ACLU helps woman beat "interfering" charge brought for recording Somerville police

Jessie Rossman, Wenzday Jane, and Carl Williams outside Somerville District Court. (Credit: ACLU of Massachusetts) The American Civil Liberties Union of Massachusetts has helped a woman who faced criminal charges after recording Somerville police. According to a press release from the ACLU:

The Somerville District Court has dismissed a criminal complaint against Ms. Wenzday Jane, initially applied for by police after Jane video-recorded police questioning three teenagers at a playground in Somerville's Prospect Hill neighborhood.

"Essentially, Ms. Jane was criminally charged because she chose to exercise her constitutionally protected right to record the police," said Jessie Rossman, staff attorney with the American Civil Liberties Union of Massachusetts, which represented Ms. Jane. "We need to encourage more citizens to do what Ms. Jane did. The officer's decision to detain her, apply for a criminal complaint and request a summons is indicative of a broader, troubling trend, in which police continue in a variety of ways to hinder people's right to record their work in public. This is especially troubling in light of the nationwide controversy over police accountability following events like the choking death by police of Eric Garner in New York, captured on video by a bystander." ...

In Ms. Jane's case, the Judge today dismissed the criminal complaint following argument by the ACLU of Massachusetts, agreeing that Ms. Jane had not committed the crime of interfering with the police. The ACLU of Massachusetts had also argued that the complaint should be dismissed because "interfering with police" is not a crime in Massachusetts and because criminalizing Ms. Jane's behavior would violate the First Amendment.

"More than three years ago, the federal First Circuit Court in Boston held in Glik v. Cunniffe that the Constitution protects the right to record the police in public," said Carl Williams, an ACLU of Massachusetts staff attorney who, with Rossman, represented Ms. Jane. "We need to prevent police from using other criminal charges as a backdoor to try getting around Glik to ensure that individuals are able to exercise this First Amendment right without fear of arrest."

It may sound strange, but there is actually no "interfering with police" charge under Massachusetts law. Police and prosecutors sometimes charge people with it as a common law offense, but some lawyers do not believe this is an appropriate use of the common law.

Of course, even if "interfering with police" is a valid charge, the idea that recording the police somehow interferes with them is completely absurd. Pointing a camera at a police officer in no ways stops them from doing their job. If Somerville police stop what they're doing just to harass videographers, then the only people interfering with their work are themselves.

This case is a reminder that there need to be serious consequences for police who violate the right to record them. While there have been successful lawsuits against police for arresting people for recording, they obviously have not been enough to get police to change their behavior. That's not really much of a surprise, though. After all, it's the taxpayers who pay out the judgments and and settlements in these lawsuits, not the police officers who are actually responsible.

While I have followed a large number of these cases, I have yet to hear of any in which a Massachusetts police officer was fired or criminally charged for violating someone's right to record police. I guarantee that if police start losing their jobs and going to jail over these cases, they will all but stop very quickly.

NEMLEC: Hey, isn't this organized crime?

August 1: NEMLEC searches for a pair of unarmed carjackers in Melrose. Hypothetically a department head in your town government – we’ll say the sanitation department – instructs his or her employees to grab their gear, hop in their city vehicles, and go do work on the taxpayer's dime for a private corporation. This is classic and obvious corruption. What if every town in the region’s sanitation department was also sent to work for the same private corporation run by the very department heads that sent them to do the work? This would not only be massive corruption, it could only be called organized crime.

The North Eastern Massachusetts Law Enforcement Council (NEMLEC) is the organizing group that coordinates police activities by 59 police and sheriff's departments across 58 communities in Massachusetts. NEMLEC even has its own SWAT team and a BearCat armored vehicle. But, despite their large role in policing, NEMLEC claims to be a private corporation.

On June 24, the American Civil Liberties Union of Massachusetts sued NEMLEC for withholding documents after the council claimed they are exempt from Massachusetts Open Records law because they are a private corporation:

NEMLEC operates as a regional law enforcement unit, yet when the ACLU of Massachusetts requested records from NEMLEC, the agency responded that it is a private, non-profit organization, wholly exempt from public records laws.

"NEMLEC can't have it both ways," said ACLU of Massachusetts staff attorney Jessie Rossman. "Either it is a public entity subject to public records laws, or what it is doing is illegal."

"Private individuals can't own automatic weapons, or even get product information about armored vehicles," Rossman said. "NEMLEC operates with all of the privileges of a law enforcement agency, and like a law enforcement agency, it should be accountable to the public."

NEMLEC’s “who we are” webpage states that they are "a non-profit corporation." Their “what we do” page explains that “Each executive officer commits resources from his/her law enforcement agency to assist other members in an effort to increase and improve their individual and collective capabilities, and to provide effective policing services.”

NEMLEC’s “How we operate” page states that “Member police chiefs govern and operate NEMLEC, many of them holding leadership positions on the Executive Board, and/or within Operational Units and Committees, the vehicle through which NEMLEC organizes many of its administrative, technical, financial, and management functions.”

According to their own site, NEMLEC member police department’s police executive officers are pledging public recourses under their jurisdiction to a private company run by either themselves or other police executives. That is no different than the hypothetical sanitation department scenario. In fact NEMLEC, is even worse because instead of just theft and abuse of public resources, NEMLEC is coordinating violent paramilitary operations while masquerading as a policing agency.

NEMLEC in Melrose.On August 1, NEMLEC participated in the lockdown of the City of Melrose where residents were ordered to remain inside their homes because two unarmed carjackers were in the area. The corporation's employees walked through resident’s yards armed with dogs ands rifles to inspect sheds without warrants. These searches did not locate the alleged carjackers.

Wicked Local reported:

A SWAT team from NEMLEC set up outside of Robinson Funeral Home on Main Street, near the pharmacy. Along with local police, the SWAT team spent hours canvassing streets and backyards in the area, also checking sheds and garages that were left open.

The same article goes on to explain that police executives pay tax money directly to the private corporation:

The cost of the NEMLEC support is covered by Melrose’s dues to that agency — $4,000 per year — Chief Lyle said.” If each member police departments and the member Sherriff’s department pay NEMLEC $4,000 each per year then NEMLEC receives $236,000 per year direct from taxpayers.

NEMLEC forgot to tell at least one Lowell police officer that he is being rented out to a private company. NEMLEC’s failure to inform this officer allows him to earnestly believe that he is still a “law enforcement officer” when he helps lock down cities and conduct warrantless searches for NEMLEC instead of knowing he is an armed private contractor.

In July, I made multiple visits to Lowell in my attempt to attend the hearing for Lieutenant Siopes for his involvement in Alyssa Brame’s death in-custody. While in town I spoke with Lowell several police officers and noticed that every marked police car has a NEMLEC logo on it. It seems police department aren't just pledging money, people, and resources to NEMLEC, they are also providing advertising.

The officer I spoke with stressed how important NEMLEC is because of the need to mobilize effectively in the face of major disasters like the Boston Marathon bombing lockdown. The officer acknowledged that NEMLEC has a public perception problem because of their military style tactics and gear, but pointed out that “It is what it is you know? People in uniform trying to do their jobs.” Unfortunately, this means they are wearing their police uniforms while working for a private corporation.

According to the FBI's website:

The FBI defines organized crime as any group having some manner of a formalized structure and whose primary objective is to obtain money through illegal activities. Such groups maintain their position through the use of actual or threatened violence, corrupt public officials, graft, or extortion, and generally have a significant impact on the people in their locales, region, or the country as a whole.

NEMLEC runs violent police activities as a private corporation, using funds and resources handed out by corrupt officials and, as the Lowell police officer who has been deployed by NEMLEC said, “Honestly I think they are awesome – very structured, very structured.” Clearly NEMLEC is a structured enterprise running on public money diverted by influential public officials, and thus NEMLEC meets the exact FBI definition of organized crime.

Existing police departments are already tasked with enforcing the law and the state police are already a large force which can be brought to bear on a large local issue, so I'm unsure what necessary function NEMLEC serves. If NEMLEC does provide a needed service, then it should be a public agency accountable to the public and bound by all the normal regulations that any other law enforcement agency is bound by. What it should never be is a private company.

Note: NEMLEC's website is currently "under construction," so some of the links in this article may not work, however, you can see a fairly recent snapshot of their site at the Internet Archive here. Some of the information on snapshot is out of date, but the quotes I referenced should all be the same.

Tuesday links (7/1/14)

Former Springfield police officer who beat man unconscious asks the Supreme Judicial Court to void his assault conviction because the jury wasn't told about "police privilege." Family in court to determine how much money they are owed from brutality lawsuit against Springfield police officer.

Massachusetts veteran finally gets a doctor's appointment at the Bedford VA hospital -- two years after he died.

Cambridge is scrapping the proposed regulations that would have shut down Uber and rewriting them.

More info about the ACLU's public records lawsuit against Massachusetts SWAT teams.

Fourth Circuit Court of Appeals rules that survivors of the Abu Ghraib prison may sue a military contractor who was involved in torture and abuse in US court.

Why birth control pills shouldn't require a prescription from a doctor.