Boston police ban journalist from contacting DA's office
Over the past week, detectives from the Boston Police Department have threatened a journalist from The Bay State Examiner for making phone calls to the Suffolk County District Attorney's Office and ejected a second journalist from the DA's office when she attempted to make a public records request in person. Their actions are part of a pattern of harassment and intimidation of citizen journalists who document police activity.
As part of an investigation of police shootings in Massachusetts, The Bay State Examiner has been requesting documents from police departments and district attorney's offices throughout the state.
In a public records request mailed to the Suffolk County District Attorney's Office by BSE reporter Andrew, the Examiner mistakenly wrote that it was requesting Massachusetts State Police records. The error was made because the public records requests we send often contain very similar language. In this case, Andrew failed to revise text that had been cut and pasted from a request to the state police.
The request asked for “written procedures for investigating police-involved shootings and other uses of deadly force by police.”[ref name="footnote1"] The full text of the request is as follows:
To whom it may concern,
This is a request under the Massachusetts Public Records Law (M. G. L. Chapter 66, Section 10) for records from the Massachusetts State Police. 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.
I would like a copy of your office's written procedures for investigating police-involved shootings and other uses of deadly force by police.
Please provide a list of all documents that my request applies to as soon as possible. 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.
If you withold any of the requested records under an exemption to the public records law, please specify which exemptions you are citing and articulate why the exemption applies to the record in question.
I appreciate you taking time to read over and consider this public records request. I look forward to hearing back from you soon.
In her response letter, Assistant District Attorney Allison Callahan wrote that the DA's “office does not maintain the policies and procedures for the Massachusetts State Police."[ref name="footnote2"][/ref]
In order to resolve the misunderstanding, Andrew decided to contact Callahan by phone using the phone number that she provided in her response letter.
Last Thursday (December 12), Andrew made a recorded phone call to the number and spoke to a man from the appeals division. The man refused to transfer Andrew to the Assistant DA because he was recording the phone call. He confirmed that Callahan was in her office and only refused to speak because the call was being recorded. The man confirmed that there was no official written policy against speaking to people who recorded phone calls, but said it was a “position” of the DA's office.
Bay State Examiner policy is to record all phone calls unless there is an extremely compelling reason not to. The policy is in place for the purposes of accuracy, transparency, and journalistic integrity. Andrew declined to stop recording and was not allowed to speak to Callahan.
Andrew called back a second time on Friday (December 13) and was again told by the same employee that he would not be transferred because he was recording the call. Andrew stated that he didn't want the assistant DA to feel ambushed, so he would give her the rest of the day and the weekend to review their correspondence, which amounted to less than a page of text, and call back early the next week. He also learned that the man he was speaking to was named Tony Reilly/Riley (spelling unknown).
Unfortunately, the recordings of these first two calls were accidentally lost.
Andrew waited until Tuesday (December 17) before calling back. Andrew spoke to Reilly/Riley who again refused to transfer him to the Assistant DA and then hung up abruptly. Andrew called back twice before Reilly/Riley picked up and then asked to speak to the Assistant DA or "someone else if she's not available." Reilly/Riley hung up again. Andrew had to call back several more times before Reilly/Riley answered the phone. Andrew asked to speak to Reilly's/Riley's supervisor and was hung up on again. Andrew called back several times before a different person, who did not identify himself, answered the phone. This person accused Andrew of committing a "criminal act" by recording the call and told him to call back without recording. Andrew called back several more times, but the man never answered the phone. He finally gave up.
More than half an hour later, Andrew received a threatening phone call from two police detectives which he recorded. The detectives claimed to be responsible for the security of the DA's office, but did not say what police department they worked for. The detective who was speaking said his name, but it was unintelligible. He said the call was on speaker phone and that a Detective Rivers was listening in. We later determined him to be Bryan Rivers (Badge #6420) of the Boston Police Department.
The detective informed Andrew that if he ever called the DA's office again, the police would file a criminal harassment charge against him.
“I'm directing you to stop calling the district attorney's office. If it continues, we're going to file criminal complaints,” the detective said. “It's becoming borderline harassment right now.”
The detective claimed that Andrew would not "back off," was “scary,” and was “aggressive” – a strange set of conclusion considering Andrew had been told to call back by the last person he had spoken with and had already ceased calling the DA's office for some time.
According to Massachusetts law, repeated phone calls can only be construed as harassment if they are made “for the sole purpose of harassing, annoying or molesting the person or the person’s family” or contain “indecent or obscene language,” neither of which was true of Andrew's calls. He was polite and only called back when he had further questions, but had been abruptly hung up on before he could ask them.
The threat has created a sort of extrajudicial restraining order that prevents Andrew from contacting public officials for legitimate reasons. A harassment conviction can be punished by up to three months in jail and a $500 fine.
The detective told Andrew that he could call a Lieutenant Greene, later confirmed to be Lieutenant Detective Bernard E. Greene, Jr. (Badge #90) of the Boston Police Department. Despite telling Andrew to never call the DA's office again, the callback number he provided was the general number for the DA's office – the same one posted on their website.
Boston police refuse to allow reporter to hand deliver records requests
Since the district attorney's office was unwilling to resolve the matter by phone, we decided to make additional public records requests in person. We decided that Andrew should not enter the office in order to avoid any possible claims of harassment.
On Thursday (December 19), BSE reporter Maya entered the Suffolk County District Attorney's Office with two cameras rolling to hand deliver two records requests and to try to meet with Lt. Det. Greene to clear up he issue of the declared ban on Andrew. Maya spoke with the receptionist, who was friendly and professional and even jokingly told Maya “Film my good side.” She attempted to have both Callahan and Greene meet with Maya to speak with her.
After a few minutes, Lt. Det. Greene emerged and immediately demanded that Maya stop recording, then threatened to have her physically removed if she failed to comply. Greene claimed that Maya's camera was a security issue and that “We don't film in this building,” despite the fact that a security camera was mounted to a wall within several feet of the interaction.
Under Massachusetts law, it is legal to openly video and audio record others with or without their consent. Massachusetts wiretapping law only criminalizes surreptitious audio recording. The Massachusetts Supreme Judicial Court stated more than a decade ago in the case Commonwealth v. Hyde that a recording is not surreptitious as long as the recording device is "held... in plain sight." Additionally, a federal court ruling in 2011 specifically stated that openly recording public officials is a well-established right protected by the First Amendment. The ruling stemmed from an incident in which a man was arrested for recording Boston police officers making an arrest with his cell phone.
Greene further refused to speak about the threats made against Andrew and forbade Maya from making her records requests, despite the fact that the Massachusetts Public Records Law states that such requests “may be delivered in hand to the office of the custodian.”
Fearing a false arrest, Maya headed towards the elevator door while two more men with badges appeared. Maya requested they also provide their names and badge numbers. Detective Bryan Rivers muttered “Detective Rivers,” but gave no badge number. The other man refused to give any information at all.
“He has a badge, but he doesn't work for the police department,” Greene said of the unidentified man.
Under Massachusetts law, police must carry photo ID cards and present them upon request, however, it is possible the man was a security guard, not a police officer.
After her expulsion, Maya met Andrew in the ground floor lobby. As we were leaving, Andrew spotted an employee of the DA's office walking toward the elevator. He flagged him down and was able to have him accept the records requests without hassle, underscoring the absurdity of Greene's threats against Maya.
According to The Boston Herald, Greene's job paid him $123,961 in 2011. Rivers was paid $73,402.
A pattern of intimidation
The threats made by the Boston police at the district attorney's office are part of a pattern of Boston police officers using intimidation tactics against citizen journalists.
In 2007, a lawyer named Simon Glik was arrested and charged with felony wiretapping for recording Boston police officers making an arrest at the Boston Common.
In 2008, Mark Hynes was arrested and charged with wiretapping for recording at a police station while his friend was filing an incident report. That same year, Boston police arrested Jon Surmacz and charged him with wiretapping after he recorded police breaking up a holiday party that he was attending.
In 2009, Maury Paulino was beaten, pepper sprayed, arrested, and charged with wiretapping for recording Boston police arrest his friend.
The Boston Police Department did not admit it that it was legal to record police until 2012. Later that year, the taxpayers of Boston were forced to pay out over $200,000 in settlements – $170,000 to Simon Glik and $33,000 to Maury Paulino.
Despite these hefty payouts, the intimidation tactics have yet to stop.
Earlier this year, Dorchester resident Jay Kelly was shoved around by a Boston police sergeant detective and threatened with arrest after he started recording the police on a public sidewalk.
Taylor Hardy, a journalist from the popular blog Photography is Not a Crime which is run by longtime journalist and photographers' rights advocate Carlos Miller, called the Boston Police Department media spokesperson seeking information about the Jay Kelly video and recorded the phone call. Boston police charged Hardy, a Florida resident, with violating the Massachusetts wiretapping law despite the fact that he said he was recording the call.
When Carlos Miller began blogging about the charges Hardy was facing, he posted contact information for the media spokesperson that Hardy was accused of wiretapping. The contact information was taken directly from the official Boston Police Department website. The Boston police retaliated by filing a harassment complaint against Miller just like the one that Andrew was threatened with.
Miller and Hardy were able to drum up support and hire a lawyer. Ultimately, all the charges were dropped, but not until after they had spent thousands of dollars on legal fees.
During the ordeal faced by Miller and Hardy, Boston police arrested Tyler Welsh, a Northeastern student, on wiretapping charges. Welsh was arrested for recording Boston police officers during the celebration after the Red Sox won the World Series.