On December 6, 2013, BSE reporter Maya was pulled over on 495 South for a victimless driving infraction by a belligerent state trooper who threatened to steal her camera when he saw that she was video-recording him.
Maya was stopped just before 1:30 AM, when it was pitch black out. The situation made Maya feel vulnerable – she was a young woman isolated on a dark stretch of highway and was being stopped by an armed stranger whose intentions she did not know.[ref]According to the Cato Institute's Police Misconduct Reporting Project, sexual misconduct – including violent sexual crimes like rape and sexual assault – is one of the most common types of misconduct that police officers are accused of. Police officers are often able to use their perceived authority to isolate their victims and then use their guns or the threat of arrest to coerce them.
Earlier this year, a Lowell police officer was convicted of extortion after he confessed to using his badge to elicit sexual favors from prostitutes. Also this year, state police investigated an allegation that a state trooper had sexually assaulted a woman behind a store on Route 24 in Avon while on duty. The trooper committed suicide before any criminal charges were brought against him.
Another concern is that a significant percentage of police shootings take place during traffic stops. Typically when police shoot at a driver, they say the driver attempted to use their vehicle as a weapon. In one shooting that took place this year, a state trooper opened fire during a traffic stop in Medford, injuring both the driver and passenger.[/ref]
Out of concern for her safety, Maya used her camera to document the traffic stop so that she would have an objective record of what happened.
Although many police departments across the country have video cameras mounted in their patrol vehicles, the Massachusetts State Police are not among them. In response to a public records request we made earlier this year, the state police said that they do not have cameras installed in any department vehicles.
When no one records a police stop, it produces an inevitable "he said, she said" dispute and police departments will rarely take the word of an average person over that of one of their police officers. For instance, the Telegram & Gazette learned earlier this year that a state trooper who is currently facing criminal charges after allegedly exposing himself to a teenage relative had seven prior complaints, but never faced any disciplinary action as a result. Five of the seven complaints similarly alleged that the trooper acted aggressively during traffic stops, suggesting a pattern of abusive behavior, but none of the seven complaints was sustained.
When the police officer who stopped Maya approached her vehicle, he said he had pulled her over for an out-of-date inspection sticker.
“You saw my inspection sticker from behind me somehow?” Maya asked incredulously.
“We have this thing called a computer. We run the plates and it tells us everything about the vehicle and the owner,” the police officer said.
The officer noticed that Maya was recording him and told her to turn the camera off. “It's illegal to audio or visually record me without my permission,” he said.
When Maya refused, the officer threatened to steal her camera. “I will ask you one last time, then I will take that from you,” he said.
The officer did not end up stealing the camera, but when Maya pointed it at him a second time, he told her she was violating “the wiretap law” and began yelling at her to point it in a different direction.
The officer was wrong about the law. 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. That ruling stemmed from an incident in which a man was arrested for recording Boston police officers making an arrest with his cell phone.
Maya asked the officer what his name was, but he refused to provide it verbally. He said the name was on the citation, but the writing was illegible. The officer also never told Maya what police department he worked for, however, the letters “TPR” were written on the citation before his name, leading us to conclude that he was probably a state trooper. The officer did write his badge number (3282) on the citation in a legible manner.
Visiting the state police HQ
In order to find out whether or not the officer who stopped Maya was a state police officer and to inquire about state police policy, Maya and Andrew, another journalist with The Bay State Examiner, traveled to the Massachusetts State Police Headquarters in Framingham, bringing cameras to document what happened.
When we first arrived, we were briefly barred from entering the building by a desk clerk who did not want our cameras in the building. We were soon greeted by Lieutenant Detective William M. Pinkes, who allowed us to enter the building and courteously provided us with some assistance.
Pinkes was able to confirm that Maya had been stopped by a state trooper and was able to use the badge number on the citation to determine that the trooper was Kenneth Harold of the Leominster state police barracks.
Pinkes confirmed for us that state police officers are required by department policy to identify themselves by their name and badge number upon request.
Pinkes also told us his own understanding of the Massachusetts wiretapping law. Like the trooper who pulled Maya over, he falsely stated that the law makes it illegal to audio record others without their consent, although he also said that police can't force people to stop recording them in a public area. He also said state police receive training on the state wiretapping law.
“We try to give them the training relative to the most recent case law that exists,” Pinkes told us.
Pinkes also accepted a records request from us asking for policy documents describing how state troopers should deal with members of the public who record them, policy documents describing the Massachusetts wiretapping law, and policy documents describing when state police must identify themselves to the public.
On December 22, we received a response to the records request from Glenn M. Rooney, Staff Counsel for the state police.
“As to your request for policies, procedures, and and/or related materials on the topic of video/audio recording by the public, please note that the Department does not currently have a policy regarding this issue. Instead, the Department is bound by the relevant case law and statutes and Department policy cannot supersede the same,” wrote Rooney in his response letter.
The fact that both the trooper who pulled Maya over and Lt. Det. Pinkes misunderstood the law combined with the fact that the state police have no written documents on the subject undermines Pinkes's claim that state police officers receive training on the current case law.
With no written policy or training documents, it's impossible to say for certain how much training state police officers receive on this issue, but whatever training they do receive does not appear to be adequate.
We were also provided with a copy of the state police's official policy on identification. The policy states that state police must “furnish their name, current duty status, and identification number to any person requesting that information when they are on-duty or while they are acting in an official capacity.”
As previously stated, the state trooper who stopped Maya refused to provide his name, a clear violation of this policy.
According to The Boston Herald, Kenneth Harold's job paid him $128,680.31 in 2012.
Traffic stop may have involved controversial license plate reading technology
The state trooper who pulled Maya over claimed that he had a computer that tells him “everything about the vehicle and the owner.” He may have been referring to an automatic license plate reader (ALPR), a surveillance technology being adopted by police across the country that has come under criticism as invasive and damaging to privacy.
According to The Boston Globe, “More than 60 law enforcement agencies across Massachusetts use automated license plate recognition technology, including every police department in the Boston area. The scanners use high-speed cameras to compare plates against police databases, including vehicles associated with outstanding warrants, lapsed registration, expired insurance, or unpaid parking tickets.”
“The readers also record the date, time, and GPS location of each vehicle, even in heavy traffic. The technology thus offers a wealth of information for surveillance as well as investigations: with enough scans over time, police can trace a particular vehicle’s path and discern driving habits.”
A report published earlier this year by the American Civil Liberties Union warns that the use of license plate scanners by police is largely unregulated, allowing police to save information about drivers permanently and track their movements even if they are not suspected of committing crimes.
The Massachusetts State Police have refused to provide any information to the public about how many license plate scanners they use, what they use them for, and how long they store the data.
Earlier this month, the Boston Police Department indefinitely halted its use of license plate readers after they inadvertently released the plate numbers and GPS data for more than 68,000 vehicles that had been scanned by the readers to The Boston Globe in response to a public records request.
The ACLU of Massachusetts has called for a statewide moratorium on the use of license plate readers until more regulations and oversight are put into place. The group is advocating for a law called The License Plate Privacy Act that would require police to delete ALPR data after 48 hours unless they obtain a court order to preserve it.
Correction (Dec. 24, 2013): When we wrote this article, we said that the trooper who pulled Maya over was using an automatic license plate reader, however, we were never able to confirm whether he was using an ALPR or had simply run her plate manually because the trooper would not give her an answer. We've corrected the article to say that he may have been using an ALPR.