to prevent substantial threat of imminent harm; (ii) an inmate confined to a restraint chair must be checked by medical staff and offered an opportunity to exercise at least every thirty minutes while in the restraint chair; (iii) an inmate may not be confined to a restraint chair any longer than the restraint chair remains the least restrictive means available to prevent substantial threat of imminent harm; (iv) a restraint chair may never be utilized automatically following a use of force, and the substantial threat of imminent harm that justifies use of the restraint chair must in all cases be documented in writing, with copies of the documentation provided to the inmate upon request or to any other person with release by the inmate.

(y) establish uniform minimum standards for all state and county correctional facilities governing the use of law enforcement K-9s, including but not limited to the following: (i) K-9s shall be under the control of their handlers at all times while on correctional facility property and shall never be permitted to roam freely on correctional facility property; (ii) K-9s shall be used only to search for contraband and to search for fleeing escapees, and only with prior approval by the Commissioner, Sheriff, Superintendent, or designee; (iii) K-9s shall not be used in any use of force situations, for monitoring inmate movement, or for routine internal patrol, except that K-9s may be utilized if necessary as part of a coordinated response by a tactical team to a major disturbance, defined as a riot situation or hostage situation where there is an immediate threat of death or serious bodily injury; (iv) Inmates shall be removed from any area where K-9s are conducting contraband searches, and all other reasonable efforts shall be made to minimize inmate contact with K-9s; (v) If a K-9 bites or otherwise apprehends a person, the incident must be documented in accordance with the correctional facility’s use of force reporting requirements.  Color photographs must be taken of any injuries sustained and the photos must be preserved in the original format for a period not less than ten years. All surveillance, handheld, body camera, or other video recording from the area of the incident must be preserved for a period of not less than ten years.

(z) establish uniform minimum standards for all state and county correctional facilities regarding use of force data requiring, at a minimum, the following data to be collected and provided to any person upon request as well as published, quarterly, on the agency’s website: (i) the number of incidents facility-wide, (ii) the number of incidents in restrictive housing, (iii) the number of incidents during mental health watches, (iv)  the number of incidents involving inmates who are being treated for psychiatric disabilities, (v) the number of incidents by race of involved inmates and by race of involved staff, (vi) the number of incidents resulting in injury to the inmate, (vii) the number of incidents resulting in injury to staff, (viii) the number of incidents involving use of chemical agents, (ix) the number of incidents involving use of restraint chair,  (x) the number of incidents involving use of any kinetic impact weapon, (xi) the number of incidents involving K-9s, and (xii) the number of incidents involving any other use of force tool.  Each data point shall include a breakdown by planned use of force, spontaneous cell entry and other use of force.

(aa) establish uniform minimum standards for transparency in use of force, including but not limited to the following: (i) An inmate and the inmate’s legally designated representative shall have the right to obtain a copy of all records relating to any use of force incident involving the inmate, including but not limited to written reports, investigations, video and audio recordings, and photographs;  (ii)  All such records are also public records, except that records access officers must redact the name and identifying information of any involved inmate before providing the records to any requestor who is not the involved inmate or who does not have a release from the involved inmate.