Secrets, secrets are no fun: Transparency is needed to thwart police misconduct, but Massachusetts’s public records law provides little help

As that familiar childhood adage goes: “Secrets, secrets are no fun. Secrets, secrets, hurt someone.” Unfortunately, this wisdom has been lost on many state legislatures and police departments who have kept civilians’ complaints and police misconduct records under wraps. Without strong public records laws the public suffers because officers are shielded from robust and transparent disciplinary processes.

In a recent victory, the California legislature passed Senate Bill 1421, which requires California police departments to publicize complaints, internal investigations, and records of certain prior misconduct. Proponents of the bill successfully argued that transparency is the only way to hold police officers accountable and to build trust between the community and the police. Without public access to complaints against police officers, departments can get away with shoddy and biased internal investigations, or no investigations at all. Officers who prove time and again to be either dangerous, incompetent, or both can keep their jobs and effectively conceal their records. Without public accountability, police brutality, wrongful convictions, and false arrests continue unchecked. California’s bill is part of a larger trend towards demanding higher levels of transparency from police departments. In theory, Massachusetts is ahead of the curve given the recent reform to the state’s public records law. But in practice, Massachusetts residents are still fighting an uphill battle to get their records requests fulfilled.

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Massachusetts should follow NYC’s lead and allow free calls from jail

New York City jails will now allow people in their custody to place free phone calls. (Read this article for more details.) This is a very positive development. Communication with family, friends, and lawyers is a vital part of maintaining support networks and preparing people to return to their communities. New York City’s practice should be used as a model for our jails in Massachusetts, which charge incarcerated people—and their family members—exorbitant fees for phone calls.

Check out this fact sheet that shows the rates charged by Massachusetts’ jails and the kickbacks these jails receive from the phone providers. A family member of someone who is incarcerated may be charged up to $7.50 for a 15 minute phone call, or up to $3.75 for a call lasting only 1 minute. These rates result in the sheriff’s departments receiving hundreds of thousands of dollars in kickbacks. The practice of providing free phone calls from jails should be adopted everywhere.

Fall River pays $225,000 to settle lawsuit alleging officers fractured our client’s leg

The City of Fall River is paying $225,000 to settle our client’s claim that a Fall River police officer fractured his right leg. On October 6, 2014, our client, Carlos Roldan, questioned the actions of Fall River Police Officers Michael Pessoa and Andre DeMelo as they placed Mr. Roldan’s sister under arrest. Our case alleged that Officer Pessoa then brought Mr. Roldan to the ground and one of the officers kicked Mr. Roldan several times, fracturing his right tibia bone near the knee. The second officer stood nearby and watched. Both officers wrote reports, but they did not say what caused the leg fracture. We recommend this article about the case: Man gets $225K to settle lawsuit over excessive force during arrest in Fall River.

Civil Commitment For Addiction Treatment Led To Loved One's Suicide, Family Says

The lack of treatment for men who are involuntarily committed for drug and alcohol treatment in Massachusetts is outrageous. We recommend this news story from WBUR: “Civil Commitment For Addiction Treatment Led To Loved One's Suicide, Family Says.” The article follows the sad story of Sean Wallace, one of many Massachusetts men who was involuntarily committed to treatment for substance abuse. Family members seek treatment through involuntary commitments, not realizing that Massachusetts uses treatment facilities that are like prisons as well as actual prisons to hold their loved ones. Sean Wallace’s story highlights several reasons why this is harmful. The prisons do not provide methadone or other addiction medications that have been proven to be effective, even if someone has been taking these prescribed medications regularly. Civilly committed men often live in the same units as people serving prison sentences and have reported being harassed by guards and threatened by prisoners.

A pending lawsuit filed by Prisoners’ Legal Services is seeking to change the way involuntary commitment works. People who need drug treatment do not belong in prisons. Massachusetts needs treatment centers that can meet the medical and therapeutic needs of people who are struggling with addiction.

Chicago cop alleges cover-up in police shooting

We recommend this article: Chicago cop alleges cover-up in police shooting: ‘I'm going to feel like Serpico, basically.’ Police sergeant Isaac Lambert of Chicago, Illinois, says that his supervisors pressured him to cover up the police shooting of 18-year-old Ricky Hayes. A Chicago officer shot and wounded Hayes although he did not pose a threat. Then the officer tried to bring false charges against Hayes. Sergeant Lambert intervened and ordered that Hayes be released instead of charged. Lambert refused his superiors’ orders to falsify the police report to cover up the illegal shooting. Lambert was removed from the detective bureau and anticipates further retaliation from his fellow officers.

Police officers who shoot civilians for no reason need to be held accountable. When departments cover up police brutality by lying in reports and bringing false charges, police misconduct thrives.

Lambert is quoted as saying, “Always tell the truth and always do what’s right, and don’t ever let some boss, especially someone who sits in an office all day at police headquarters, tell you to put your name on something that’s not right,” he told reporters. “You only have one reputation in life, and make sure that’s one that you can be proud of.”

A Tale of Two Police Responses

We recommend this article: A Tale of Two Police Responses. Agustin Gonsalez, a mentally ill man with a history of depression, was shot to death by police in Hayward, California, as he held a razor blade. In a similar incident just months prior, police in Oakland, California, talked him down and disarmed him as he cut himself with a razor. Hayward police, on the other hand, opened fire on Mr. Gonsalez only seven seconds after arriving to the scene. This is a tragic example of the needless deaths that police cause when officers are not trained in de-escalation strategies but instead turn immediately to lethal force.

In police shooting, answers few

Howard is quoted in this article describing how the family of Alan Greenough is still looking for answers a year after a Reading police officer fatally shot Greenough outside his home. The Middlesex district attorney’s office is investigation the shooting but Greenough’s family does not trust that the investigation will be fair because the investigators have withheld information about the shooting, including the name of the officer. Howard points out that the secrecy of the district attorney’s office’s investigation only makes this police shooting seem more suspicious.

Long-Lost Records Surface in Wrongful Conviction Case, Detailing Lead Detective’s Fondling of Informants

We recommend this article on propublica.org because it shows the importance of making records about discipline of police officers public: Long-Lost Records Surface in Wrongful Conviction Case, Detailing Lead Detective’s Fondling of Informants. The article describes how newly released documents shed light onto police misconduct that occurred more than a decade ago. An Indiana detective whose investigations led to two wrongful convictions was forced to resign in 2001, but the city withheld the details about his resignation until recently. Now, thanks to the civil lawsuit of one of the wrongfully incarcerated men, the public knows that the detective’s forced resignation was due to sexual misconduct with informants. When police officers resign because they abused their power, civilians deserve transparency about what happened. As in this case, the details about why the police officer was forced to resign raises questions about the credibility of the officer’s investigative work.

Article: ACLU criticizes Boston police commissioner’s Facebook post

Howard is quoted in this article in the Boston Globe: ACLU criticizes Boston police commissioner’s Facebook post. On Saturday, Boston police commissioner William Gross published a criticism of the ACLU on his Facebook page, which is visible to journalists. His comments are in response to a lawsuit filed earlier this month. The ACLU is one of several plaintiffs in this lawsuit, which seeks information about the Boston Police Department’s practice of labeling young Black and Latinx people as gang members without strong evidence, and sharing that information with federal immigration officials. Howard suggests that that Police Commissioner Gross should not be reflexively lashing out at critics. Instead he should consider whether there is any truth in the criticism. For many years Boston Police Commissioners have worked with the ACLU to prevent civil rights violations, for example, meeting when demonstrations are going to take place in an effort to protect the constitutional rights of protestors and to protect public safety. Working together can prevent civil rights violations and avoid civil rights suits.

They Were Seeking Mental Health Care. Instead They Drowned in a Sheriff’s Van

We recommend this sad article: They Were Seeking Mental Health Care. Instead They Drowned in a Sheriff’s Van. Two women drowned in the back of a sheriff’s van in South Carolina after the sheriff’s deputies drove down a road that was blocked off because of flooding. Floodwaters overtook the van. The deputies survived by climbing on top of the van and awaiting emergency rescue services. The deputies could not rescue the two women, who drowned in the back of the van. The women were mental health patients who were being taken from hospitals to mental health treatment centers. This was an avoidable tragedy. The deputies drove on a road that was blocked off due to flooding. This transport could have waited until travel was safe.

Howard will comment on “Crime + Punishment” at Newburyport Documentary Film Festival

On Sunday, September 16, 2018, Howard will provide commentary on the documentary film “Crime + Punishment” at the Newburyport Documentary Film Festival. The film is about the NYPD 12, a group of police officers who filed a class action lawsuit against the City of New York for imposing quotas on police officers, which resulted in arrests without probable cause. The film shows the effect on the police officers for reporting misconduct within their police department. By speaking the truth they faced retaliation for breaking the “code of silence.” While the film is about New York City, similar issues exist in police departments in Massachusetts. Unfortunately police officers who speak out still face retaliation. 

‘I could crush your [expletive] skull and [expletive] get away with it.’ A deep look at the Springfield police

We recommend this article about the Springfield police, which highlights our recently filed case: ‘I could crush your [expletive] skull and [expletive] get away with it.’ A deep look at the Springfield police. We represent one of the teenagers who was assaulted by Springfield police officers in February of 2016. Our client, who was 14 at the time, was brought to the ground and repeatedly bitten by a police dog. While our client was handcuffed, Officer Gregg Bigda kicked him in the face and spit on him. Later, Officer Bigda was recorded on video at the Palmer police station threatening two other boys and bragging about how he could brutalize them and plant drugs on them with impunity. Our lawsuit claims that the City of Springfield has a policy or custom of tolerating unreasonable force and other misconduct by its police officers. The City’s policies or customs permitted Officer Bigda to continue working as a police officer despite his long and well-known history of using unreasonable force against civilians.

Boston police officers support DA candidate who would thwart criminal justice reform and police accountability

Howard is quoted in this article: There are six candidates for Suffolk DA, but one has the lion’s share of police support. Police officers in Boston have overwhelmingly contributed to the campaign of long-time prosecutor Greg Henning. As the article explains, Howard is concerned that Henning’s close working relationship with police officers and the near-exclusive financial support from police officers will make it challenging for him to be impartial in cases where there are allegations of police misconduct. Henning is the only one of the six candidates who says he would not appoint a special prosecutor to investigate when police officers shoot and kill people. The people of Suffolk County deserve a district attorney who will promote police accountability.

Activists, ACLU Push for the Right to Secretly Record Police in Massachusetts

On July 19, 2018, a federal judge in Boston heard oral arguments in an important lawsuit brought by the ACLU of Massachusetts seeking to establish that the First Amendment protects the right to secretly record police officers. The lawsuit, Martin v. Evans, challenges the constitutionality of Massachusetts’ wiretap statute, Massachusetts General Laws Chapter 272, Section 99, with respect to secret recordings of police officers. Section 99 makes it a felony to secretly record oral communications. Two Massachusetts civil rights activists, Eric Martin and Renee Perez, want to be able to record police secretly without the threat of prosecution.

The Boston Police Department trains its officers that they have a right to arrest civilians for secretly recording them, even though Glik v. Cunniffe—our firm’s landmark 2011 case in the First Circuit, which confirmed the constitutional right to record police—makes no distinction between open and secret recording. Since 2011, the Boston Police Department has brought nine criminal complaints under Section 99 for the secret recording of its police officers. The ACLU’s suit asks the court to rule that it is unconstitutional to arrest people under the wiretap law for exercising their First Amendment right to secretly record police in the public performance of their duties.

Defendants, Boston Police Commissioner William Evans and Suffolk County District Attorney Daniel Conley, argue that the privacy rights afforded under the wiretap law should apply equally to police officers. United States District Judge Patti Saris said that she could not think of a single reason to support the notion that a police officer involved in a public arrest should retain any expectation of privacy. Defendants further claimed that civilians’ right to openly record police is, alone, an effective measure in ensuring that police officers conform to laws. The ACLU argues that secretly recording the police would yield an added layer of transparency that is otherwise lost when officers refrain from misconduct because they know they are being recorded.

Arguing alongside the ACLU in a separate but related suit were attorneys representing Project Veritas. Project Veritas also seeks an injunction against the enforcement of Section 99. Seeking a considerably wider ruling than the ACLU, Project Veritas wants to be allowed to secretly record all individuals in all spaces generally accessible to the public.

Judge Saris said that she was contemplating three forms of potential relief: the narrowest form would protect the secret recording of police officers in public settings (motor vehicle stops, sidewalks, parks); the middle form of relief adds to this the right to secretly record all public officials in all public forums; the broadest form of relief would protect the right to secretly record all individuals in all spaces that are generally accessible to the public. Our firm welcomes any outcome that ends enforcement of Section 99 against those secretly recording the police. Affirming that the First Amendment protects secret recording will result in greater police transparency and accountability, and less police harassment and retaliation against civilians exercising a vital constitutional liberty.

By Alec Larson, Legal Intern

Watchdog Report: Lawyer calls for probe of Worcester police credibility

Howard is quoted in this article: Watchdog Report: Lawyer calls for probe of Worcester police credibility. The article describes civil rights lawyer Hector Pineiro’s account of widespread misconduct in the Worcester police force, including fabricating evidence and hiding evidence that could be used to prove a suspect’s innocence. In many cases, judges in criminal prosecutions questioned the police officers’ conduct. The well-researched article also discusses cases of police misconduct in Springfield, Lowell, and Boston. Howard provides insight into how police misconduct thrives with a lack of proper supervision and accountability. Too often police officers are willing to violate the constitution in order to make an arrest.

Punches as police practice called into question after viral videos

Howard is quoted in this article: Punches as police practice called into question after viral videos. The article discusses a video that went viral this weekend because it shows Worcester, Massachusetts police officers punching a man numerous times after taking him down to the ground. We view these punches as unreasonable force and police brutality. The police department, however, claims that punches like these follow proper police procedure.

Police officers are not allowed to use unreasonable force. When a police officer punches a person who is already subdued it does not serve a legitimate police purpose and is therefore unreasonable. If this use of force follows department policy, the policy must be changed.

Videos of police misconduct such as this one create a renewed opportunity for civilians to argue for police accountability.

We also recommend this column about this incident: Clive McFarlane: Officials too quick to accept police version of violent arrests.

AG Maura Healey promises transparency, but critics say her record falls short

David is quoted in this article in the Boston Globe: AG Maura Healey promises transparency, but critics say her record falls short. The article describes how the attorney general’s office has repeatedly fought to keep government records secret despite the attorney general’s claimed commitment to open government. The article discusses our firm’s public records lawsuit on behalf of People for the Ethical Treatment of Animals, which resulted in an important decision from the state’s highest court affirming the broad scope of the Massachusetts public records law. You can read more about the PETA case here.

Missed warning signs on the road to tragedy

Howard is quoted in this Boston Globe article: Missed warning signs on the road to tragedy. The article describes how a Massachusetts State Police officer let an impaired woman continue driving, and 19 minutes later she struck and killed a 42-year old husband and father. The officers who responded to the crash said the driver couldn’t walk without losing her balance, had “droopy” eyes, and didn’t know what month it was.  Howard was critical of the actions of the State Police in refusing to provide police reports to the District Attorney’s office because the State Police began an internal investigation.

A second article published today describes how the State Police took eight months to hand over information about the crash to prosecutors: Months after fatal crash, State Police provide information to prosecutors.

On video: Lowell Police detention attendant punches man in head

We recommend watching this video from LowellSun.com: Amid training lapses, video shows handcuffed detainee punched. Video from the Lowell Police Department shows a civilian detention attendant punching a detainee in the head. Our office and the Lowell Sun both obtained this video by making a public records request. Howard is quoted in the article.

Howard is also quoted in this article about the incident: Lowell PD history repeats itself.

We filed a civil rights case against Essex County correctional officers after our clients’ son died of overdose in transport van

We represent the parents of Sam Dunn, a 29-year-old man who died of an opioid overdose while in an Essex County Sheriff’s Department transport van on January 7, 2016. Earlier this week, we filed a civil rights and wrongful death case alleging that two Essex County correctional officers ignored Mr. Dunn’s need for emergency medical treatment, resulting in his death.

We recommend this news story about the case by 5 Investigates.

Our case alleges that Essex County Officers Patrick Barry and John Nguyen were transporting Mr. Dunn to the Massachusetts Alcohol and Substance Abuse Center (MASAC) in Bridgewater, where a judge had ordered Mr. Dunn civilly committed for substance abuse treatment. The officers saw that Mr. Dunn “seemed to be under the influence of some type of drug or alcohol.” Earlier that day, Mr. Dunn had ingested opiates contained in fingers cut from a surgical glove. Video footage of Mr. Dunn from the Essex County Correctional Facility shows that shortly before he was placed in the transport van, he was struggling to stand and convulsing in apparent seizures.

Mr. Dunn spent the last five and a half hours of his life shackled in the back of the prisoner-transport van, unresponsive, and loudly struggling to breathe. Most of this time was spent in the parking lot outside MASAC, which had anti-overdose medication that would have saved Mr. Dunn’s life. Our case alleges that the officers ignored obvious signs that Mr. Dunn was overdosing and failed to follow policies requiring them to maintain constant visual observation of people in their custody and be alert to issues such as drug use and difficulty breathing.

When the officers finally checked on Mr. Dunn, he was unresponsive and his skin had turned blue. The officers summoned emergency medical help, but Mr. Dunn could not be revived. Had the officers gotten medical care for Mr. Dunn at almost any point during the eight and a half hours they were responsible for his care and custody, Mr. Dunn would have lived.