New Use of Force Rules – Will Brownsberger

The conference committee report for S2963, An Act relative to justice, equity and accountability in law enforcement in the Commonwealth creates a new statutory framework, where none currently exists, to govern use of force by law enforcement. Currently, use of force rules are established through case law and articulated and refined in the Massachusetts State Police’s use of force policy and in the use of force rules taught by the Massachusetts Police Training Committee. The chart below compares use of force rules set out in the Municipal Police Training Committee materials and in the State Police’s policy with those articulated in the conference committee report.

In some instances, the conference committee report’s proposed standards correspond with existing standards, while in others, they propose to create standards where none exist or propose to limit existing bases for using force. Specifically, the conference committee report proposes to do the following to existing standards:

De-escalation is currently emphasized both in police training and policy. The conference committee report proposes to require explicitly, by statute, de-escalation techniques first, whenever feasible, prior to using force.
The conference committee report imposes a new standard that in the case of using force to prevent imminent harm, the amount of force used must be proportionate to the threat of imminent harm.
The conference committee report would render the following insufficient for use of deadly force: stopping someone from escaping or apprehending someone for a felony involving use or threatening use of force, unless the officer did so to meet a need to prevent imminent harm to a person and the amount of force used was proportionate to the threat of imminent harm. This represents a divergence from existing standards, which would find such predicates sufficient for use of deadly force.
The conference committee report creates a statutory framework to limit the use of canines, tear gas, chemical weapons, and rubber pellets, imposing a new legal framework for the deployment of such weapons. The MPTC does not train in the use of canines, tear gas, or chemical weapons. Both the MPTC and the State Police’s use of force policy do provide guidance for law enforcement officers on the use of OC spray, more commonly known as pepper spray.
The conference committee report bans chokeholds (defined as “the use of a lateral vascular neck restraint, carotid restraint or other action that involves the placement of any part of law enforcement officer’s body on or around a person’s neck in a manner that limits the person’s breathing or blood flow with the intent of or with the result of causing bodily injury, unconsciousness or death”) by law enforcement. It further bans law enforcement training in any “lateral vascular neck restraint, carotid restraint or other action that involves the placement of any part of law enforcement officer’s body on or around a person’s neck in a manner that limits the person’s breathing or blood flow.” Currently, neither the MPTC nor the state police train individuals in the use of chokeholds, so this statutory mandate banning such training would not change existing training practice. Chokeholds are not, however, explicitly banned for use by law enforcement- so this proposed ban would represent a change to existing law.
The conference committee report creates a statutory duty to intervene for law enforcement in the case of observing another officer using physical force beyond that which is necessary or objectively reasonable based on the totality of the circumstances, which is largely consistent with bystander officers’ obligation to intervene to prevent use of excessive force established in case law.
The conference committee report creates a new statutory standard for firing at a fleeing motor vehicle, largely consistent with existing state police policy but adding a new element of proportionality.
The conference committee report limits the use of no-knock warrants to instances in which they would prevent the endangerment of the life of an officer or another person and when there is no reason to believe senior citizens or children are present.
The conference committee report creates an affirmative duty for police departments to coordinate in good faith with organizers in advance of mass demonstrations.

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	Municipal Police Training Committee Training Materials on Use of Force	Massachusetts State Police Use of Force Policy	Conference committee report

	Municipal Police Training Committee Training Materials on Use of Force	Massachusetts State Police Use of Force Policy	Conference committee report
Use of Force	Under Julian v. Randazzo, 380 Mass. 391 (1980) police may use force that is reasonably necessary to: take someone into custody overcome resistance to arrest; prevent an escape or recapture an escapee, or protect officers and others from harm before, during, and after the arrest	Members shall use, or are authorized to use, only that force which is objectively reasonable to -Effect an arrest; -Restrain or subdue an individual resisting a lawful seizure; or -Protect themselves or others from physical harm. If feasible, some warning shall be given before any use of force.	"A law enforcement officer shall not use physical force upon another person unless de-escalation tactics have been attempted and failed or are not feasible based on the totality of the circumstances and such force is necessary to: (i) effect the lawful arrest or detention of a person; (ii) prevent the escape from custody of a person; or (iii) prevent imminent harm and the amount of force used is proportionate to the threat of imminent harm; provided, however, that a law enforcement officer may use necessary, proportionate and non-deadly force in accordance with the regulations promulgated by the committee on police training and certification pursuant to subsection (d) of section 15." Changes of note to use of force standards set out by the conference committee report include the following: it creates a statutory framework for use of force; de-escalation tactics are required if feasible; the force used in case of imminent harm must be proportionate to threat of imminent harm; force may be used to effect a lawful arrest. Additional standards for necessary, porportionate, and non-deadly use of force will be promulgated by regulation and it remains to be seen how they compare to existing practice.
Use of Non-Deadly Force	"Non-deadly force is neither intended nor likely to cause serious bodily injury or death."Commonwealth v. Cataldo, 423 Mass. 318 (1996). The Commonwealth standard for using non-deadly force is covered under Commonwealth v. Klein (372 Mass. 823; 1977). Police officers may use non-deadly force when: The officer believes force is needed immediately to make a lawful arrest; The officer makes known the purpose of the arrest or believes that it is otherwise known by the suspect or cannot reasonably be made known to the suspect; and When the arrest is made under a warrant, the warrant is valid or believed to be valid by the officer.	"Less lethal force" is defined as "Use of force that is not intended to cause serious bodily harm/serious physical injuries or death." The policy outlines an array of tools for non-deadly force that may be utilized depending on the behavior of the subject.	Because the conference committee report does not create a separate standard for "use of non-deadly force" as opposed to "use of force," the statutory standards for use of non-deadly force can be considered equivalent to those for use of force. Some specific uses of non-deadly force will be articulated by regulation authorized by the conference committee report. See the cell above for analysis.
Use of Deadly Force	Under Commonwealth v. Klein, Massachusetts police officers may use deadly force when requirements above for non-deadly force are met and: The arrest is for a felony; The officer believes deadly force, if used, will not create a substantial risk of injury to innocent persons; and The crime involves conduct including the use or threatened use of deadly force, or there is a substantial risk that the person to be arrested will cause death or serious bodily injury if his apprehension is delayed.	"Lethal force" is defined as "Use of force intended to inflict serious bodily harm/serious physical injuries or death." Members authorized to use lethal force to protect themselves or others from an immediate threat of death or serious bodily harm. [A member is] authorized to prevent the escape of a suspect when the officer has probable cause to believe that -The arrest is for a felony; and -The member believes that the force employed creates no substantial risk of injury to innocent persons; and either: 1. The crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or 2. There is a substantial risk that the person to be arrested will cause death or serious bodily harm/serious physical injuries in the suspect's apprehension is delayed; and -If feasible, some warning has been given.	"A law enforcement officer shall not use deadly force upon a person unless de-escalation tactics have been attempted and failed or are not feasible based on the totality of the circumstances and such force is necessary to prevent imminent harm to a person and the amount of force used is proportionate to the threat of imminent harm." Changes of note to use of deadly force standards made by the conference committee report include the following: de-escalation tactics are required if feasible; and stopping someone from escaping or apprehending someone for a felony involving use of threatening use of deadly force are not sufficient grounds for use of deadly force absent the need to prevent imminent harm to a person with the amount of force used being proportionate to the threat of imminent harm.
Canines, Tear Gas, Chemical Weapons, Rubber Pellets	Not taught by MPTC. MPTC DOES teach standards for use of "OC spray," more commonly known as pepper spray, which can be projected up to 20 feet by way of a fog application.	No mention in State Police Use of Force Order. Does mention OC spray, which may be used in situations involving -Assaultive subjects; or -Actively resistant subjects when 1) Verbal commands have failed to bring about compliance; and 2) Subject has signaled their intentions to actively resist. OC Spray shall not be used on passive resisters who offer NO physical resistance.	"A law enforcement officer shall not discharge or order the discharge of tear gas or any other chemical weapon, discharge or order the discharge of rubber pellets from a propulsion device or release or order the release of a dog to control or influence a person’s behavior unless: (i) de-escalation tactics have been attempted and failed or are not feasible based on the totality of the circumstances; and (ii) the measures used are necessary to prevent imminent harm and the foreseeable harm inflicted by the tear gas or other chemical weapon, rubber pellets or dog is proportionate to the threat of imminent harm." Changes of note implemented by the conference committee report include the following: the development of a statutory framework limiting the use of dogs, tear gas, chemical weapons, and rubber pellets; and the requirement of de-escalation tactics in advance if feasible, as well as the requirement that such tactics were necessary to prevent imminent harm and the foreseeable harm inflicted by the tear gas or other chemical weapon, rubber pellets or dog is proportionate to the threat of imminent harm. It further creates a statutory requirement for an officer's appointing agency to file a report with the POST Commission regarding the use of canines, tear gas, chemical weapons, or rubber pellets.
Chokeholds	No training in use of chokeholds (but neither are chokeholds banned).	"Any technique or hold that is, by application or duration, intended to prevent an individual's ability to breathe or prevent blood flow to an individual's head in a manner the member knows or should reasonably know will create a substantial risk of death or serious bodily harm constitutes lethal force." No training in use of chokeholds.	"A law enforcement officer shall not use a chokehold. A law enforcement officer shall not be trained to use a lateral vascular neck restraint, carotid restraint or other action that involves the placement of any part of law enforcement officer’s body on or around a person’s neck in a manner that limits the person’s breathing or blood flow." Changes of note implemented by the conference committee report include the following: it bans the use of chokeholds, as defined above and prohibits the training of lateral vascular neck restraints, carotid restraint, or other action limiting the person's breathing or blood flow by a law enforcement officer.
Duty to Intervene	Comm. v. Adams, 416 Mass. at 565 (Bystander officer liability) After a car chase that included eight police cruisers, there were ten officers surrounding plaintiff's vehicle. Plaintiff was not violent, but refused to exit his vehicle. Two of the officers dragged plaintiff out through a window, and with an additional officer, proceeded to beat plaintiff. The other officers did not intervene in any way. The SJC held that because defendant bystander officers shared the mental state of anger and frustration resulting from the chase, and were fully aware, and approved, of the excessive force taking place, that they were not only liable simply due to their failure to intervene to protect plaintiff's civil rights, but also as joint tortfeasors. Restating - SJC has held that additional officers who are present at a scene, but do not actually use any force on a victim, may still be held liable for excessive force used by other officers. Com. v. Adams, 416 Mass. 558, 564-65 (1993) (finding the failure of the nonbattering officers to intervene was itself a violation of plaintiff's civil rights, and holding all the officers present personally liable). Learning point: Bystander officers (responding backup officers) have an obligation to prevent excessive force from being used by other officers.	If a member observes another member engaging in an unauthorized or excessive use of force, the observing member has an affirmative duty to intervene and attempt to stop the unauthorized use of force.	"(a) An officer present and observing another officer using physical force, including deadly force, beyond that which is necessary or objectively reasonable based on the totality of the circumstances, shall intervene to prevent the use of unreasonable force unless intervening would result in imminent harm to the officer or another identifiable individual. (b) An officer who observes another officer using physical force, including deadly force, beyond that which is necessary or objectively reasonable based on the totality of the circumstances shall report the incident to an appropriate supervisor as soon as reasonably possible but not later than the end of the officer’s shift. The officer shall prepare a detailed written statement describing the incident consistent with uniform protocols. The officer’s written statement shall be included in the supervisor’s report. c) A law enforcement agency shall develop and implement a policy and procedure for law enforcement personnel to report abuse by other law enforcement personnel without fear of retaliation or actual retaliation." Change of note to duty to intervene by the conference committee report: creates a statutory duty to intervene and statutory reporting requirements, as well as the statutory requirement that law enforcement agencies develop and implement a policy and procedure for law enforcement personnel to report abuse by other law enforcement personnel without fear of retaliation or actual retaliation.
Shooting at a moving vehicle	N/a.	A member shall not discharge a firearm: . . . -To merely disable a fleeing vehicle; -At a moving vehicle- UNLESS: An occupant uses or threatens to use immediate lethal force directed at the member or another person to cause them serious bodily harm/serious physical injury or death. Members shall: -As a first course of action, remove themselves from the path of a moving vehicle or position of vulnerability; and -Understand and consider that: 1. Bullets fired at moving vehicles are extremely unlikely to stop or disable the motor vehicle; 2. Bullets fired may miss the intended target or ricochet and cause injury to themselves, other officers, or innocent persons; or 3. If the bullets disable the operator, the vehicle may crash and cause injury to themselves, other officers, or innocent persons.	"A law enforcement officer shall not discharge any firearm into or at a fleeing motor vehicle unless, based on the totality of the circumstances, such discharge is necessary to prevent imminent harm to a person and the discharge is proportionate to the threat of imminent harm to a person." Changes of note: To existing state police standard, adds proportionality as a requirement for officers to bear in mind. Creates new statutory standard for state and municipal law enforcement officers alike.
Duty to coordinate in good faith with organizers of mass demonstration	N/a.	N/a.	Creates new statutory requirement for police departments with advance knowledge of a planned mass demonstration to attempt in good faith to communicate with organizers of the event to discuss logistical plans, strategies to avoid conflict and potential communication needs between police and event participants.
No-knock warrants	Na.	N/a.	Limits the issuance of no-knock warrants to instances where the life of the officer or someone else would be at risk if they were to announce their presence. Prohibits the use of no-knock warrants where minors or seniors are reasonably believed to be in the home. Allows an officer to enter without knocking to prevent a "credible risk of imminent harm." Makes inadmissible evidence seized in violation.

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Published by Anne Johnson Landry