The Supreme Court has given police officers a license to lie. Previously, the Court ruled that when officers lie at a criminal trial, presumably to obtain a conviction, they are immune from civil suits. On April 2, 2012, the Court decided Rehberg v. Paulk, finding that all witnesses, including police officers, who lie before a grand jury in order to obtain an indictment are also immune from civil lawsuits. According to the Court, there is no reason to hold officers civilly liable since they are subject to criminal prosecution for perjury. However, this is actually a license to lie because a perjury charge would have to be brought by the prosecutor— the same prosecutor who called on the officer to testify.
Perjury prosecutions of police officers for lying before a grand jury simply will not happen because officers and prosecutors have an interdependent relationship.
Earlier this month, the Supreme Court issued a 5-4 decision stating that detainees who enter the general population of a jail or prison could be strip searched, regardless of their reasons for being detained. Currently, most jails and prisons do not strip search pre-arraignment detainees unless the officer has probable cause to believe that the detainee has weapons, drugs, or other contraband. Jails and prisons may be tempted to change their strip search policies due to this Supreme Court decision. In our view, however, the Massachusetts Declaration of Rights still prohibits jails or prisons from strip searching pre-arraignment detainees without probable cause that there is contraband. Read the decision, or read an article about how this ruling will affect jails in Massachusetts.
Lawyer Johnson's self-portrait, made while he was wrongfully incarcerated
The Boston Globe published this article about Lawyer Johnson, our client who was wrongfully convicted and spent 10 years in prison for a crime he did not commit. Our firm obtained compensation for him under the Massachusetts Erroneous Conviction statute.
"Where most people measure the time of their lives in forward progress, Lawyer Johnson measures his life strictly in terms of before and after. Before 1982 and after 1982. He was 30-years-old in ‘82, when a judge freed him from the prison where he’d served time on death row for a murder he didn’t commit. It has been 30 years since Johnson, the last person ever sentenced to death in Mass., was freed. And while 'people tell you that with time you can move on, I haven’t been able to,' Johnson says." James H. Burnett III. “The long, hard half-life of Lawyer Johnson.” Boston Globe April 08, 2012.
Simon Glik, a Boston attorney wrongly arrested and prosecuted for using his cell phone to record police officers forcefully arresting a man on the Boston Common, has reached a settlement with the City of Boston on his civil rights claims. The settlement requires the City to pay Glik $170,000 for his damages and legal fees.
Mr. Glik was forced to defend himself against criminal charges of illegal wiretapping, aiding the escape of a prisoner, and disturbing the peace. After a judge threw out those charges, Glik filed a civil rights suit against the city and the arresting officers in federal court in Boston, aided by the American Civil Liberties Union of Massachusetts and Boston attorneys Howard Friedman and David Milton. This settlement resolves that case.
The settlement follows a landmark ruling last August by the U.S. Court of Appeals for the First Circuit, declaring that the First Amendment protects the right to record police carrying out their duties in a public place, Glik v. Cunniffe 655 F.3d 78 (2011). The First Circuit's ruling is binding only in Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico, but its persuasive reasoning has been cited by courts and lawyers nationwide facing the recurrent issue of police arresting people for filming them.
The Massachusetts wiretap statute prohibits only secret recording of audio. The First Circuit in Glik's case affirmed that an arrest under the statute for openly recording the police would violate not only the First Amendment right to gather information but also the Fourth Amendment's guarantee against false arrests.
The city of Boston paid $1.4 million to settle a civil rights lawsuit against our firm brought on behalf of Mike O’Brien, a victim of police brutality. In addition, one of the police officers sued, Officer David Williams, was fired for using unreasonable force on our client and then lying about his use of excessive force. (Williams was fired years earlier for participating in the police beating of a plainclothes officer who was mistaken for a murder suspect in 1995. He won his job back after an arbitration.) Check out this Boston Globe article about the settlement.
The article discusses several pending court cases that address the issue of people recording officers with their cell phones. Our firm is handling the case Glik v. Cunniffe, which went to the First Circuit Court of Appeals in August 2011. The First Circuit ruled that the officers violated Glik’s clearly established constitutional right to record police performing their duties in public.
The ABA Journal article quotes attorney David Milton: “What is so good about the 1st Circuit decision in Glik is that the judges recognized that even though there may not be a prior case of a police officer in a park with a person on a cellphone, basic long-standing First Amendment principles clearly apply to the situation even though it involves new technology.”
Luke Gelinas settled his federal civil rights suit against Ed Boisselle, the former chair of the South Hadley School Committee, alleging Boisselle violated Gelinas’s constitutional rights under the First Amendment. Gelinas was told to stop speaking as he said it was time to hold adults responsible for the tragic death of Phoebe Prince. The case settled for $75,000. Payment has just been received. The case is Gelinas v. Boisselle, et al., C.A. No. 10-30192-KPN, in the United States District Court in Springfield, Massachusetts.
You have the right to videotape the police and other public officials while they’re on the job.
In our lawsuit Glik v. Cunniffe, the First Circuit Court of Appeals said that videotaping public officials "serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs.… This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties." (Click here to read the decision.)
Check out these two videos designed to educate people about their right to film the police.
The firm filed this lawsuit in September 2011, alleging that since the facility opened in 2007, male correctional officers have been routinely videotaping female inmates’ naked bodies while the women are strip searched. The lawsuit alleges that this practice is degrading and unconstitutional. Read more here.
On January 30, 2012, the firm filed a civil rights lawsuit alleging that Lowell police detective Stephen Ciavola used excessive and unreasonable force against our client Cindy Thach. Check out this article in the Lowell Sun or read about the case below.
Boston police officer David Williams was fired for using unreasonable force on our client Michael O’Brien, and for lying about his use of excessive force. This is a rare example of a police department finding a police officer guilty of brutality and terminating him for abuse of a civilian.
Today this office filed a lawsuit in federal court along with co-counsel Alexander Reinert and attorneys from the Center for Constitutional Rights in New York.
Check out this article in the Huffington Post discussing how the media are biased in favor of the police. The article states that media often describes police brutality as a “clash” between police and protesters, but “these are not conflicts between rivals of equal proportion, as ‘clash’ connotes. These are incidents of police violence and media should start calling it for what it is. With so much amateur video, the media has little choice but to set aside convention and report what's happening.”
The firm filed a civil lawsuit on behalf of Maury Paulino, alleging that four Boston police officers falsely arrested him and used brutality against him because he recorded the officers’ activity with his cell phone. The lawsuit states that although Mr. Paulino’s recording was legal, the officers punched, kneed, and pepper-sprayed him in the face, then charged him with violating the wiretapping statute.
On November 18, 2009, Mr. Paulino (19 at the time) was outside the B2 station after bailing out a friend. Mr. Paulino saw officers mistreating his friend, so he began to record the incident with his phone. Mr. Paulino did not interfere with the officers’ actions, but the officers decided to arrest him and brought him to the ground. Officer Seth Richard punched Mr. Paulino in the face three times, kneed him in the face, and sprayed him with pepper spray. Officers Nicolas Onishuk, Richard Davis and James Moore assisted or stood by without preventing this unreasonable force.
The officers brought criminal charges against Mr. Paulino, including the charge of violating the Massachusetts wiretapping statute. He was found not guilty at trial. In another recent lawsuit, Glik v. Cunniffe, the United States Court of Appeals for the First Circuit held that the First Amendment protects the right to record police officers in public spaces performing their official duties. Since Boston police officers should have known that it is unlawful to arrest people for recording police performing their official duties in public, Mr. Paulino’s lawsuit also includes a claim against the City of Boston for failing to supervise and discipline officers for their pattern of unlawful arrests.
“I was recording the police officers to make sure they didn’t hurt my friend. I didn’t expect the police officers would arrest and hit me for recording them,” says Mr. Paulino.
Imagine you are strolling through the Boston Common and you see three Boston police officers using force to arrest a young man on a park bench. Someone shouts, “You’re hurting him!” You think this looks like police brutality. Do you pause to watch? Do you perhaps take out your cell phone and begin recording the arrest from a safe distance? Even if you would rather walk on by, would you be at all surprised if other bystanders pulled out their cell phones to videotape the event?
This is exactly what attorney Simon Glik did on October 1, 2007. And as August’s decision from the First Circuit Court of Appeals affirmed, it is perfectly legal. When an officer asked Mr. Glik to stop taking pictures, Mr. Glik responded, “I am recording this. I saw you punch him.” The officers then handcuffed Mr. Glik and arrested him for illegal wiretapping (a felony), aiding the escape of a prisoner, and disturbing the peace. The charges were eventually dismissed.
Last year, South Hadley resident Luke Gelinas filed a federal civil lawsuit alleging that his First Amendment rights were violated when Chairperson Edward Boisselle removed him from a public meeting for criticizing the school’s handling of the Phoebe Prince case. On October 18, 2011, the Court issued a memorandum denying the defense motion for summary judgment and stating that Gelinas "has presented sufficient evidence from which a reasonable jury could find that Boisselle prevented him from speaking solely on the basis of his viewpoint, thereby violating his First Amendment rights."
During the public comment period of the school committee meeting on April 14, 2010, Gelinas was speaking from a prepared statement. Gelinas began to say that it was time for school officials, including Boisselle, to be held responsible for their role in the death of Phoebe Prince. Before he could finish, Boisselle ordered Gelinas to stop speaking and sit down. Gelinas was eventually escorted out of the meeting by police officers.
The defendants in this case, Boisselle and the two police officers, filed a motion for summary judgment seeking a ruling that there was no question that Boisselle removed Gelinas from the meeting for valid, viewpoint-neutral reasons.
Check out this great editorial in the New York Times. The author discusses one man’s story, revealing how easily police officers can abuse the charge of resisting arrest. The article notes, “Civil rights lawyers have long complained about trumped-up arrests of mainly minority citizens who are dragged into the criminal justice system.”
Monday, May 7, 2012 