Police departments in Massachusetts and around the nation face heightened scrutiny about racial bias in their stop-and-frisk and use-of-force procedures. Years of abusive practices, combined with videos of police killing unarmed Black men, have sparked protests and eroded trust between communities and the police. These protests, in turn, have inspired overdue conversations about race and policing.
Massachusetts lawyers and lawmakers must engage in this discourse. And technology, when supported by appropriate law reform, offers a way forward.
What the Law Says about Police-Civilian Encounters
In theory, the Constitution protects people from police actions undertaken for no good reason or, worse yet, for discriminatory reasons. Although a police officer may engage anyone in conversation, an officer may not “stop” someone without individualized and reasonable suspicion of the person’s involvement in a crime. Terry v. Ohio, 392 U.S. 1 (1968). Even then, the officer may not lay hands on the civilian—for example, by conducting a “frisk”—without reasonable suspicion that the person is armed and dangerous. Id.
Further, although the United States Supreme Court has authorized police actions that are merely pretextual, officers may not undertake actions based on race. Whren v. United States, 517 U.S. 806 (1996). For example, if a driver is speeding, an officer may stop his car even if the officer is really interested in looking for drugs. But a speeding car cannot justify a traffic stop if the officer is really conducting it because the driver is Black.
Former Attorney General Eric Holder reiterated these principles in December 2014 when he issued new guidance on racial profiling. Under this guidance, when federal officers conduct traffic stops and other civilian encounters, they “may not use race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity to any degree,” except as part of a “specific suspect description.”
What We Know about Massachusetts Policing
Those lofty principles have not adequately protected people, particularly people of color, from illegitimate police actions. An independent report on Boston Police Department (BPD) police-civilian street encounters, conducted at the request of the BPD and the ACLU of Massachusetts, documents what people in communities of color have long observed: “racial discrimination in BPD [police-civilian encounter] practices.”
The report—the only public report on BPD street encounters—finds that BPD officers targeted people of color at far greater rates than white people. For example, reviewing 204,000 police-civilian encounters documented in “Field Interrogation and Observation” forms filled out by Boston police officers between 2007 and 2010, researchers found that Blacks were targeted 63% of the time even though they comprise just 24% of Boston’s population.
But there’s more. Even after controlling for local crime rates, Boston officers were more likely to initiate encounters in Black and Latino neighborhoods. For every 1% increase in Black residents relative to white residents, police conducted 2.2% more encounters—even when crime and gang activity stayed the same. And a 1% increase in Latino residents relative to white residents was associated with a whopping 4.1% increase in police encounters. Similarly, even after controlling for individual arrest records and gang membership, Boston officers were more likely to initiate and escalate—via a frisk or search—encounters with Black and Latino people. Yet for 75% of these encounters the police gave no real justification; they instead just wrote that their purpose was to “investigate [a] person.”
Of course, it’s not just Boston, and it’s not just street stops. A 2004 Northeastern University study, commissioned by the Massachusetts legislature, found that 249 out of 366 Massachusetts law enforcement agencies show substantial racial disparity in traffic stops. Everywhere you look, race matters.
Despite this evidence, and despite testimonials from people of color, many law enforcement and elected leaders in Massachusetts have responded by denying that race is a driving factor in police-civilian encounters—or by dismissing the data as “old.”
Those responses are not surprising. People often construe new information to reinforce their preexisting beliefs or justify their past actions. Such denials, however, reinforce the mistrust between the police and the communities that experience increased police scrutiny. How can those communities expect police departments to fix a problem whose existence they won’t even acknowledge?
What Comes Next
In May 2015, a presidential task force recommended that police departments use open data to increase transparency and build community trust, including adopting early warning systems to identify problems, increase internal accountability, and decrease inappropriate uses of force. Law enforcement leaders, likewise, have called for greater transparency. “We simply must find ways to see each other more clearly,” said FBI Director James B. Comey. “And part of that has to involve collecting and sharing better information about encounters between police and citizens, especially violent encounters.”
Specifically, Mr. Comey proposes requiring police departments to gather more and better data regarding “those we arrest, those we confront for breaking the law and jeopardizing public safety, and those who confront us.”
Bills pending before the Massachusetts legislature would do just that. One bill, An Act regarding judicial investigations of law enforcement officer-involved deaths (H.1428), would mandate independent investigations of deaths at the hands of police officers, and direct the Secretary of Public Safety to promulgate regulations for data collection about use-of-force incidents more generally. Three other bills would require police to collect, analyze, and make public data on race, ethnicity, and gender in traffic and pedestrian stops and arrests, as an antidote to racial profiling and disparities in law enforcement. Collecting and analyzing data—as a routine, consistent, accepted professional practice—can identify “problem areas” and serve as a foundation for fair policing practices. The premise behind all of these bills is that police departments cannot manage what they do not measure.
In addition to officers’ collection of data, civilians’ recording of incidents with cell-phone cameras also provides a measure of civil-rights protection during police encounters. But civilian recording is haphazard, at best, and sometimes dangerous for the civilian. A complementary system of police-worn body cameras, with appropriate privacy protections, would protect both law enforcement and the public. Although some opponents of body cameras have suggested that the Massachusetts law requires two-party consent, it does not. As long as a body camera is worn openly, it does not offend the state wiretap law. See Mass. G. L. c. 272, § 99.
In addition to data collection and body cameras, police departments should be required to implement implicit bias training for all officers. As FBI Director Comey pointed out: “Much research points to the widespread existence of unconscious bias. Many people in our white-majority culture have unconscious racial biases and react differently to a white face than a black face. In fact, we all, white and black, carry various biases around with us.”
Bias training for police officers, when combined with data collection, monitoring, and systems of accountability, is considered by many to be a prerequisite for lasting structural change needed to achieve a socially just society.
Finally, the new BPD report indicates that Terry and Whren have not offered complete protection from groundless or discriminatory police action. Massachusetts courts and policy makers should consider strengthening this protection through doctrines that account for new technology and deeper understandings about the role of race in policing. For example, Massachusetts courts have held that a defendant is entitled to an instruction telling the jury that it should be skeptical of a defendant’s alleged confession when the police fail to record a custodial interrogation. Commonwealth v. DiGiambattista, 442 Mass. 423 (2004). A similar jury instruction or evidentiary rule may be warranted when an officer has the capability to record, but nevertheless does not record, a Terry stop. Just recently, terrorism suspect Usaamah Rahim was reportedly under constant law enforcement surveillance, yet the only video of the Terry stop resulting in Rahim’s death comes courtesy of a grainy security camera owned by Burger King.
Similarly, in seeking to suppress evidence from a Terry stop, a Massachusetts defendant can rely on statistical evidence demonstrating disparate treatment of persons based on their race. Commonwealth v. Lora, 451 Mass. 425 (2008). Given that the only statistical study of BPD street encounters has revealed what independent researchers called “racially disparate treatment of minority persons,” lawyers and courts should consider whether evidence arising from these encounters should be admitted in court.
Technology can enhance liberty, and so can modern understandings of the role of race in policing. But only if the law keeps pace.
Matthew Segal is Legal Director of the ACLU of Massachusetts and a former assistant federal defender in Asheville, North Carolina.
Carol Rose is Executive Director of the ACLU of Massachusetts, a nonpartisan organization that uses litigation, legislation, communications and organizing to promote civil rights and civil liberties.
Establishment of casino gaming in Massachusetts was the subject of a passionate debate. But the Legislature has acted and casinos are in Massachusetts to stay. The Massachusetts Gaming Commission has issued three licenses—full casino licenses to Wynn Resorts in Everett and MGM in Springfield, and a “slots-only” license to Penn National Gaming in Plainville—and is considering applications for the fourth license in the southeastern region of the state.
In addition, the Commission has promulgated regulations covering the gaming industry in Massachusetts. The opportunities for vendors to provide goods and services under these regulations are extensive and will remain so for years to come.
The licensed casinos are expected to purchase an enormous variety of locally-supplied goods and services totaling between $150 and $200 million annually, from tomatoes to toilet paper, and from limousines to linen supply.
Although the opportunities for Massachusetts vendors to supply goods and services to casinos is substantial, so too is the regulatory burden imposed on such vendors. This article will provide an overview of the process and the issues to which attorneys should pay particular attention.
In November 2011, Governor Patrick signed into law the Expanded Gaming Act (“Act”), which included a new Chapter 23K of the General Laws. Among the stated goals of the Act are providing “new employment opportunities” and “promoting local small businesses and the tourism industry.” G.L. c.23K, §1(5)-(6).
However, the Act also emphasizes integrity in the licensing process. This emphasis extends from vendors to casinos. Under the Act, “[n]o person shall conduct business with a gaming licensee unless such person has been licensed or registered with the commission.” G.L. c.23K, §31(a). The Act creates two broad classes of vendors – gaming vendors and non-gaming vendors. Gaming vendors, those who make and service gaming and simulcasting equipment, must be licensed by the Commission, whereas non-gaming vendors are subject only to registration with the Commission. Because manufacturers and servicers of gaming equipment are well-established in the marketplace, this overview will focus on non-gaming vendors – a key area of opportunity for Massachusetts businesses.
A “non-gaming vendor” provides goods or services “not directly related to games” such as food purveyors or suppliers of the many non-gaming items that a large, destination resort needs to operate. Non-gaming vendors are required to register with the Commission.
A “secondary gaming vendor” also provides goods and services unrelated to gaming, but in amounts exceeding $250,000 in a twelve month period or $100,000 in a three-month period. Secondary Gaming Vendors must be licensed by the Commission. If the Commission determines that a non-gaming vendor “has met or is reasonably likely to meet the thresholds” for sales volume, it will notify the non- gaming vendor of the need to apply for licensure as a secondary gaming vendor.
The secondary gaming vendor designation only applies to non-gaming vendors, who “regularly” conduct business triggering these monetary thresholds. Single or infrequent transactions will not necessarily result in this designation. For example, a vendor who makes a single sale of $500,000 of lighting fixtures is unlikely to be designated.
Importantly, the monetary thresholds apply to the amount of business a vendor conducts with a single gaming licensee, and not to the aggregate of all business the vendor conducts with all Massachusetts casinos. Thus, a vendor who regularly conducts business with two casinos will not be designated as a secondary gaming vendor, even if the aggregate of the business conducted with the two gaming licensees exceeds $250,000 per year, or $100,000 in a three-month period.
The Gaming Commission’s Investigations and Enforcement Bureau (“IEB”) oversees the registration and licensing of vendors. The Commission’s regulations identify a number of classes of business that do not have to register — including insurance and media companies, professional services (legal, accounting, and financial services), medical services, and entertainers.
If none of these exemptions apply, the vendor must register, regardless of the monetary value of the transaction(s) conducted. The Non-gaming Vendor Registration Form requires disclosure of general business information (trade name, address and contact information, nature of services or goods provided, FEIN), as well as personal identifying information (name, residential address, social security number, and birth date) of: (a) the sales representative(s) soliciting business from the gaming licensee; (b) any person authorized to sign any agreement with the casino; and (c) any person or entity owning more than five percent of the vendor. In addition, the vendor must agree to be fingerprinted by IEB, and a registrant may have to submit a Subcontractor Information Form, which requires certain disclosures about “known or anticipated” subcontractors.
Once a non-gaming vendor has registered with the Commission, it may conduct business with a casino. IEB monitors and tracks all payments made by casinos to vendors. If IEB determines that a non-gaming vendor should be designated as a secondary gaming vendor, it will notify the vendor, who must take one of three actions within 45 days: (a) file a secondary gaming vendor application; (b) discontinue providing goods or services to the casino; or (c) file a written request for reconsideration on the ground that the goods or services are not provided on a regular or continuing basis.
Vendors have an ongoing obligation to comply with the regulations and to notify IEB of certain changes in their status. Vendors have a duty to cooperate in any Gaming Commission inquiry or investigation. Failure to comply with Commission regulations or the Act, or the arrest or conviction of a vendor’s principal, could result in the suspension, modification or revocation of a license. Since the Commission is charged with an ongoing monitoring role, licensed vendors are advised to self-regulate as closely as possible to prevent threats to their licensure. Given the intense media scrutiny the industry and regulators face, vendors are well advised to adopt strong internal controls and compliance policies when doing business with casinos. Equally important, vendors should be forthright and transparent in their dealings with IEB. A minor incident in a vendor’s past may not preclude licensure, but lying about it may. This is one circumstance in which it is not better to ask for forgiveness than permission.
The Commission continues to supplement and revise its regulations. Unlike many longer-standing regulatory processes, the regulatory scheme for gaming and gaming vendors is relatively new. Commission staff, who are veterans of both Massachusetts state agencies and the national gaming industry, have shown a refreshing willingness to engage attorneys and applicants with pre-filing reviews and discussions offering procedural guidance, and it is worth the practitioner’s time to take advantage of this resource.
The establishment of four casinos in Massachusetts offers considerable opportunity for many types of vendors to access a potentially lucrative market. But this market is regulated more stringently than most. There are significant and continuing regulatory obligations for those who participate, and public scrutiny in this highly regulated industry is certain to be constant. Detailed record keeping and communication with Commission regulators is essential and may add overhead costs for some businesses. But those who qualify and are able supply casinos in a consistently compliant manner should find themselves with a winning hand.
Andrew Upton is a partner at DiNicola, Seligson & Upton, LLP. He specializes in all phases of Administrative Law with an emphasis on licensing and permitting.
Jonathan Silverstein is a member of Kopelman and Paige, PC, focusing his practice on land development permitting, contracting and litigation. He chairs the firm’s Expanded Gaming practice and has represented clients in connection with every gaming facility proposal in the state, appearing regularly before the Massachusetts Gaming Commission.
Earlier this year, the Supreme Judicial Court amended Rule 45 of the Massachusetts Rules of Civil Procedure, which concerns subpoenas. The main purpose of the amendments is to give Massachusetts practitioners the ability to issue “documents only” subpoenas to non-parties. Now, attorneys need no longer notice depositions of non-parties when the only goal is to obtain production of documents.
The amendments were effective as of April 1, 2015. Before that date, attorneys in Massachusetts followed a convoluted procedure: a notice of deposition and a subpoena duces tecum were served on a non-party, commanding that non-party to appear at a Keeper of the Records deposition with the specified documents. The non-party would instead send the documents outlined in the subpoena duces tecum (with a sworn certification) to the issuing attorney, who would then waive the non-party’s appearance at the deposition. The issuing attorney would then have the documents and the non-party would never appear at a deposition.
To streamline the process, the Supreme Judicial Court amended Mass. R. Civ. P. 45 to track the language of and the procedure described in the Federal Rules of Civil Procedure. The amendment eliminates the superfluous steps described in the previous paragraph by creating a new class of subpoenas. Now, the attorney may serve a “documents only” subpoena, and the person receiving it “need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.” The subpoenaed party can simply send the documents to the issuing attorney.
Where the previous incarnation of Mass. R. Civ. P. 45(a) provided generally that a subpoena shall “command each person to whom it is directed to attend and give testimony at a time and place therein specified,” the amended rule provides greater detail, stating that a subpoena shall “command each person to whom it is directed to do the following at a specified time and place: to attend and give testimony; to produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or to permit inspection of premises.” By listing the several purposes for which a subpoena may be issued, the amendment has created new categories of subpoenas that can be targeted for a more economical civil practice.
The new procedure for issuing “documents only” subpoenas in the amended Mass. R. Civ. P. 45(b) further provides that commands to produce documents or electronically stored information may be set out in subpoenas separate from those that command attendance, and that the subpoena “may specify the form or forms in which electronically stored information is produced.” Practitioners will be able to use this provision to require that the document production be made in a specified format, so that they are able to compile and review documents more effectively.
The amended rule also provides certain protections for non-parties. The reporter’s notes recognize that the person receiving a subpoena may have “no stake in the case” and may not have the assistance of counsel. Thus, a party issuing a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” A non-party on whom a subpoena is issued has 10 days from the date of service to object to the subpoena and must serve the objection on all parties. After an objection has been made, the burden shifts to the issuing party, who must then justify the need for the documents via a motion to compel. In practice, Massachusetts courts have generally been protective of non-parties in the discovery context, and these protections will likely be reinforced by the amended rule.
At the same time, the amended Mass R. Civ. P. 45(c) specifies that the requirement to tender fees to a person served with a subpoena does not apply to cases where the person is not commanded to appear – meaning that while a non-party may have an easier time complying with a subpoena, he or she may not receive a fee, however nominal, for doing so.
Although the amendments to Mass R. Civ. P. 45 align the Massachusetts rule more closely to the federal rule, important differences remain. Mass R. Civ. P. 45(d)(1) provides that prior to the service of a “documents only” subpoena on a third person, a copy of the subpoena must be served on all parties to the case. This differs from the federal rule, which requires that both notice and a copy of the subpoena be served on all parties to the case. The Massachusetts rule eliminates an unnecessary step, allowing a copy of the subpoena to operate as adequate notice that a subpoena has been served. Unlike the federal rule, this provision in the Massachusetts rule also tasks the issuing party with serving copies of any objection to the subpoena on all parties. In addition, the issuing party must serve all other parties with either notice that a production was made or an actual copy of the documents produced.
These amendments should help make civil procedure more efficient. By eliminating the need to notice a deposition and issue a subpoena to non-parties from whom only documents are needed, less paperwork will be required from issuing parties. The streamlined procedure will save practitioners time, and clients, money. The amendment to Mass R. Civ. P. 45 should be well received by Massachusetts attorneys.
Carlos A. Maycotte is an associate at Sally & Fitch LLP, where he works primarily in the areas of family law, international arbitration and litigation, and general civil litigation.