The Supervisor of Records ripped a giant new hole in the records law by refusing to have the law enforced when the MBTA Transit Police illegally destroyed a video because “there are no other responsive records available.”Read More
This Sunshine Week, we are calling on our readers to contact their state legislators to voice their support for a proposed update to the Massachusetts public records law. Everyone knows the MBTA is underfunded and underperforming, but the solution to their funding issue probably shouldn’t be to bilk Fox 25 to the tune of $15,317.00 to forward a few emails. Fox 25 reported the outrageous fee the MBTA imposed in a report calling for the update of the state’s public record law.
By state law , government emails are public records and anyone has the right to obtain copies of them. Public records must be provided for free or with only a reasonable fee to cover the basic costs associated with preparing the records. The $15,317.00 that the MBTA are demanding almost certainly violates records law.
The most outrageous part of the issue is that there will be no real consequence for the MBTA violating the law to cover up its activities. The Massachusetts public records law is so weak and unenforced that agencies all over the Commonwealth are able to disregard it at a whim with no appreciable repercussions. Breaking the public records law is technically a misdemeanor, but none of the agencies that have oversight over the law have shown a willingness to press charges to demand compliance.
The Secretary of the Commonwealth William Galvin’s office has direct oversight over the public records request appeals process. Galvin’s office so far failed to take any action after Fall River Police Chief Daniel Racine refused to comply with an order from the Supervisor of Records. Racine went to the media to brag about his unlawful non-compliance with the order, but even that public slap in the face wasn’t enough to draw any sort of reaction from Galvin’s office over the past two months. If that wasn’t enough, it's pretty clear that nothing is.
The MBTA and every other governmental agency across the Commonwealth can and will continue to keep the records of their activities away from public scrutiny with no consequences until the public records law is fixed.
An MBTA surveillance video released by the Law Offices of Howard Friedman shows that the MBTA Transit Police Department covered up a beating last May. The video shows MBTA police detective Sean Conway grab Anthony Ferrier from the edge of the Red Line track at Park Street Station after the intoxicated man seemingly tried to jump on the tracks, then throw him to the ground, and beat him. Ferrier suffered multiple facial fractures due to the beating.
After the beating, MBTA Police Chief Paul MacMillan called Conway's behavior “tremendous.” The MBTA released an edited version of the video that did not include the beating. The MBTA also released the following statement under the title "Transit Police detective's quick action saves a life":
On May 7, 2014 at approximately 2:10PM at the MBTA's Park Street station a Transit Police detective happened upon a suicidal male. As the video depicts the male was about to jump into the "pit" area when the quick acting detective was able to grab the male, practically in mid air, and prevent him from harming himself.
Conway claimed at the time that Ferrier thanked him, but Ferrier said that wasn't true. “The complete video shows the truth about what happened; the police officer brutally beat me,” he said in a press release.
David Milton, one of Ferrier's attorneys, told us by email that the MBTA made up the suicide narrative:
[N]ot only did MBTA edit the video at the end, by cutting it off right after Conway pulled him from the edge, but it also edited it before the time when Conway arrived, to make it look like Ferrier was spontaneously jumping and Conway caught him (this fit the MBTA’s suicide narrative, which seems to have been something they made up). In fact, the full video shows Ferrrier standing around for a few minutes, wobbling around. He only lurches over the edge when Conway comes charging at him...
This editing of what occurred on the part the MBTA actually released (as opposed to the aftermath) shows a clear intent to deceive, in my opinion.
In order to get the video released, Milton made a public records request for a copy of the unedited video shortly after the incident occurred. The MBTA denied the request, saying that releasing it would reveal confidential law enforcement techniques as well as the MBTA’s internal deliberations. Milton sued the MBTA, who continued to fight its release, even hiring the law firm Seyfarth Shaw to defend them. The MBTA eventually agreed to release the video.
“Government agencies cannot disclose only records that they believe reflect positively on the agency. The MBTA’s attempt to mislead the public by refusing to provide the complete video shows the need for a strong public records law. Agencies now suffer no penalty when they violate the law. Under our current law we had to file a lawsuit and wait nearly a year to force the agency to provide records that should have been available to the public on request,” Milton said.
Under the Massachusetts public records, plaintiffs in lawsuits related to public records cannot be awarded attorney's fees by a judge even when they are successful. This discourages lawsuits when government agencies wrongfully deny public records. However, a proposed bill to update the public records law could change that, requiring courts to award reasonable attorney's fees to successful litigants.
Howard Friedman, another of Ferrier's attorneys, told The Boston Globe that he will likely pursue an excessive force lawsuit against Conway, and possibly the MBTA as well, over the beating.
The MBTA is standing behind Conway's actions as well as their handling of it. Here is a full statement from MBTA Lieutenant Detective Richard Sullivan:
Although we respect Attorney’s [sic] Friedman right to his opinion we disagree with his assessment of the incident in its totality. Detective Conway’s quick and decisive actions saved a man’s life. After careful review of the incident by our Use of Force Committee it was concluded Detective Conway acted appropriately. Detective Conway documented his actions via a Use of Force report and the implication the Transit Police or the MBTA attempted to mislead or deceive the public is simply incorrect. Based on potential and/or pending litigation on this matter it would be inappropriate for us to comment further.
Take note, Detective Conway is a 13 year veteran of the Department who is held in high regard for his professionalism and work ethic.
We asked Sullivan why the video was edited when it was first released, but he did not provide an answer.
"The MBTA misled the public and clearly intended to do so," Milton told WCVB. "If they truly believe the officer's actions were appropriate beginning to end, they should have released the entire video and let the public decide."
We have filed a public records request for more information about this incident.
Update (same day as original post): We have added more information to this story several times since it was first posted.
During a recent appearance on WGBH's program Boston Public Radio, Boston Police Commissioner William Evans was asked about reports that police at protests in Ferguson, Missouri were using black tape to cover up their names to conceal their identities. Evans agreed with host Margery Eagan that it was unlikely such a thing would ever take place in Boston.Read More
Boston tested new facial recognition technology at a 2013 concert. Dedham police officer accused of using database access to aid kidnapping.
MBTA cops are mad about a plan that would let retired Boston cops work details.
AIDS Project Worcester trains opiate users in life-saving harm reduction strategies.
The Obama administration says the names of people who tortured must be kept secret from the public.
What does brain science say about free will? A local philosophy professor discusses.
A thoughtful take on the Market Basket protests. Some state legislators and police chiefs want police chiefs to have absolute discretion over who is allowed to own and carry guns, but such a law would likely be struck down as unconstitutional if passed.
Boston police will be handing out $250 tickets at this year's pro-marijuana legalization Freedom Rally.
How regulations could benefit businesses at the expense of consumers if they are part of a marijuana legalization bill.
Worcester has paid out $1,751,750 due to police misconduct lawsuits since 2000.
Students accused of sexual assault at Harvard don't get attorneys, the right to cross-examine witnesses, and other due process protections.
Former MBTA official accuses the agency of waste, fraud, and safety problems in a lawsuit.
State Inspector General finds ex-Westfield State University president used tens of thousands of taxpayer dollars for his own personal use and lied about it:
At two rallies in Boston, people showed their support for and protested against the governor's plan to house migrant children in Massachusetts. An MBTA transit police sergeant was put on paid leave after being arrested three times in two days.
A state trooper who is accused of killing a mother and daughter in a drunk driving crash was allowed by a judge to leave the state and travel to Maine for a family vacation, angering the family of the victims.
Cambridge business allows people to try out 3D printers and laser cutting tools.
What are the chances of there being a second Probation Department scandal trial?
A report by Human Rights Watch and the ACLU finds that journalists and lawyers are being harassed and intimidated by government surveillance efforts.
Glenn Greenwald and The Intercept have revealed the identities of several prominent American Muslim leaders who have been targeted by the NSA:
Read The Intercept's entire article about the NSA spying here.
Lowell man's eight arson-related murder counts tossed after he spent 31 years in prison due to prosecution's reliance on junk science and an involuntary confession.
MBTA police officer disciplined over racist Facebook post. Maybe he should have saved his comment for the Boston police union's newsletter.
Massachusetts Supreme Judicial Court rules that the smell of unburnt marijuana is not enough for police to justify searching a vehicle.
ABC News tells viewers that scenes of destruction in Gaza are in Israel, even describing a Palestinian family as "an Israeli family trying to salvage what they can."
A week before the 2014 Boston Marathon, Kevin “Kayvon” Edson was arrested by Boston police and charged with disturbing the peace, disorderly conduct, disturbing a public assembly, possession or use of a hoax device, and making a false bomb threat. Edson ran near the finish line of the Boston Marathon during the one year remembrance of the bombing while oddly dressed, wearing a backpack with a rice cooker in it, and shouting “Boston Strong.” The Boston Herald quoted a police report about the incident:
“A person wearing no sneakers was approaching the finish line ... and was yelling and screaming, causing many people to notice his actions.” The officers ran toward Edson, “safely approached and stopped the suspect,” and asked what was in his backpack. “The suspect, as he was taking the backpack off his shoulders, stated ‘A rice cooker,’” the report says.
Cops cleared the area and removed Edson’s veil and hat, to find he had a blue streak of makeup running from his left eye to his chin, and a yellow streak on the right. He told cops the backpack — later detonated by a bomb squad — contained the “non explosive rice cooker, a robot mask, two (2) cigarette lighters, two thousand (2,000) business cards, his cellphone and wallet,” the report says.
“It’s symbolism, c’mon,” he told cops, according to the report. “The performance got the best of me.”
The Boston Marathon bombing is a touchy subject and this incident struck a chord with the public. The articles and television news covered the tastelessness of Edson’s actions, but for the most part they have failed to analyze the power grab being made by the Boston Police.
ABC was still spreading incorrect and inflammatory information five days afterwards. Edson did not leave a bag anywhere as a hoax and the second bag belonged to an employee of the TV station NECN, yet according to ABC:
[Boston Police Department Superintendent Bill] Evans’ men got a trial run last week when an alleged hoaxer dropped two bags near the finish line of the marathon, in a similar manner to how the real explosives were planted last year. Authorities reacted quickly and destroyed the ultimately harmless objects.
“It was a nice drill,” Evans said. “It just got us on our toes a little earlier… But I think we did a super job. We did what we were trained to do.”
What exactly is it that Evans’ men are being trained to do?
Consider the facts of this arrest: a man was behaving oddly in a public area (where he had a right to be) while carrying items which are not illegal, yet he was intercepted and arrested. Never once in any document released so far has Edson been quoted as uttering a threat.
The Boston police have made a mighty power grab here, claiming and exercising the ability to arrest a citizen for free expression that they don’t like. If shouting while wearing a backpack is illegal, then most protests I’ve attended are also now illegal. If backpacks near the finish line are illegal, then why wasn’t the NECN employee who left a second bag unattended similarly arrested and charged?
Mayor Marty Walsh's comments in The Herald criticized the handling of the incident, saying that the Boston police should have initiated their assault on the First and Fourth Amendments more quickly.
“It’s an open, public place, Boylston Street. People can come and go and walk down as they please. I don’t know all the circumstances around it, but it definitely wasn’t a security breach,” Walsh said. “But clearly if he walked two blocks ... he should not have been allowed to walk two blocks.”
Not only do I think Edson's arrest was wrongful, but I also think a double standard is at play here.
The MBTA’s “dynamic duo” were stationed in a caged in entrance of the closed Arlington T stop about two blocks from the 2014 Boston Marathon’s finish line. Their post was where runners were ushered out to meet their families and supporters.
— MBTA Transit Police (@MBTATransitPD) April 21, 2014
When one member of the "dynamic duo" saw me recording her, she told me she was in a cage “because I killed the last person who took a picture of me.” The officer was, of course, making a tasteless joke and not seriously threatening to murder me.
Nevertheless, I was surprised to hear a police officer standing near the finish line of the marathon joking about murdering reporters so soon after Edson’s arrest. The officer made her comment to me while in the presence of other police officers, including one who was standing in the small cage directly next to her, none of whom said anything to her or took any action.
I'm against criminalizing freedom of expression, but I decided it was worth broadcasting this officer's comments to show a double standard. How is an armed police officer joking about murder near the finish line of the Boston Marathon any different from Edson's "performance?"
Edson is due back in court tomorrow. I hope that the court firmly rebukes this power grab by the Boston police.
The signage at the "Transit Watch" checkpoint claims that all persons will be stopped and searched and that declining a search will result in an order to leave the station. If you fail to comply with the order, the police will arrest you and charge you with trespassing. A trespassing conviction could result in a $100 fine and up to 30 days in jail. It is unclear how the trespassing law would apply given that the area is public property and that it is not a crime to exercise your Fourth Amendment rights.
I recorded two videos of the checkpoint and made a warning sign so that unsuspecting travelers would not be caught off guard by the police. The signage the police set up was not viewable until an you arrived at the checkpoint.
Two transit officers threatened to arbitrarily misapply a law when they told me that I couldn't block the entrance to the Chinatown stop. My video clearly shows that I was standing on the public sidewalk next to the entrance and not blocking it. The arbitrariness of the threat was highlighted by the fact that the officers actually walked around a man standing directly in the middle of the entrance to deliver the threat. The officers did not make a similar warning to the man.
The threat was also hypocritical considering that the officers were stopping people who attempted to enter the subway, which is the exactly what they threatened to punish me for supposedly doing. The hypocrisy deepened when I was later threatened with “loitering” charges by a group of transit police who were standing around in the station.
The loitering threat was issued after a transit officer invited me down to the checkpoint to have a conversation. The officer claimed I was going to “look dumb” when I asked if the officers had warrants to search bags.
These “Transit Watch” checkpoints are the similar to TSA checkpoints run in the Boston subways last year. The TSA checkpoints were challenged by local activists under the banner of Defend the 4th. Defend the 4th’s Garret Kirkland was with me at the MBTA checkpoint and he announced that he will organize fresh protests over the MBTA checkpoints.
On April 2, I called the MBTA to find out how many of these inspections the MBTA has conducted since the “Transit Watch” program was started, how many of these inspections have resulted in arrests or citations being issued, and how many of these arrests were for terrorism-related charges or explosives-related charges.
After being transferred to several different people who said they couldn't comment, I was finally told to ask my questions by email. The MBTA has not yet responded to my email.
Correction (same day as original post:) This article originally said a trespassing charge could result in a $120 fine. It was been corrected to say a trespassing charge could result in a $100 fine and up to 30 days in jail.