In major shift, Mass. AG’s office would get new role in police deadly force investigations under House reform bill

Attorney General Maura Healey.Steven Senne/Associated Press/file

In a major shift backed by House leaders, Attorney General Maura Healey’s office would gain a direct role in investigating deadly force cases involving police, an authority that under state law is reserved for local district attorneys, who often work with police they are tasked with investigating.

The proposal is one part of a sweeping, 129-page policing bill that was released Sunday by House leaders and that’s headed to the House floor starting Wednesday, roughly a week after the state Senate passed its own wide-ranging bill to tighten accountability of police statewide.

The House proposal would establish a seven-person Massachusetts Police Standards and Training Commission that would serve as the “primary civil enforcement agency” in the state, including setting training protocols and overseeing a new police certification system.

And in a departure from the Senate’s proposal, which sought to scale back the use of so-called qualified immunity for police, the House proposed tying it to the new licensing process, where officers would lose personal legal protections only in cases in which their conduct results in decertification.

The House sprawling proposal received a mix of cautious praise and criticism on Monday, though many advocates and police union officials say they were still digesting it.

But the proposal giving Healey’s office a more extensive role in deadly force cases quickly emerged as a sticking point with some prosecutors. The plan would mark a dramatic rewrite of the rules prosecutors and police have operated under for years, where the local district attorney investigates the use of deadly force by a police agency that their office works with on a daily basis — a situation critics view as an inherent conflict of interest.

The plan, according to a House official familiar with the legislation, would require the attorney general to be involved when deciding whether a deadly force case can be properly handled at the county level or be shifted to the attorney general’s office, which has the authority to use a grand jury to investigate crime statewide.

Under existing law, district attorneys can appoint a special prosecutor to handle the investigation or hand it off to a colleague from another county to avoid the appearance of a conflict of interest. Both approaches have been used.

The House proposal mandates the creation of a new Division of Police Standards and Professional Conduct Enforcement within Healey’s office, led by an assistant attorney general.

That person’s duties would include “investigating and prosecuting allegations of criminal offenses committed by officers,” as well as investigating and prosecuting instances in which police conduct results “in the death or serious bodily injury of another,‘' according to the bill.

State Representative Claire D. Cronin, the House chairwoman of the judiciary committee, said it was important to House leaders to ensure investigations into possible misconduct were free of any conflicts.

“By having the attorney general cover these investigations, it would add another layer of independence,” the Easton Democrat said.

Some of the state’s elected prosecutors pushed back. Cape and Islands District Attorney Michael O’Keefe criticized the plan, calling it “not well-thought out.”

“With all due respect, the attorney general’s office, they don’t do a lot of criminal work. That’s not what they do,” said O’Keefe, a Republican. “I hope this is a conversation starter and not the end product.”

Andrea Harrington, the Berkshire district attorney, said moving investigations of crimes in her district out of her office’s hands and to a statewide organization “undermines the will of the voters.”

“As the local, elected district attorney, I am accountable to my community to ensure independent investigations and fair prosecutions,” the Democrat said.

Norfolk District Attorney Michael Morrissey, a Democrat and former state lawmaker, offered cautious support for the idea but warned it could be costly should Healey’s office have to hire prosecutors and homicide detectives.

“But if the AG wants to invest in a good homicide prosecutor and do those cases, it could make a lot of sense,” he said.

A spokeswoman for Healey’s office said officials were still reviewing the bill.

The Massachusetts District Attorneys Association had already pushed back on a Senate-passed measure that — unlike the House proposal — would create a commission to investigate deadly force cases. The DA’s group warned the Senate approach could create probes that run simultaneously to the work of district attorneys, which it argued holds “exclusive jurisdiction to ‘direct and control’ death investigations.”

“We owe the victims of crime and their families a thorough meticulous investigation without the interference of a simultaneous inquiry,” Hampden District Attorney Anthony D. Gulluni, president of the association, said in a letter to House leaders before they released their version of the bill.

The bill is expected to draw a flood of amendments from lawmakers, who have tentatively scheduled debate for Wednesday and possibly Thursday, with the scheduled end of the formal legislative session looming on July 31.

While several aspects of the bill have drawn wide support — such as creating a certification system and banning the use of chokeholds — the intense debate of over how, and whether, to change state law around qualified immunity is expected to hang over the truncated discussions.

The Senate sought to curb the use of the legal doctrine, which often shields individual officers from legal claims of brutality or other misconduct, by allowing civil rights lawsuits if the officer should have reasonably known his or her conduct broke the law.

The House’s more narrow language, which would strip the immunity protection only in cases of decertification, rankled civil liberty advocates, who say it offered little new ground for potential victims to bring their own lawsuit.

“I appreciate the House leadership has actually acknowledged the problem of qualified immunity, but the fix doesn’t get to the heart of the problem,” said Carol Rose, executive director of the ACLU of Massachusetts.

Cronin, the House’s chairwoman on the judiciary committee and an attorney, described qualified immunity as a thorny issue that’s created “considerable confusion” even among legal experts. The House’s intent, she said, was to ensure any change affected only police, not other public employees, after several public unions complained the Senate language was far too broad.

“We made clear this doesn’t affect other city and town employees,” Cronin said.

Still, some police labor leaders viewed the House changes warily, even as they say they needed more time to understand all its details.

“Just because you lose your certification shouldn’t make you available to be sued,” said Eddy Chrispin, a Boston police sergeant and president of the Massachusetts Association of Minority Law Enforcement Officers. “As a Black man, I understand the desire to hold police officers accountable. And if this makes police officers more accountable, by all means. But we need to be careful.”