Gangsters in Blue

This article was cross-posted at Massachusetts Cop Block

In October of last year, UMass Lowell student Brendan Brown was threatened by a campus police officer for video-recording a group of police officers who were responding to a fight that had taken place outside an apartment. Brown was approached by UMass Lowell Police Officer Noberto Melendez who told him to “Shut that fucking thing off before I slap you.” Brown decided he’d rather not be arrested, so he left the area, but he did upload his video to YouTube and later shared it on my Facebook wall.

After I saw the video, I brought it to the attention of Police Chief Randolph Brashears. Chief Brashears subsequently launched an investigation which resulted allegations of misconduct being sustained against Officer Melendez. As you may remember, I was able to get the University to agree to disclose their investigation report by making a public records request, however, the University told me I needed to pay a $235 fee to have a copy made. Luckily, some generous Cop Block readers donated the money.

After I sent in the money to the University, they engaged in a long and unlawful delay before sending the documents out to me. On January 6, about 3 weeks after the University received my payment, I still had not received the report, so I called to complain. I contacted Jack Giarusso, the head of Human Resources at UMass Lowell, and asked him why it was taking so long for the documents to be mailed to me. He told me that he was just about to send them out. I pointed out to him that he was violating the law because the Massachusetts Public Records Law requires that records custodians comply with requests within 10 days without any unreasonable delays and it had already been more than a month. Giarusso gave me an excuse about how he hadn’t been able to mail the records on time because he had to move to a different office, but I told him that the Public Records Law does not mention this as a legitimate reason for taking so long to comply with a request.

I finally received a copy of the investigation about a week later. Unfortunately, I’ve been having problems with my scanner, so I wasn’t able to scan the report until several days ago when I found time to go to the local public library. You can find a copy of the report at the bottom of this post.

I don’t want to discuss everything about the report in detail. After all, you can read the entire thing yourself. But there are a few aspects of the report that I wanted to draw some attention to.

One of the first sections of the report describes how Chief Brashears interviewed Officer Noberto Melendez, the police officer who threatened Brendan Brown. Chief Brashears describes how he called Officer Melendez to his office and advised him that he could have a union representative there to officer guidance. Melendez returned with an Officer Soucey. According to the report:

Officer Soucy asked if there were any criminal charges being considered against Officer Melendez and if so would “Garrity Rights” be used. I advised both of them that there criminal charges are not being considered in this incident but to ease their concern I advised that nothing said during this process could be used against Officer Melendez in any criminal proceedings.

So, we learn here that criminal charges were never considered against Officer Melendez. It didn’t matter that Officer Melendez threatened to physically assault Brendan Brown. It didn’t matter that he deprived Brown of his constitutional right to observe and record police activity. Criminal charges were just never even on the table. But what do you expect when cops are “investigated” by other cops?

Next, Chief Brashears informed Melendez that he watched Brown’s YouTube video and asked him to describe what happened that night from his own perspective. Officer Melendez told Brashears that he was responding to a call from other officers. When he arrived at the scene, he witnessed a large crowd.

Officer Melendez states that when he got out of his cruiser he immediately tried to move the crowds by giving commands to leave the area. Officer Melendez stated that he could hear the sirens of the Lowell police department’s cruisers that were responding to this incident.

Officer Melendez stated that it was at this point that “I became very frustrated” because of the lack of response from the crowd. I observed the subject videotaping the event; he was standing on the sidewalk. I went over to him and stated, “Turn that fucking thing off before I slap you”, he further states that “I never had any intention to strike the person but was only trying to get this persons attention; I then immediately went over to another crowd down the street to disperse them”.

The above quote is where Melendez offers a ridiculous explanation for his thuggish behavior. Melended was just trying to get Brown’s attention, so he threatened to assault him? Huh? Usually when I’m trying to get a stranger’s attention, I opt for an “excuse me, sir” or something along those lines. If the roles were reversed — if Brown had threatened to assault Melendez — would he buy the “I was just trying to get his attention” excuse?

And if Officer Melendez was trying to get Brown’s attention, why did he walk away “immediately” (his own word choice) after threatening him without saying anything else? What was he trying to get Brown’s attention for? Apparently nothing.

Let’s read on:

Officer Melendez stated that he regrets saying what he said to the student and knows that some type of discipline will result from this incident. He further said that this is not at all like him, that he always treats the students and public with respect. Officer Melendez further stated that he remembers the Chief either talking about this type of issue or remembers an email from the Chief. Officer Melendez realizes that the public has the right to videotape police activity and that he has no excuse for his behavior, but didn’t remember if this was covered in in-service training.

The above passage is worth taking notice of because it shows that Officer Melendez was already aware that people have the right to video-record the police. There was no confusion about the law on his part. He was not only acting unlawfully, he knew damn well that he was acting unlawfully.

And yet, even though Officer Melendez admitted to knowingly breaking the law, he expects us to believe “this is not at all like him, that he always treats the students and public with respect.” Officer Melendez will have have to forgive me for being skeptical.

At the end of the investigation, Deputy Police Chief Dickerson writes that he sustained all the allegations against Officer Melendez. This means Melendez was found to have used profane and abusive language, engaged in conduct unbecoming of an officer, and violated the civil rights of Brendan Brown.

Unfortunately, we still do not know what punishment Melendez has been subjected to for his behavior. As I explained in an earlier post, the University claims that information is confidential and has refused to disclose it to me. I have exchanged several emails with Deirdre Heatwole, the lawyer who represents the University of Massachusetts system, but I have been unable to convince her to release the information and do not think that I will ever be able to.

In any case, I want to again thank the donors who helped get this report released. I think it’s important that information like this is available to the public and I think it’s a crime that the government makes us jump through so many hoops to get it.

Documents (.pdf format)

• Cover letter
• Training document about “Unlawful Secret Recordings”
• Investigation Report

Report describes investigation of abusive UMass Lowell officer is a post from Cop Block - Badges Don't Grant Extra Rights

This article was cross-posted at Massachusetts Cop Block

As counterintuitive as it sounds, there are a many documented cases of innocent people confessing to serious crimes (like rapes, murders, etc.) when interrogated by police. The Innocence Project reports that about one quarter of people who have been exonerated by DNA evidence made false incriminating statements or gave false confessions that helped convict them.

How could this be? What would lead someone to do something as seemingly crazy as confessing to a crime they didn’t commit?

WBUR/90.9FM (Boston public radio) recently broadcast an excellent two-part program by reporter David Boeri which looks at some of the reasons why. The program, titled “Anatomy of a Bad Confession,” discusses how Worcester, Massachusetts police detectives used abusive interrogation techniques to coerce 16-year-old Nga Troung into confessing to a murder she did not commit. The program goes into detail about the interrogation techniques used by the detectives as well as the disturbing lack of accountability they have faced.

The whole program is worth a listen, so I won’t bother summarizing it any further. Use the links below to check it out:

• Part 1
• Part 2

More information:

• Anatomy of a Bad Confession, Part 1
• Anatomy of a Bad Confession, Part 2
• Videos

Legal documents (.pdf format):

• Judge’s Ruling On Truong’s Motion To Suppress Statements
• Boeri’s Motion Seeking Interrogation DVDs
• Judge’s Decision To Grant WBUR DVDs

Worcester police use coercion to get confession is a post from Cop Block - Badges Don't Grant Extra Rights

This article has been cross-posted at Massachusetts Cop Block

In a recent post, I informed Cop Block readers that the University of Massachusetts Lowell was requiring me to pay a $245 fee in order to get copies of an internal investigation report. The report documents the UMass Lowell Police Department’s investigation into Officer Noberto Melendez, who threatened to assault a student for video-recording him earlier this year.

I wanted to update everyone by saying that three individuals stepped up to the plate and donated the $245 to me. I want to quickly thank these three people for their generosity. I really appreciate the donations. Without their help, I would not have been able to cover the fee.

I’ve already sent a money order to the University, so it should only be a matter of time before I get a copy of the report. As soon as I do, I’ll scan it and post a digital copy of it on Cop Block.

Donors help Cop Block release public police records is a post from Cop Block - Badges Don't Grant Extra Rights

This article has been cross-posted at Massachusetts Cop Block

In October, I wrote about how a UMass Lowell student was threatened by a campus police officer for video-recording him. Brendan Brown was recording the police respond to a fight outside an apartment when he was confronted by a police officer and told to “Shut that fucking thing off before I slap you.”

In case you missed the first post, you can check out the video below:

In early November, I reported that UMass Lowell Police Chief Randolph Brashears wrote to me that the officer in the video, Noberto Melendez, had been disciplined for his behavior. However, Chief Brashears did not say how Officer Melendez was disciplined. Because I did not believe that Chief Brashears was being sufficiently transparent, I filed a public records request with the police department asking for the internal affairs report, information about how Melendez was disciplined, and training and policy information about the campus police.

Later that month, I received a response to my request from Jack Giarusso, the Executive Director of Human Resources at UMass Lowell. In the letter (see the scans here and here; .jpg format), Giarusso said three things.

First, Giarusso agreed to release the internal affairs report, however, he said that I must pay the University a $245 fee for it. This is because, under the Massachusetts Public Records Law, government agencies can require individuals who request records to pay certain fees. The reason the fee is so high in this particular case is that the University must redact certain pieces private information from the report (information about witnesses) and they estimate the process will take about six hours. Personally, I think it’s outrageous that I’m expected to pay hundreds of dollars just to get photocopies of documents which are supposed to be public records, but that’s the way the law currently works.

Unfortunately, I can’t spare the money to get this report released at the moment. However, as an experiment, I decided to create a ChipIn widget. If you believe it’s important that this report is released to the public and are willing to invest money in it, you can pledge part or all of the fee using the Chipin Widget. If all of the money is raised (or at least most of it; I’m willing to use some of my own money), I will use it to obtain a copy of the report, scan it, and post the scans on the internet. If I don’t manage to raise enough money to get the report released within two weeks, all the money that has been raised will be refunded to the donors.

Next, Mr. Guarusso agreed to release the training and policy information. He said the University will provide these documents to me free of charge because there are only a few pages and no redaction is necessary. As soon as I get copies of these documents, I will scan and publish them.

Finally, Giarusso said that the University will not release any disciplinary information about Officer Melendez because he believes that it is exempt from disclosure under the “personnel” exemption to the public records law.

It’s true that there is a “personnel” exemption to the public records law for certain types of information about government employees in Massachusetts, however, I don’t believe that this exemption applies to disciplinary information about police officers. I tried to contact Giarusso by telephone to discuss this with him, but he told me has no understanding of the public records law and simply writes what his lawyers tell him to. He redirected me to Deirde Heatwole, General Counsel for the University of Massachusetts System.

Yesterday, I sent an email to Heatwole explaining why I do not believe the “personnel” exemption applies to police disciplinary information and asking her to release the information:

Deirdre Heatwole,

I recently filed a public records request with the University of Massachusetts Lowell in an attempt to get copies of several records related to an incident involving the campus police which occurred earlier this year. During the incident, UMass Lowell Police Officer Noberto Melendez threatened a student for video-recording him, saying “Shut that fucking thing off before I slap you.” According to UMass Lowell Police Chief Randolph Brashears, this incident resulted in an internal investigation into Officer Melendez’s behavior. Chief Brashears told me that allegations of misconduct were sustained against Officer Melendez and that he was subjected to disciplinary action, however, he would not say what kind of disciplinary action.

Because I was unsatisfied with this response, I sent a public records request to UMass Lowell seeking copies of the internal affairs report, records of the disciplinary action taken against Officer Melendez, and training and policy information. I received a response to this request from Jack Giarusso, Executive Director of Human Resources. Mr. Giarusso agreed to release the internal affairs report and training and policy information, however, he refused to release any disciplinary information about Officer Melendez. When I contacted Mr. Giarusso to discuss his refusal to release this information, he directed me to you.

Mr. Giarusso’s letter claims that “any information regarding any personnel decisions regarding Officer Melendez, including any disciplinary information, is exempt from disclosure under ch. 4, s. 7, cl. 27 (c) as ‘personnel’ information.”

While this statement may reflect the honest opinion of Mr. Giarusso and his legal advisers, it is false. The issue of whether or not disciplinary information about police officers falls under the “personnel” exemption has already been addressed by the judiciary in Massachusetts.

In a case heard by the Appeals Court (Worcester Telegram & Gazette Corporation vs. Chief of Police of Worcester & another. (AC 02-P-1632) 58 Mass. App. Ct. 1 (2003)), the Worcester Police Department refused to comply with a newspaper’s request to release internal affairs information about an officer who had been accused of misconduct by citing the “personnel” exemption. The Court “conclude[d] that materials in an internal affairs investigation are different in kind from the ordinary evaluations, performance assessments and disciplinary determinations encompassed in the public records exemption for ‘personnel [file] or information.’”

The reason the Appeals Court concluded that such information is not exempt “personnel” information is that the internal affairs process “is a formalized citizen complaint procedure, separate and independent from ordinary employment evaluation and assessment” with the primary purpose of “foster[ing] the public’s trust and confidence in the integrity of the police department, its employees, and its processes for investigating complaints because the department has the integrity to discipline itself.” The Court noted that “It would be odd, indeed, to shield from the light of public scrutiny as ‘personnel [file] or information’ the workings and determinations of a process whose quintessential purpose is to inspire public confidence.”

It was mentioned in the letter I received that disciplinary information regarding Officer Melendez “is not part of the internal affairs investigation file,” however, this is irrelevant. As the Appeals Court noted, “the legislative term ‘personnel [file] or information’ derives its meaning from the nature or character of the document, not from its label or its repository.” Even if records of the disciplinary action taken against Officer Melendez were placed in a folder labeled “personnel information” rather than in the internal affairs file, this does not alter the “nature or character” of the information. This disciplinary information is still part of a ” formalized citizen complaint procedure” with the purpose of “foster[ing] the public’s trust and confidence in the integrity of the police department.”

It should be noted that there are certain types of documents containing disciplinary information about police officers that do fall under the “personnel” exemption. In the previously mentioned court case, the Appeals Court refused to release a memo to a police officer informing him that no disciplinary action would be taken against him. However, it is important to note that the Court did so because the memo was an “actual order and notice of disciplinary action issued as a personnel matter,” not simply because the memo contained disciplinary information. Other records containing the same information are available to members of the public who request them.

Because I disagree with Mr. Giarusso’s refusal to disclose disciplinary information about Officer Melendez related to his threat to slap a student for video-recording him, I am asking you to reconsider my request. I request that you provide me with a list of all documents in possession of the University containing this disciplinary information. I also request that you tell me which of these documents you believe to be public records and which you believe are exempt from the public records law.

If you believe that any of these documents are not public records, you are obligated to explain to me why. As Secretary of the Commonwealth William Galvin writes in his publication “A Guide to the Massachusetts Public Records Law,” a “denial [of a public records request] must include a citation to one of the statutory exemptions upon which the records custodian relies, and must explain why the exemption applies” (emphasis added). Galvin also writes that “If a records custodian claims an exemption and withholds a record, the records custodian has the burden of showing how the exemption applies to the record and why it should be withheld” (emphasis added). In other words, it is not enough to simply claim, as Mr. Giarusso did in his letter, that disciplinary information about UMass police officers is exempt “personnel” information. If the University wishes to withhold this information, a representative of the University must articulate specific facts about the records in question in order to explain how the exemption applies.

Please be aware that failure to appropriately respond to this letter in a timely manner will result in an appeal being filed with the Supervisor of Records and possibly other action.

I appreciate you taking time to read over and consider this letter. I look forward to hearing back from you soon.

When I get a response to the email, I’ll post an update.

Stay safe out there, cop blockers.

University refuses to disclose disciplinary information about campus police is a post from Cop Block - Badges Don't Grant Extra Rights

This article has been cross-posted at Massachusetts Cop Block

In October, I wrote about how a UMass Lowell student was threatened by a campus police officer for video-recording him. Brendan Brown was recording the police respond to a fight outside an apartment when he was confronted by a police officer and told to “Shut that fucking thing off before I slap you.”

In case you missed the first post, you can check out the video below:

In my first article about the incident, I reported that UMass Lowell Police Chief Randolph Brashears was investigating the incident and said that he would tell me about the results of the investigation once it was complete.

Yesterday, I finally received a (snail mail) letter from Chief Brashears. Here’s what the letter said (click here for scan in .jpeg format):

I want to thank you again for being the first to bring the matter of the Youtube video to my attention. Officer Noberto Melendez was investigated for his comments to the student on October 8th that was captured on camera. The subsequent allegations against the officer were sustained and he will be disciplined in accordance with University policy and the Teamsters union.

This unfortunate event has given us the opportunity to retrain our entire department concerning recent court decisions that allow citizens to film police and victims of crime who are interacting with the police.

Thanks again for contacting our agency.

I was glad to read certain parts of this letter. It’s good that Chief Brashears has voluntarily released the name of the officer who threatened the student. It’s also good to hear that he sustained the complaint against the officer.

But it’s not enough for Chief Brashears to simply claim that the officer will be disciplined without providing any details. Unless he is transparent enough to say how the officer will be disciplined, there’s no reason for us to believe that he has actually done anything. Even if the officer is disciplined, we can’t gauge whether the discipline was appropriate unless we know how he was disciplined.

Since I believe that Chief Brashears hasn’t been sufficiently transparent about this incident, I decided to send a public records request to his department. I sent out two copies of the request. One was a physical copy that I sent through traditional mail. The other was an electronic copy that I sent via email.

Under the Massachusetts Public Records Law, anyone can send a request to any state or local government agency in Massachusetts for copies of records kept by that agency. Government agencies are required to respond to these requests within 10 days and must agree to release the records unless they contain certain types of information that are exempt from disclosure. They may charge fees for providing the copies, but there are some limitations on how much they can charge. (Check here for more information about making public records requests in Massachusetts.)

Unfortunately, there are problems with the public records law. As The Boston Globe documented in a 2009 article, government agencies are often able to get away with wrongfully delaying the release of time sensitive information, using loopholes to charge exorbitant amounts of money for records, illegally destroying public records, and even flat out ignoring requests.

Nevertheless, making public records requests is one of the best options people have for getting answers to questions they have about government agencies in Massachusetts.

The request I sent to Chief Brashears asks for copies of any documents related to his investigation of Officer Melendez (my hope is that the file will contain information about how Melendez was disciplined) as well as documents related to the training he said his officers have received.

You can read the request I sent out below (click here for .pdf version):

This is a request under the Massachusetts Public Records Law (M. G. L. Chapter 66, Section 10). As you may be aware, the Public Records Law requires you to provide me with a written response within 10 calendar days. If you cannot comply with my request, you are statutorily required to provide an explanation in writing.

We recently communicated about an incident during which UMass Lowell police officer Noberto Melendez threatened a student for video-recording him. During our correspondence, you were helpful and provided some information to me, however, I feel that there are certain details about this incident that the public should be informed about that you have yet to disclose.

In our previous correspondence, you said that you had investigated Officer Melendez over his conduct. I would like for you to provide me with copies of all documents related to this investigation.

You also said that you had sustained allegations against Officer Melendez and had plans to discipline him “in accordance with University policy and the Teamsters union.” However, you did not say how you planned to discipline him. I would like to know in advance whether or not the file on the investigation contains specific information about what discipline Officer Melendez will be subjected to.

You may be aware that there is an exemption to the public records law for personnel information, however, you should also be aware that this exemption does not apply to documents related to internal investigations by police agencies. The Massachusetts Appeals Court has ruled that “materials in an internal affairs investigation are different in kind from the ordinary evaluations, performance assessments and disciplinary determinations encompassed in the public records exemption for ‘personnel [file] or information’” and are subject to disclosure under the public records law (Worcester Telegram & Gazette Corporation vs. Chief of Police of Worcester & another. (AC 02-P-1632) 58 Mass. App. Ct. 1 (2003)).

In our previous correspondence, you also mentioned that your department has been “retrain[ed]… concerning recent court decisions that allow citizens to film police and victims of crime who are interacting with the police.” I would like copies of any documents related to this training including but not limited to policy memos circulated within the department. I would also like a copy of the department’s written policy on dealing with members of the public who record police officers.

I recognize that you may charge reasonable costs for copies, as well as for personnel time needed to comply with this request. If you expect costs to exceed $10.00, please provide a detailed fee estimate. I would appreciate it if you waived any fees associated with the fulfillment of this request as I believe the release of these documents is in the public interest.

I appreciate you taking time to read over and consider this public records request. I look forward to hearing back from you soon.

Chief Brashears told me in an email that he has forwarded the electronic copy of the request to the department’s attorney. I’ll post an update when I get a response.

Chief says officer was disciplined, but doesn’t say how is a post from Cop Block - Badges Don't Grant Extra Rights

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In an opinion released on August 26, 2011, the U.S. Court of Appeals for the First Circuit ruled that a private citizen’s right to videotape police officers performing their duties in a public space is “unambiguously” protected by the First Amendment. Glik v. Cunniffe, et al., No. 10-1764 (1st Cir. Aug. 26, 2011).

In 2007, Simon Glik encountered three police officers making an arrest in the Boston Common. Concerned that the officers were using excessive force,  he began to record video footage of the arrest with his cell phone. One of the officers told Glik, “I think you have taken enough pictures,” and Glik replied that he was videotaping the arrest. When Glik affirmed that his cell phone recorded audio, he was arrested and subsequently charged with violation of Massachusetts’ wiretap statute, disturbing the peace and aiding in the escape of a prisoner. The latter charge was voluntarily dismissed for lack of probable cause and, in 2008, the Boston Municipal Court granted Glik’s motion to dismiss the remaining two charges. Thereafter, Glik filed a civil rights action against the officers and the City of Boston in the U.S. District Court for the District of Massachusetts, alleging claims under 42 U.S.C. § 1983 for violations of his First and Fourth Amendment rights, in addition to various state law claims. The district court denied the police officers’ motion to dismiss Glik’s complaint on qualified immunity grounds, and the defendants immediately appealed the ruling to the First Circuit on interlocutory review.

To determine whether public officials are entitled to qualified immunity, the court considers whether the facts alleged by the plaintiff make out a violation of a constitutional right and, if so, whether the right was “clearly established” at the time of the defendant’s alleged violation. With regard to Glik’s First Amendment claim, the First Circuit unequivocally concluded that there is a constitutionally protected right to videotape police carrying out their duties in public, explaining that “[i]t is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws ‘abridging the freedom of speech, or of the press,’ and encompasses a range of conduct related to the gathering and dissemination of information.”

The court cited precedent firmly establishing that videotaping of public officials is an exercise of First Amendment liberties and observed that gathering information on government officials protects free discussion of government affairs, aids in the uncovering of abuses, and promotes effective functioning of government. Although the right to film is subject to reasonable time, place and manner restrictions, the court opined that the peaceful recording of an arrest in a public space that does not interfere with police duties is not reasonably subject to limitation.

The First Amendment right to gather news does not only inure to the benefit of the news media, but also to the benefit of private individuals, the court further noted. Recognizing that evolving technology has allowed private citizens to increasingly contribute to news gathering and dissemination, the First Circuit stated:

Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

In addition, the First Circuit concluded that Glik’s Fourth Amendment rights were violated by his arrest without probable cause, relying on the fact that his recording in plain view was not “secret” within the meaning of the state wiretap statute. Even if the officers did not actually know that Glik was recording audio on his cell phone, the court found that the conspicuous use of a cell phone commonly known to record audio is sufficient evidence from which to infer actual knowledge of the recording.

Rodman Gomez

Breaking Down the Police Videotaping Decision is a post from Cop Block - Badges Don't Grant Extra Rights

This article was cross-posted at Massachusetts Cop Block

“Shut that fucking thing off before I slap you!”

Those are the words that UMass Lowell student Brendan Brown heard shortly after he trained his cell phone camera on several campus police officers last Saturday.

Brown told me that he was leaving a friend’s house when he noticed a “big brawl” taking place outside an apartment. When police appeared on the scene to break up the fight, Brown stood a reasonable distance away from the action, took out his cell phone, and began documenting the activity. In less than a minute, the officers turned to face Brown and one asked him, “You all set over there with the camera?”

“Yeah, I’m all set,” Brown responded.

“Yeah, who are you?” the officer asked.

While Brown explained to the police that he was merely observing what was going on, an officer began walking toward him. That’s when the officer threatened to assault Brown.

After being threatened by the officer, Brown decided to comply with his demand “rather than to be possibly beat up and thrown in jail.”

In the case Commonwealth v. Hyde, a musician’s felony wiretapping conviction was upheld by the Massachusetts Supreme Judicial Court after he recorded police during a traffic stop, however, Hyde’s conviction stemmed from the fact that he made a secret audio-recording of police with a hidden tape recorder.

Openly recording police officers — like Brown was doing — is not a crime. As the SJC observed in Hyde, Hyde’s arrest and conviction “could have been avoided if, at the outset of the traffic stop, [he] had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight. Had he done so, his recording would not have been secret, and so would not have violated” the wiretapping statute.

More recently, a federal appeals court ruled that openly recording police officers in Massachusetts is an activity that is protected by the First Amendment and police officers may be sued for interfering with people who record them.

In fact, it’s legal to audio and video-record police virtually everywhere in the United States. The only major exception is the state of Illinois which currently has an “eavesdropping” law that criminalizes even openly audio-recording one’s own interactions with police officers without their consent. Despite the fact that recording police is generally legal, there have been hundreds of documented cases of police harassing, threatening, assaulting, and even arresting people for recording police activity in recent years.

But just because it’s become all too common for police to interfere (oftentimes violently) with people who record them does not mean that it’s acceptable. The officer who threatened Brown wasn’t simply disrespectful or unprofessional. What he did is a crime and he deserves to face consequences for it.

That officer deserves to lose his job. No person who believes he has the right to threaten to assault other individuals for something that is not only legal, but is protected by the First Amendment, has any business being a police officer. When you commit a serious crime like threatening someone without provocation, you don’t deserve a second chance with the badge.

The officer in the video should also be facing criminal charges. If Brown had approached a police officer and threatened to hit him, you can bet he would have ended up in jail. Police officers who make criminal threats don’t deserve to be treated any differently.

Brown agrees that his rights were violated, but told me that he has no plans to seek accountability from the campus police over the incident because he was unable to identify the officer who threatened him.

“If I had correctly identified the officer who made the threat, I would want him to be held entirely accountable and face whatever repercussions are given for this type of behavior. However since that is not the case, the awareness brought by this video is satisfying enough for people and especially UMass Lowell students to know what is going on and how business is being conducted by these public servants,” he told me.

However, Brown did say that the school’s student trustee, whom he described as a good friend, was aware of the video and was considering discussing it with the UMass Lowell Police Chief.

I decided that before I publish anything about the video, it would be fair to get a comment from the UMass Lowell Police Department so I sent in an email that included a link to the video and some related questions. I quickly received a response from UMass Lowell Police Chief Randolph E. Brashears.

Chief Brashears did not respond to any of my questions, but assured me that his department “take[s] citizen complaints seriously.” Though he did not comment on the department’s policy with respect to recording police activity, he did say that “The students involved have nothing to fear from our agency as I did not see any violations of the law on their part from the short video clip.” He said he will get back to me when he finishes investigating the incident.

I suggest contacting the UMass Lowell Police Department to let them know that the behavior of the officer in the video is unacceptable. You can contact the department on their non-emergency phone line at 978-934-2398. You can email the department at police@uml.edu or you can email Chief Brashears directly at Randolph_Brashears@uml.edu.

I will post an update on this case as soon as more information becomes available.

“Shut that fucking thing off before I slap you!” is a post from Cop Block - Badges Don't Grant Extra Rights

>>National Chalk the Police Day – Oct 1st<<

First, watch the 2min video above,
then check out the following:

Latest update from Ustream
Synopsis of Saturday, June 4th 2011 incident
More-exhaustive overview from August 31st, 2011
How you can help
Related links
Continue your education
Individuals involved

Latest update from Ustream

Synopsis of Saturday, June 4th 2011 incident

A pro-police accountability rally held outside the Manchester Police Department to draw attention to the dubious killing of resident James Breton and clearing of officers who savagely beat Christopher Micklovich resulted in the unjust arrest of eight and the seizure of nine cameras and phones (without the issuance of receipts).

The rationale cited for the heavy police response? That some of those present had used children’s chalk to write on the sidewalk and building’s exterior walls, resulting in graffiti and criminal mischief charges, and that some were part of a group that didn’t move fast enough when pictures were being taken of “evidence” (chalked statements), resulting in disorderly and resisting charges.

The reality? Those wearing badges didn’t like their authority questioned and reacted using the only tool they know: force. There was no victim or damage to property in the offenses alleged. The arrests, charges and pending court dates are nothing more than harassment intended to chill dissent.

More-exhaustive overview from August 31st, 2011

My colleague (Ademo Freeman) and I (Pete Eyre) were two of those arrested outside the Manchester PD now facing charges, which has forced us to delay our next tour (see: LibertyOnTour.com & MotorhomeDiaries.com). We yesterday relocated from Keene to Manchester, where, working with others on the ground, we’ll be better-able to get our names cleared. The sooner that happens the sooner we can move on with our life and projects, hold accountable the real criminals and embolden others to stand up for their rights.

We know we’re not in the wrong and that we don’t need to go to law school for three years to know how to tell the truth. Instead, believing the light of truth a potent disinfectant, we seek to bring as much attention to the situation using diverse tactics aligned with our principles (non-aggression and consensual interactions). And we’ll film our activities to be transparent and share ideas with those elsewhere.

As I stated in the video at the top of this post, we’ve been fortunate to meet a lot of people and thus far the only folks who have threatened or used force against us were wearing badges. On June 4th it was those wearing “Manchester Police Department” badges that aggressed upon our rights and who continue to waste taxpayer money to pursue these ridiculous charges (money that was, remind yourself, first stolen from you).

We never seek to get arrested. The actions of John Patti and his colleagues at the Manchester PD on June 4th demonstrate the hollowness of their claim to “serve and protect.” Police brutality, corruption and double-standards won’t stop with the creation of a civilian review board or another internal investigation; they will cease only when we each conclude that no one has the right to initiate force.

Our intention is always to educate. To share the novel idea of self-ownership – that we each own ourselves and thus are free to act so long as we don’t initiate force against another. That means that no one has extra rights, even those who wear a badge.

Thus far we’ve been “successful” confronting threats of force pro se (as successful as you can be defending yourself against people who interpret the same “law” they create). We’ve had charges dropped or were found not-guilty in Greenfield, MA, Keene (Ademo), Keene (Pete), Las Vegas (Ademo) and Jones Co. MS (*Ademo hung jury). We’ve also stood for our rights in hairy situations we thought we must (see: Edgewater, NJ, Sante Fe, NM, west Texas, and Detroit/Windsor). And we have been transparent with previous donations (see: donations in Jones Co., MS and donations in Greenfield, MA).

Also, the recent Glik ruling in the First Circuit Court of Appeals bodes well for seeking transparency and accountability of those who wear badges.

How you can help

Donate using the Chipin below to help cover the costs we’ll incur while being on the ground here in Manchester – food, gas, printing, events and outreach, etc. If you have specific ideas on the “.etc” – on tactics we should consider, please do share your idea as a comment to this post or via our submission form. We’ll leverage each dollar donated to get the greatest return on your investment.

Another option is to help us while getting yourself something like a t-shirt, intro/outro to a video, or a Power-a-Post by myself or Ademo (we’ll give you a shout-out on the post and include a link to your own site or we’ll give some love to your favorite thinker, organization or piece of content). See: CopBlock.org/Support

Also, we’re hoping to replace and step-up some of our tech gear before our next tour, so if you want to donate for specific items that’d be cool.

Thanks in advance! We’re serious when we advocate for “liberty in our lifetime!”

Related links

Manchester PD Tickets MARV [VIDEO]- Sept. 9th
Manchester PD & Bureaucrat Outreach [VIDEO]- Sept. 8th
Manch PD Violate Court Ruling [VIDEO] – Sept. 6th
Supporters Help CopBlock.org Bloggers -Sept. 4th
Chalk the Police press release – Aug. 31st
Court to police: Let the public videotape – Aug. 31st by The Union Leader
Appeals court says there’s a clearly established right to openly record police – Aug. 29th
Manch Arraignment & PD Follow-up – June 7th update about going-ons since arrests on LibertyOnTour.com
Eight Arrested at Manchester, NH Pro-Police Accountability Rally [VIDEO] – June 5th post about incident on CopBlock.org
Eight arrested in protest of Manchester police – June 5th coverage of incident by The Union Leader
Demonstration at the Manchester Police Station – June 4th event on Facebook
LOT Watches The Watchmen – press release sent to Manchester PD (and others) about pending patrol on LibertyOnTour.com
Calling All Manchester Activists – May 31st post outlining week-long activities in Manchester on LibertyOnTour.com
Attorney General clears officers involved in Strange Brew incident – May 27th by The Union Leader
SWAT team had relieved city force – May 10th by The Union Leader

Continue your education

Cop Block’s About/Contributors Page
I’m Allowed to Rob You! 10min video by Larken Rose
Non-aggression principle on Wikipedia
Private Defense Agency on Wikipeda
Voluntaryism on Wikipedia

Individuals involved

(will be expanded-upon):
judge William H. Lyons (603) 624-6510 on NH Judicial Branch website
Manchester PD non-emergency number 603.668.8711
John Patti, Manchester Police Department employee – initiated arrests

Manchester’s Chalking 8 is a post from Cop Block - "Something must be done about vengeance, a badge, and a gun"

I’m excited to see this ruling, especially after Pete’s and my acquittal on wiretapping charges, and hope it plays a factor in Beau’s charges. Maybe the Greenfield, and all other, police will finally stop harassing people for filming? We’ll see….

(Posted at Citizen Media Law Project by Jeffery P. Hermes)

My apologies to Justin Silverman for bumping the second half of his excellent blog post about the BART phone blackout with this breaking news — I urge you to read Justin’s posts as well. 

The CMLP is thrilled to report that in the case of Glik v. Cunniffe, which the CMLP has blogged previously and in which the CMLP attempted to file an amicus brief, the U.S. Court of Appeals for the First Circuit has issued a resounding and unanimous opinion in support of the First Amendment right to record the actions of police in public.

For those of you not familiar with Simon Glik’s case, Glik was arrested on October 1, 2007, after openly using his cell phone to record three police officers arresting a suspect on Boston Common.   In return for his efforts to record what he suspected might be police brutality — in a pattern that is now all too familiar — Glik was charged with criminal violation of the Massachusetts wiretap act, aiding the escape of a prisoner and disturbing the peace.

As tends to happen in cases like these, the charges didn’t hold up, with the Commonwealth dismissing the aiding escape charge and the Boston Municipal Court dismissing the remaining charges.  But unlike most arrestees, Glik, with the assistance of the ACLU, fought back against this treatment.  He filed an internal affairs complaint with the Boston Police Department, but the BPD neither investigated the complaint nor initiated any disciplinary action.

Undeterred, in February 2010, Glik filed suit in federal court against the officers and the City of Boston under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act.  Glik alleged that the police officers violated his First Amendment right to record police activity in public and that  the officers violated his Fourth Amendment rights by arresting him without probable cause to believe a crime had occurred.

Naturally, the police officers moved to dismiss on the basis of qualified immunity, but Judge Young was having none of that.  The police officers then appealed to the First Circuit, but they have now struck out on appeal as well, with the First Circuit ruling that “Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.”

Pardon me while I bask in the warm glow of that sentence for a moment.  Let’s see if we can find some more excellent quotations.

• “[I]s there a constitutionally protected right to videotape police carrying out their duties in public?  Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”
• “Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum.  In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are ‘sharply circumscribed.’”
• “[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
• “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’”

I’ve got chills.  Let’s hope that last quotation helps us find some more room for cameras in the federal courts.

The First Circuit relied on its earlier opinion in Iacobucci v. Boulter, as well as a plethora of decisions from other courts, in holding that the First Amendment right to record public officials in public spaces had been well established.  The Court also dismissed the suggestion that the discussion of the First Amendment right to record in Iacobucci was too cursory to clearly establish the right.  To the contrary, the Court stated that “[t]he terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment’s protections in this area.”

“Self-evident.” They actually said “self-evident.”

The Court also rejected any distinction of those cases based upon the fact that Glik was not a reporter, holding that “[t]he First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media” and noting the importance of citizen journalists:

[C]hanges in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw.  The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper.  Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

(Meanwhile, over in the state courts, the Supreme Judicial Court of Massachusetts is currently mulling over amendments to SJC Rule 1:19 – Massachusetts’ cameras in the courtroom rule — that would expand the role of citizen journalists in the courts of the Commonwealth.  We’re getting there, folks.)

On the Fourth Amendment side, the police officers fared no better with their argument that they had probable cause to arrest Glik under the wiretap law.  The argument before the First Circuit turned on the question of whether Glik’s recording of audio could be considered “secret,” as required by M.G.L. c. 272, § 99, when he was holding his cell phone out in full public view in broad daylight.  The police officers claimed that the audio recording was “secret” as far as they were concerned, because they had no subjective knowledge that Glik was recording audio as opposed to capturing still images or soundless video.

The First Circuit, analyzing Massachusetts state law, found that the question of secrecy turned on “notice, i.e., whether, based on objective indicators, such as the presence of a recording device in plain view, one can infer that the subject was aware that she might be recorded.” (emphasis added)  That invocation of an objective standard for secrecy doomed the police officers’ argument.  The Court noted that Glik’s complaint alleged that he was recording openly and that the police were aware of his activity, and thus held that Glik’s conduct “falls plainly outside the type of clandestine recording targeted by the wiretap statute.”

The Court also rejected the police officers’ reliance on their claim that they were unaware Glik was recording audio specifically, because Glik’s complaint alleged that the police were at least aware that the device could record audio:  “Simply put, a straightforward reading of the statute and case law cannot support the suggestion that a recording made with a device known to record audio and held in plain view is ‘secret.’”  Accordingly, the Court stated:

The presence of probable cause was not even arguable here. … For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was ‘secret’ merely because the officer did not have actual knowledge of whether audio was being recorded.

So, clearly established First Amendment right to record the police in public – check.  Clearly established Fourth Amendment right against being arrested for violating the wiretap act when you’re openly recording in public – check.  Even though I’m sitting in Cambridge with the eye of Hurricane Irene staring right at me, I can’t help but feel that a ray of sunlight has just pierced the clouds.

This isn’t the end of Glik’s case, of course.  The First Circuit’s opinion is based on the facts as alleged on the face of Glik’s complaint, and the case now goes back to the District Court where Glik will be required to prove those facts.  One can only assume that his audiovisual recording will help.  But an opinion this strong can only help to halt the epidemic of photographer and videographer arrests that has been sweeping the country.

(On a personal note, I was present at the hearing before the First Circuit, and want to say that I was very impressed by the attorneys for both sides.  In particular, Ian Prior, counsel for the City of Boston and a former colleague of mine from my law firm days, did an excellent job arguing a difficult case.)

A Victory for Recording in Public! by J. Hermes is a post from Cop Block - "Something must be done about vengeance, a badge, and a gun"

The basic cable network, truTV, has announced it will air the January, 2011 trial of former Pelham, MA Police Chief Edward Fleury on charges of Involuntary Manslaughter and Furnishing Firearms to a Minor on their network. The back story is a genuine tragedy, but it didn’t get a lot of play in the media outside Massachusetts. The unfortunate circumstance came to pass back in October 2008, and ended with the death of  8-year-old Christopher Bizilj, who accidentally shot himself through the head with a micro-UZI at a gun show and machine gun shoot put on by Fluery’s company, COPS Firearms & Training, in conjunction with the Westfield Sportsman’s Club, where the event occurred. The police chief was promptly indicted on the aforementioned charges, and was the only person ever considered a suspect in the case.

The boy’s father, Dr. Charles Bizilj, actually captured the entire incident on a video camera, and the recording was played back for the jury during the trial, though defense counsel did attempt to have it barred in its entirety, and then just the audio. The motion failed at the later, but succeeding on the former, due to the judge’s ruling that the audio was so disturbing and traumatic that it would have been prejudicial. It’s unclear just how much of this horrific footage will be shown on the cable network, but at least some of it will air on truTV. The boy did manage to accidentally blow the back of his head off, so chances are that the most graphic portions will be redacted.

So, why is this of interest to CopBlock.org? The accused was formerly a Police Chief in Massachusetts, a state known for its hostility to individual gun rights, where it is commonly held that police are The Only Ones who can or should be trusted with firearms. His company gave people access to and the opportunity to handle and shoot firearms otherwise legally out of their reach, e.g. fully automatic weapons like UZI’s and M-16′s. For some, the desire for that kind of experience is irresistible (I confess, I’d be very tempted to go to such an exhibition myself). The fact that it was being run by an ex-cop, a former chief no less, must have also added to the trust factor, given people’s perceptions (however erroneous) about their level of competence and training with guns.

Finally, regular readers of this site will not be surprised to learn the ultimate verdict of this trial. Fleury was acquitted, as is so often the case with police officers who are charged with crimes. For a variety of reasons, the whole incident ultimately demonstrates a double standard for police. Whether or not that was the case in this trial, I’ll leave up to the viewer, but I have a hard time believing any mere mundane would have gotten off, let alone faced such light charges to begin with.

It’s clear taking an 8-year-old boy to a machine gun shoot was a serious parental lapse in judgment. However, the responsibility for the safety of the event and the decision as to who could fire which guns ultimately belonged to the Rangemaster. This is the case at any gun club or firing range, especially when the guns belong to the event sponsors, and not the shooters themselves. Proper function, safety instruction, ensuring eye and ear protection are worn, etc. are all responsibilities that fall upon those hosting the event.

In this case, everyone failed that little boy including his father, Fleury, and all the adults present who failed to intervene when the gun was given to Chris Bizilj. Ironically, it was an uncertified 15-year-old boy who was trying to help Chris and other kids fire these weapons who actually told the boy’s father, Dr. Bizilj, “it wasn’t a good idea” to let his son fire the micro-UZI. Sadly, Dr. Bizilj ignored this advice. He did sign a waiver acknowledging that the risks of participation were numerous, up to and including death. Perhaps his biggest mistake was putting his faith and trust in the judgment of Fleury and the COPS Firearms & Training company, a decision he made after consulting with friends and coming to the conclusion it would be safe and well-supervised because it was run by a Police Chief. But even just a cursory investigation would have turned up evidence of Fleury’s lack of judgement in the safe handling of firearms, for which he was disciplined in 2003, after accidentally discharging a rifle during a gun safety demonstration. Maybe it would have changed Bizilj’s mind. Maybe not.

If there’s one thing to take away from this tragedy, it’s that police officers are no more deserving of our trust, nor should we assume they are more competent or “well-trained” in the use of firearms, the law, or anything else for that matter, than so-called “civilians.” Such misplaced faith can have tragic, even fatal consequences, as it did in this case. I can’t honestly say if the criminal case has much merit, or if it is the proper venue to seek justice (if there is any justice to be had), or even who is really at fault, but I can say that a serious lapse in judgement occurred, as even the prosecutors acknowledged in their decision not to prosecute the father, whom they said “was a layman and based his decision to allow his sons to fire the gun on information from others who should have known it was too dangerous.” Those “others,” of course, being Fleury and his COPS.

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Ex Pelham, MA Police Chief’s Trial To Be Aired is a post from Cop Block - "Something must be done about vengeance, a badge, and a gun"