Third Circuit affirms the right to record the police, quoting brief written by David Milton for the National Police Accountability Project

The United States Court of Appeals for the Third Circuit recently issued an opinion affirming a vital right granted by the First Amendment: the right to record police officers. The opinion cites an amicus curiae, or friend-of-the-court, brief that David Milton wrote on behalf of the National Police Accountability Project (“NPAP”). Amicus briefs provide courts with information and arguments that the parties to the case may not raise. 

David is well-acquainted with the right to videotape police officers. In 2011, he argued Glik v. Cunniffe, which resulted in the First Circuit Court of Appeals confirming the right to audio and video record police officers in public. The recent Third Circuit opinion relies on Glik and quotes David’s amicus curiae brief twice.

David’s brief for NPAP argued that recordings made by civilians—typically, cell phone videos—promote police accountability and can expose police misconduct or brutality that would otherwise remain hidden. For example, judges and juries are more likely to give police officers the benefit of the doubt despite the well-documented prevalence of police perjury. But a civilian’s cell phone video can provide the irrefutable evidence necessary to convince these supporters of law enforcement to admit that a police officer may lie. Video has proved to be critical evidence in civil rights cases against police.

In the case before the Third Circuit, Richard Fields v. City of Philadelphia, et al., police retaliated against Mr. Fields for taking a photo of on-duty police officers performing their duties in public.

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Massachusetts’s highest court rules in favor of our client PETA in public records case

Last week, the highest court in Massachusetts issued an important decision in a public records lawsuit affirming the public’s broad right of access to government records. The Supreme Judicial Court ruled that a government agency cannot withhold records on “public safety” grounds unless the agency can provide specific factual support that releasing the records would jeopardize public safety. The case was being closely watched by public records advocates, since government agencies have increasingly been withholding records based on bogus “public safety” claims. The opinion makes clear that courts will not rubber-stamp these claims.

The lawsuit, which the firm filed in 2014 for our client People for the Ethical Treatment of Animals, Inc. (“PETA”), seeks to compel the Massachusetts Department of Agricultural Resources (“MDAR”) to provide public records about the transport of monkeys and other non-human primates into and out of Massachusetts.

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Settlement Reached for Our Client Beaten by MBTA Officers

Our client Mary Holmes has settled her case against the MBTA police officers who beat her in 2014. We recommend this article about the case from necn.com.

We Sued a Westport Police Officer for Setting Up a Dangerous Unauthorized Roadblock

Yesterday we filed a federal civil rights lawsuit on behalf of our client, Derek Pereira, against Westport Police Officer Jarrod Levesque for setting up a dangerous and unauthorized roadblock, which caused serious injury to Mr. Pereira. A nearby security camera and a camera in Officer Levesque’s vehicle captured the incident. The news coverage by CBS Boston includes video of the crash.

On August 22, 2016, Mr. Pereira was driving his motorcycle eastbound on Rte. 6. At about 2 a.m., Westport Police Officer Doug Wenson attempted to stop Mr. Pereira for speeding, a civil infraction. When Mr. Pereira failed to pull over, Officer Wenson alerted Officer Levesque, who was located less than two miles east.

In violation of Westport Police Department’s policy, Officer Levesque used his marked police SUV to create a roadblock on Rte. 6.

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The Rodney King video changed everything — and nothing

Howard is quoted in this article: The Rodney King video changed everything — and nothing. The article discusses the 1991 beating of Rodney King, one of the first cases where video captured police brutally beating a human being. Then it discusses some of the many recent horrific incidents, captured on video, of police officers using excessive and at times lethal force. Video is changing the conversation about police officers’ use of force, since officers cannot plausibly deny recorded facts. People no longer doubt that at times police officers use too much force. Video often shows that police reports were not truthful. But, even with video, prosecuting brutal police officers is not easy. Disciplining brutal officers still rarely takes place. More work is needed to hold police officers accountable and change the way police departments hire, train, supervise and discipline police officers. The police culture must change.

Police union contracts hinder police accountability

This article in the Duke Law Journal explains how police union contracts often serve as a barrier to police accountability. The article notes that some police misconduct is unavoidable, citing as examples “racial profiling, excessive use of force, unlawful searches and seizures, failures to cooperate with investigations involving fellow officers, dishonesty at trial, and the planting of evidence.” This is why civilian review and strict supervision is crucial in police departments.

Federal court rules our clients’ cases alleging Lowell Police informants planted drugs may go to trial

We recommend this article about our clients’ cases: Lawsuits over police use of informants move forward.

The article explains that a federal judge ruled that our three clients who allege civil rights violations against Lowell police officer Thomas Lafferty and the City of Lowell have enough evidence to go to trial. The cases allege that officer Lafferty used police informants who planted illegal drugs to frame our clients.

The decision—which you can read here—says our clients have evidence that the City’s policy on the use of confidential informants, written in 1989, was not enforced. Several officers in the Special Investigations Section (SIS)—the squad where officer Lafferty worked since 2005—testified about systemic failures to investigate informants before using them or to document the use of confidential informants. One of the informants who allegedly planted drugs on our clients was known to be a drug dealer by members of the SIS, and was previously deemed unreliable but this was not documented. The decision says a jury may find that officer Lafferty did not properly investigate this informant before using him.

The opinion says our clients have evidence that Lafferty’s informants were both caught selling drugs in Lowell while working as informants and that Lafferty failed to determine the reliability of the informants’ information. From the evidence a jury could conclude that Lafferty “turned a blind eye” to his informants’ possible planting of evidence. The judge denied the defense motions for summary judgment, determining that a reasonable jury could conclude that officer Lafferty and the customs of the Lowell Police Department caused a violation of our clients’ civil rights. The trial date has not been scheduled.

When Warriors Put On The Badge

We recommend this article from The Marshall Project: When Warriors Put On The Badge.

The Project investigated whether veterans who became police officers were quicker to resort to force than non-veteran officers. A conclusive answer is impossible given a lack of proper records regarding police violence, but considerable evidence suggests that veteran officers are more likely to get physical in policing situations. The investigation also determined that generally, police departments provide little to no mental health screening or treatment to veteran officers. 

The investigation included an analysis of the Boston Police Department. From 2010 to 2015, Boston police officers with military service were more likely than non-veteran officers to receive complaints of excessive force. The Boston Police Department also struggles to recruit officers that reflect the diversity of the city because of Massachusetts’s preference for hiring veterans, who are predominantly white men.

Behind the blue wall: Claims of bias in the State Police force

Howard is quoted in this Boston Globe article: Behind the blue wall: Claims of bias in the State Police force. The article provides an in-depth view of many claims of discrimination within the Massachusetts State Police. Women and minority troopers have said that the police force, which is overwhelmingly white and male, is a biased and hostile work environment. The Globe has examined many of the lawsuits filed against the department, which detail claims of racist and homophobic taunts, sexual harassment, and biased employment decisions including female or minority troopers being passed over for promotions or even barred from the force. Howard’s comments point out that state police tend to protect one another—and in at least one pending rape case, troopers appeared in court to support a male trooper charged with rape. We believe police officers should not be above the law. Our state police should reflect the diversity of the people of Massachusetts.

Private eye faced 40 complaints when he was with Boston police

Howard is quoted in this Boston Globe article: Private eye faced 40 complaints when he was with Boston police. A former Boston police officer is now a private investigator despite having accumulated 40 internal affairs complaints from civilians and fellow officers. The charges included untruthfulness, unreasonable judgment, and improper use of force. The Massachusetts State Police does not consider a former officer’s history of complaints when granting a PI license. Private investigators should be held to a high standard of truthfulness.

A closer look at police officers who have fired their weapon on duty

We recommend this article from the Pew Research Center: A closer look at police officers who have fired their weapon on duty. The researchers collected data about officers who have and have not fired their weapon while on duty. Only about one quarter of all police officers have ever fired a gun while on duty. The study shows several interesting links; for example, white officers and male officers are more likely to fire their gun than non-white officers and female officers. Whether or not an officer has fired their weapon also correlates with the officer’s opinions on topics such as gun ownership, use of physical force, and equal rights.

Victory for our client – federal appeals court establishes proper standards for taking a person into protective custody

On February 1, 2017 we won an important victory for our client Peter Alfano, who was unlawfully taken into protective custody on his way into a concert at the Xfinity Center in Mansfield. Mr. Alfano had been drinking but he was not driving. He was coherent. He was not bothering anyone. Despite this, police placed Mr. Alfano into protective custody, handcuffed him, took him in a van to the police station, then held him in a cell for five hours. Mr. Alfano’s lawsuit alleged that police violated the Fourth Amendment by taking him into protective custody without probable cause to believe he was “incapacitated.” Under the law, incapacitated is more than just intoxicated; a person is incapacitated only if he or she so intoxicated as to be a danger to himself or herself, or to others.

The district court dismissed the lawsuit, saying that the legal requirements for police to take someone into protective custody were not clear. Under a doctrine called “qualified immunity,” police can avoid liability for violating constitutional rights by arguing that the rights in question were not “clearly established.” Unlike the rest of us, for whom ignorance of the law is no excuse, for police officers it is.

In a unanimous decision, the three-judge federal appeals court panel rejected the officer’s claim that the law was not clear in this case. The court held that any reasonable police officer would have known that they must have probable cause (not the lower standard of “reasonable suspicion”) to place someone in handcuffs and lock him up for five hours, even if the person was not being charged with a crime. The court also held that the law was clear that police can only take someone into protective custody for being “incapacitated,” not for being intoxicated. You can be under the influence of alcohol at a concert so long as you are not a danger to yourself or others.

The decision, which you can read here, is important because police officers in Massachusetts too often have locked people up for being intoxicated in public. In 2015, our firm won a jury verdict against the Town of Foxborough because we proved that the Town had a practice of illegally taking people into protective custody at Gillette Stadium events. Tuesday’s decision from the court of appeals sets precedent that all police officers in Massachusetts will have to follow. We are sending a copy of the opinion to the Massachusetts municipal police training academy.

Highest court in Mass. will hear our case regarding public records

In a political climate dominated by fake news and “alternative facts,” a strong public records law is more important than ever before. On February 6, David Milton will argue our public records case in the Massachusetts Supreme Judicial Court. The Court’s decision will have tremendous impact on civilians’ ability to request information from governmental agencies in Massachusetts.

We represent the group People for the Ethical Treatment of Animals, which requested public records from the state Department of Agricultural Resources in 2014. The Department denied the request under a too-broad interpretation of the public safety exemption. We filed a lawsuit, and a Superior Court judge sided with the Department. We appealed that decision, and now the highest court in Massachusetts has chosen to hear this case. We highly recommend this article by Andrew Quemere, which explains the legal arguments in detail.

ACLU Report—Caged In: The Devastating Harms of Solitary Confinement on Prisoners with Physical Disabilities

Solitary confinement is harmful to everyone, and it has particular harms to people with physical disabilities. A new report from ACLU attorney Jamelia Morgan of the National Prison Project details the harms caused to prisoners with physical disabilities by the needless use of solitary confinement. The report calls for both state-based and nationwide reforms that will help protect the rights and lives of all prisoners equally, and stop the use of solitary confinement for prisoners with physical disabilities. Learn more and read the ALCU’s report.

Solitary is inhumane; it causes and exacerbates mental illness. The lack of human contact experienced by prisoners in solitary confinement also prevents successful reintegration into society. We support the campaigns in Massachusetts and many other states to end the use of solitary confinement for all prisoners.

Video: Our client Lawyer Johnson was interviewed on Greater Boston about his wrongful conviction

Watch this video of our client Lawyer Johnson describing his wrongful conviction and his fight to get the compensation he deserves. The television show Greater Boston interviewed Mr. Johnson and Jenifer McKim, an investigative reporter who recently published a story about the moral debt owed to people who were erroneously convicted of crimes.

Read more about the problems faced by wrongfully convicted people when they try to get compensation from the state of Massachusetts.

Read more about Lawyer Johnson’s story.

Wrongly convicted in Massachusetts? Good luck getting compensation.

We highly recommend reading this article, published by The Eye in collaboration with the Boston Globe and WGBH radio. The article uses the case of Kevin O’Loughlin to describe the obstacles that people face when trying to get compensation after they have endured a wrongful conviction. The online article includes the audio recording of a radio show in which Howard Friedman is quoted.

In 2004, Massachusetts passed a law, the erroneous conviction statute, which allows wrongfully convicted people to get compensation. The amount of money someone can receive was capped at $500,000 and was not intended to be complete compensation. One of the biggest problems with the law is that the Attorney General’s office spends a long time fighting these cases and negotiates downwards from the cap. As a result, people who were wrongfully convicted can wait years for compensation and then receive an amount that is significantly lower than $500,000. In civil cases, where juries decide damages without a cap, jurors award roughly $1 million per year in custody.

As part of this investigative story, The Eye reached out to our client Lawyer Johnson, who was one of the first people to use the wrongful conviction statute to gain some compensation for his wrongful conviction. Watch a short video of Lawyer telling his story.

New York Times quotes Howard in article: Mistrial for South Carolina Officer Who Shot Walter Scott

Howard weighed in on the news that the criminal charges against the police officer who killed Walter Scott ended in a mistrial yesterday. Video evidence from a witness’s cell phone shows police officer Michael Slager shooting at Mr. Scott, an unarmed black man, as Mr. Scott ran away from the officer. Jurors indicated that eleven out of twelve jurors were in favor of a guilty verdict, but unanimous agreement was not possible.

Howard’s comment in the article expressing sadness at the verdict but not surprise refers to the prejudice in favor of police officers in the court system, particularly in criminal cases.

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We filed a brief supporting the right to record police officers

David Milton recently filed an amicus curiae, or “friend of the court,” brief in the federal appeals court in Philadelphia in a case about the right to record police officers in public. The plaintiffs in that case seek a ruling from the United States Court of Appeals for the Third Circuit that the First Amendment protects individuals who videotape, photograph or otherwise record on-duty police officers. The Third Circuit covers Pennsylvania, Delaware, and New Jersey. The plaintiffs in that case rely heavily on the landmark 2011 case handled by our firm, Glik v. Cunniffe, in which the First Circuit (which includes Massachusetts) affirmed that there is First Amendment right to record police officers. David wrote the amicus brief on behalf of the National Police Accountability Project, a group of more than 500 lawyers around the country who bring civil rights cases on behalf of victims of police misconduct. You can read the amicus brief here.

Defend Civil Rights. What else can we say?

On the day we learned the 2016 election results, Carmen masks her despair with a smile as Howard points out the timely message in the sign above her.We gathered in our office this morning to share our fears for our country.

We fear for the future of the Supreme Court and the likelihood that the laws that protect our civil liberties will be diminished.

We fear the legitimization of hatred including racism, misogyny, xenophobia, Islamophobia, homophobia, and transphobia.

We fear for the communities—Black communities and undocumented communities in particular—that are targeted by the police. We fear that law enforcement will be empowered by our politicians’ rhetoric.

But we will not give up. We will continue to fight for equal treatment and justice for all.

We are reminding ourselves to take deep breaths. We are surrounded by people who share our fears and our desire for justice and equality. Together, we will continue to defend our civil rights and we will work to fulfill our dream of a better world.

U.S. News & World Report and Best Lawyers® announced the “Best Law Firms” rankings for 2017; we are Tier 1 for civil rights law in the Boston area

Our firm received a First Tier ranking in the Boston area in civil rights law by U.S. News – Best Lawyers® for 2017. We are pleased to have again received this recognition for being in the top tier of firms for our work representing victims of police brutality, wrongful death, false arrest, prisoner abuse, and other civil rights violations.

Best Lawyers® is the oldest and most respected attorney ranking service in the world. Firms included in the 2017 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.