Proposed Use of Force Rules

The Senate’s Reform, Shift, + Build Act 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 proposed in the Senate bill.

In some instances, the Senate bill’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 Senate bill proposes to do the following to existing standards:

  • De-escalation is currently emphasized both in police training and policy. The Senate bill proposes to require explicitly, by statute, de-escalation techniques first, whenever feasible, prior to using force.
  • The Senate bill imposes a new standard that in the case of using force to prevent imminent harm, the amount of force used must be proportional to the threat of imminent harm.
  • The Reform-Shift-Build Act renders as insufficient for use of deadly force stopping someone from escaping or apprehending someone for a felony involving use or threatening use of force, absent the need to prevent imminent harm to a person with the amount of force used being proportional to the threat of imminent harm. This represents a divergence from existing standards, which would find such a predicate sufficient for use of deadly force.
  • The Reform-Shift-Build Act 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 Reform-Shift-Build Act bans choke holds by law enforcement and bans law enforcement training in choke holds or in any lateral vascular neck restraints, carotid restraint, or similar action limiting the person’s breathing or blood flow. Currently, neither the MPTC nor the state police train individuals in the use of choke holds, so this would statutory mandate banning such training would not change existing training practice. Choke holds are not, however, explicitly banned for use by law enforcement- so this proposed ban would represent a change to existing law.
  • The Reform-Shift-Build Act 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.

 Municipal Police Training Committee Training Materials Massachusetts State Police Use of Force Policy Reform, Shift, + Build Act
Use of ForceUnder 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 of a person; (ii) prevent the escape from custody of a person; or (iii) prevent imminent harm and the amount of force used is proportional to the threat of imminent harm.



Changes of note to use of force standards set out by the Reform, Shift, + Build Act 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 proportional to threat of imminent harm; force may be used to effect a lawful arrest.
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 Reform, Shift, + Build Act 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. See the cell above for analysis.
Use of Deadly ForceUnder 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” 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.



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 physical 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 proportional to the threat of imminent harm.



Changes of note to use of deadly force standards made by the Reform, Shift, + Build Act 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 proportional to the threat of imminent harm.
Use of Deadly Force

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

Verbal commands have failed to bring about compliance; and

Subject has signaled their intentions to actively resist.



OC Spray shall not be used on passive resisters who offer NO physical resistance.

(f) A law enforcement officer shall not discharge tear gas or any other chemical weapon, discharge rubber pellets from a propulsion device or release 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 Reform, Shift, + Build Act include the following: the development of a statutory framework limiting the use of canines, tear gas, chemical weapons, and rubber pellets; and the requirement of de-escalation tactics in advance if feasible.
Chokeholds Not taught (but not 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.”



Not taught.
(d) A law enforcement officer shall not use a choke hold. 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 Reform, Shift, + Build Act include the following: it bans the use of 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 unconsciousness or death,” and prohibits the training of lateral vascular neck restraints, carotid restraint, or similar action limiting the person’s breathing or blood flow by a law enforcement officer.
Duty to InterveneComm. 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. An officer present and observing another officer using physical force, including deadly physical 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.



Change of note to duty to intervene by the Reform, Shift, + Build Act: creates a statutory duty to intervene.

Published by Anne Johnson Landry

Anne works as Committee Counsel and Policy Advisor to Senator Brownsberger.

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