SJC case could overturn Massachusetts stun gun ban

A Taser brand stun gun. (Credit: WikiMedia Commons) Under Massachusetts state law, it's illegal to possess stun guns (except for police, of course), but a Supreme Judicial Court case could change that. According to The Boston Globe:

Jaime Caetano did what she could to protect herself after the father of her two children beat her so badly that she “ended up in the hospital,” but the abuse did not stop.

Then, after she displayed a stun gun when he showed up at her workplace in New Bedford, he “got scared and left [Caetano] alone,” court papers say.

The same stun gun, however, landed Caetano in the middle of a legal battle about the weapon and the right to keep and bear arms under the Second Amendment. She was convicted last year under a state law criminalizing the possession of stun guns by private citizens.

Caetano is challenging the law in court, saying it violates her rights under the Second Amendment to defend herself.

In an almost unbelievably sleazy move, the Middlesex District Attorney's Office is trying to use the fact that Caetano is homeless as a reason for denying her the right to carry weapons:

In a twist, the state Supreme Judicial Court is asking whether and how Second Amendment protections for people to defend themselves in their own homes apply to homeless people such as Caetano. She became homeless after leaving the hospital, spending time in a hotel and a shelter, court papers say...

Middlesex County prosecutors, who brought the case against Caetano, argue the Second Amendment does not establish the constitutional right to have a banned electric stun gun outside the home. They argue two Supreme Court decisions that upheld the right to possess handguns for self-defense inside homes does not necessarily extend that protection outside the home...

“Only a ruling from this Court reversing itself or a decision from the United States Supreme Court specifically holding that the Second Amendment protects possession of an electric stun gun or like weapon outside the home would be sufficient to vindicate the defendant’s challenge to her conviction,” Middlesex Assistant District Attorney Michael A. Kaneb said.

He wrote that being homeless does not entitle Caetano to “special protection” under the Second Amendment.

Middlesex District Attorney Marian Ryan (Credit: DA's Office)The argument that homeless people have less of a right to possess weapons is perverse considering many women experience homelessness when leaving abusive relationships, but it's exceptionally offensive coming from the Middlesex District Attorney's Office which was embroiled in a huge scandal last year after dropping the ball in the Jared Remy case.

After Jared Remy was arrested for attacking his girlfriend Jennifer Martel, the district attorney's office made no attempt to have him held in jail pending the trial despite his long history of domestic violence. Two days later, Remy murdered Martel.

After her office's performance in the Remy case, one would think District Attorney Marian Ryan would have learned from her failure and began using her position to support victims of domestic violence when they stand up for themselves. Instead, Ryan's office is trying to make sure women are unable to defend themselves and go to jail if they try.

The Supreme Judicial Court will be hearing arguments for the case tomorrow. I'm definitely hoping that they decide to throw the stun gun ban out.

If the courts don't throw the ban out, it will probably stand for a long time. Massachusetts has some of the most restrictive laws about weapons possession in the country and the state legislature isn't likely to change that anytime soon. Until very recently, it was illegal to buy pepper spray without first obtaining a permit from the police, and that positive change was attached to a gun law that makes it easier for police to deny gun permits to people for potentially arbitrary reasons.

Middlesex DA's handling of public records in Jared Remy case was misleading

Last year, the Middlesex District Attorney's Office became the focus of a scandal after the murder of Jennifer Martel by Jared Remy. Remy had been arrested for attacking Martel just two days before the murder, but the district attorney's office made no attempt to have him held in jail pending the trial despite his long history of domestic violence. Middlesex District Attorney Marian RyanMiddlesex District Attorney Marian Ryan initially said the DA's office would conduct an internal review of its policies for handling domestic violence cases, but later ordered an outside investigation after pressure from the Massachusetts Bar Association and others. Ryan released the findings from the investigation in May, after Remy pled guilty to murder.

Last Friday, The Boston Globe reported that the 16 pages that were previously released were actually incomplete. After receiving a tip, they made a public records request for the entire report. As it turns out, the document Ryan released in May was missing 19 pages, which included summaries of interviews with her staff and contained some new information about the case.

According to the Globe:

Ryan’s office also withheld the report’s table of contents, making it impossible for the public to know that portions of the review were excluded. Late Thursday afternoon, Ryan’s office released the missing pages to the Globe following a public records request for the document.

Ryan said that when she released the findings in May, she was under no obligation to provide the employee statements and other information that was excluded.

When I elect to release something that I haven’t been compelled to release, it’s fully in my discretion to release what I’m going to release,” Ryan said in a telephone interview Thursday night.

She said she withheld the summary of interviews with employees, who are identified in the report only by title, because she had told them to speak openly to the lawyers conducting the review.

“I asked members of my staff to speak freely, to speak candidly, to have no fears of any repercussions about anything they said,” she said, adding that she did not want to violate their trust.

The state’s open records law makes it clear that a government agency that withholds parts of a requested public document must state what was withheld and why, said Robert Bertsche, chair of the media law group at Prince Lobel Tye in Boston.

That transparency is crucial so that the public has the opportunity to challenge an agency’s decision to withhold information, he said.

“The public records law is not supposed to be a game of cat and mouse,” Bertsche said. “When [public agencies] withhold a document and don’t tell you, that’s really a failure of the system, and that’s when we stop trusting government.”

Fox 25 reporter Sharman Sacchetti interviewed Ryan about the Globe story.

“If you're telling the public that you're releasing the report, but you're really not releasing the whole report, doesn't that undermine public confidence?” asked Sacchetti.

Ryan defended herself, noting that she only said she was releasing the "findings" of the report (which is indeed the word she used in her press release at the time), but this answer seems disingenuous. When you release a document to the public without explaining that it's incomplete, you're giving the impression that you're releasing the whole thing.

Ryan has argued that she didn't violate the state's public records law as the Globe suggests in their article because the information she released in May was disclosed voluntarily and not in response to any particular public records request. She's probably right that her actions in this case don't technically violate the law, but it's clear that she violated the law's spirit by acting in a very misleading way.

Ryan's actions were especially misleading in this case because the Waltham News Tribune had already made a public records request for the entire report prior to Jared Remy's guilty plea. Ryan refused to release the report at the time in order to prevent it from prejudicing Remy's right to a fair trial. On appeal, the state Supervisor of Records sided with Ryan, but said the report could be released after the case was closed.

Had Ryan simply said in May that she had only released part of the report, it's likely that the Globe and other news organizations would have made records requests for the whole thing much sooner.

Of course, considering that this report is a public record and is tied to a case of tremendous public interest, Ryan should have just done the transparent thing and released the entire report without waiting to receive public records requests for it in the first place.

Ryan, who was appointed by the governor after her predecessor resigned, is up for her first election this year. Michael Sullivan, who is running against her and, said on Facebook that her decision not to release the whole report was "deliberate and arrogant." Perhaps if Ryan hopes to keep her job, she should embrace transparency for her own sake.

District attorney fails to adequately investigate Lowell police in-custody death

brame
There is a long list of public servants who showed a callous indifference to Alyssa Brame and now it's time to prominently add Middlesex District Attorney Marian Ryan's name. 31-year-old Alyssa Brame was arrested by Lowell police late on January 12, 2013 after allegedly offering police sex for money. She became unconscious while in police custody and was placed in a cell and left unattended for 66 minutes, leading to her death early on January 13.

Brame's death was documented on the Lowell Police Station's surveillance cameras and supposedly investigated by the Massachusetts State Police (MSP) detectives assigned to DA Ryan's office. Last year, Ryan cleared all the police employees involved in the death of any criminal wrongdoing.

DA Ryan's official report was shown to be even more critically flawed than previously known by an internal review released by the Lowell Police Department in January.

The seriousness of Brame's death should have prompted a careful, thorough investigation by Ryan's office, yet somehow Ryan's official report doesn't even get the names of the Lowell police employees correct. In Ryan's report, only a third of the full names of the Lowell police employees were correct. The report does not mention the first name and badly misspells the last name of the lieutenant who was in charge the night Brame was arrested, booked, and left to die. Of the officers that the Lowell police report had findings against (Siopes, Kilmartin, Fay, Nobrega, Giuffrida, Tetreault, Florence, and Lombard) Ryan's report manages to give a correctly spelled full name for only three, while misspelling three names as well.

LPD Job Title Ryan’s report Lowell Police report Error in Ryan report
Officer Charles Pappaconstantinou Charles Pappaconstantiniou Missing second "i" in last name
Officer Robert Dyer Robert Dyer None
Officer Gil Rojas Guillermo Rojas Nickname
Officer Jason Gato Jason Gatto Missing second "t" in last name
Officer William Florence William Florence None
Detention attendant Kevin Lombard Kevin Lombard None
Sergeant Frank Nobrega Nobrega Nickname (other records show first name is "Francis), no first name in LPD report
Lieutenant-in-charge Cioppes Siopes No first name in either report (other records show first name is "Thomas"), misspelled last name
Sergeant Fay James Fay No first name
Lieutenant Michael Kilmartin Kilmartin None, but no first name in LPD report
Lieutenant Michael Giufredda Giuffrida Misspelled last name, no first name in LPD report
Detention attendant Shawn Tetrault Shawn Tetreault Missing second "e" in last name
Officer Lou Gonzalez Julio Gonzalez Nickname
Captain Meehan Meehan No first name in either report (other records indicate name is "Thomas")

Given that Ryan and the MSP didn't eve take the time to get the names right, what else did they fail to investigate?

The Lowell police report on Alyssa’s death contains much more in depth information than the Ryan report. It exposes the depth of knowledge that Lowell police employees had while making the decisions that cost Brame her life was far greater than DA Ryan's report indicated. The Lowell report several times comments on and correct errors in the Ryan and MSP report.

Ryan's report claims that various Lowell police employees thought Brame might be sleeping or was snoring and that they were not aware of how severe her medical condition was. However, a damning detail revealed in the new report is that just minutes after Brame arrived at the Lowell Police Headquarters, a Lowell police employee announced that Brame was at the station and was passed out over the radio. Brame was unconscious and everyone knew.

The “legal analysis” section in DA Ryan's report only explored an involuntary manslaughter charge against the entire Lowell Police Department -- and offers no explanation as why Ryan didn’t consider any other charges for either the department or the officers themselves. Ryan opted not to bring charges because she claims that the investigation found “no one person acted in a wanton or reckless manner in connection with Ms. Brame. Therefore, by analogy, under Commonwealth V Life Care Centers of America, Inc., 456 Mass. 826, 833-834 (2010) there can be no culpability for involuntary manslaughter in the absence of "at least one individual whose behavior could permissibly be found to have been wanton and reckless."

The court opinion on the case that Ryan cited is about whether a corporation is criminally liable based on collective knowledge and conduct of multiple employees, as explained on Mass.gov. In her use of this argument Ryan says that there were several instances of negligent conduct by various individuals, but that it is not clear that “but for” each of those negligent acts the death from alcohol toxicity would have occurred. Ryan's report fails to consider that all of the actions taken were done so were done by employees directly under Lieutenant Thomas Siopes's supervision and with his knowledge. The case law she cites is invalid if even one person made a wanton and reckless decision.

“The SJC held that pursuant to established law, a corporation acts with a given mental state in a criminal context only if at least one employee who acts (or fails to act) possesses the requisite mental state at the time of the act (or failure to act),” according to Mass.gov.

There are a number of individuals who Ryan fails to charge and offers no explanation as to why.

According to her own report, detention attendant Kevin Lombard asked Sergeant James Fay if they were going to call an ambulance for Brame not long after she had lost consciousness. Fay was standing in the stairwell with Brame and had full knowledge that she had passed out and was extremely intoxicated when he decided to tell Kevin Lombard that they would not seek medical attention. Ryan's report also details Fay helping haul Brame down to the booking area and being the highest ranking LPD employee present when Brame was placed in the cell and left to die. Ryan gives no explanation as to why she doesn't consider these decisions to be reckless or wanton.

The Lowell police report reveals that Lieutenant-in-charge Thomas Siopes, whose job was to oversee the booking, played a much larger role in Brame's death than Ryan’s report indicates. In Ryan's report, Lt. "Cioppes" (who we assume is Siopes) only appears briefly in the stairwell while Brame is losing consciousness and questions if the allegations against her could be true.

According to the Lowell police report, Siopes did not seek any treatment for the woman in his custody that he witnessed lose consciousness despite his responsibility to do so. His inexcusable decision was to have Brame brought down to booking instead.

The other major missing bit of information from Ryan's report is that Lt. Siopes then stopped by Brame's cell where she lay unconscious and dying.

Siopes was aware, present, and in charge at each major junction of Brames detention and his decisions cost Brame her life. Siopes also left the police station early without being relieved.

Lowell police say there's video of Lt. Siopes being present with Brame while she passed out and of Siopes coming to Brame’s cell -- video that Ryan claims was reviewed as part of the investigation. Why were these facts omitted from Ryan's report?

Were Lt. Siopes's decisions reckless and or wanton? Well, when asked by the Lowell Police Board of Inquiry if he would have called for an ambulance in light of Brame's death and with all the information that he has now, he said he said "no." Siopes actually said that he would let Brame die again if given a second chance. Ryan's assertion that there was no criminal mindset is debunked.

Now, with the new evidence revealed, will there be justice? No. Ryan has already issued letters of incidental immunity protecting the Lowell police officers involved from any prosecution tied to the incident.

Lowell police were able to assemble their information either because they did an actual investigation or because Ryan had already granted the officers immunity, so they felt comfortable discussing the death. Either case is troubling. Either DA Ryan's investigation was half-hearted and or incompetent or DA Ryan issued immunity to Lowell police employees prematurely or with full knowledge that their actions were far worse than her report claimed.

One issue that both reports agree on was that the detention attendants lacked adequate training. Ryan's report suggests that Lowell police train their employees better and makes no mention of the fact that this lack of training was systemic throughout the department. The Lowell police report shows that records were not kept properly and training was not done.

The only officers who had findings against them are the officers who actively participated in Brame's death, but lack of required training has been cited in both reports to be one of the major reasons for Brame's death. Why aren’t the superior officers and everyone within the Lowell Police Department who were supposed to provide and document this training facing penalties?

There was other criminality the Lowell police report brought to light.

Ryan's report highlights that the Lowell police felt a pushback from local hospitals and this was part of the decision not to send Brame to the hospital. Lowell police investigators got to the bottom of this claim -- it was Sergeant Francis Nobrega. Nobrega purposely misled the MSP investigation by lying and providing a misleading excerpt of an email. There was no pushback from the hospitals. Nobrega has not been charged for his disruption of DA Ryan's investigation.

Lowell police also note that Lt. Siopes misled the MSP investigation as well. Lt. Siopes told MSP that "She [Brame] was always like this" whens he had been arrested in the past. Lowell police investigators determined that this was untrue using video evidence from previous arrests. Ryan has not brought charges against Siopes for disrupting the investigation either.

Right now departing Lowell City manager Bernard F. Lynch is deciding if Siopes, Kilmartin, Fay, Nobrega, Giuffrida, Tetreault, Florence, and Lombard should face suspension or if they should be fired.

  • Lynch's contact information: Office Hours M-F, 8 AM - 5 PM Location 375 Merrimack Street 2nd Floor, Room 43 Lowell, MA 01852 978-674-4000 (P) 978-970-4007 (F)

  • District Attorney Ryan's office can be reached at: Office of the Middlesex District Attorney 15 Commonwealth Avenue Woburn, MA 01801 Main Phone: (781) 897-8300 Main Fax: (781) 897-8301 MA Toll Free: (877) 897-8333

  • District Attorney Ryan's boss, Attorney General Martha Coakley, is running for governor: One Ashburton Place Boston, MA 02108-1518 Phone: (617) 727-2200

  • Lowell Police Department: Office Hours M-F, 8 AM - 5 PM Location 50 Arcand Drive Lowell, MA 01852 978-937-3200 (P) 978-970-0455 (F)

You can watch the portion of the Brame booking video that has been made available to the public on YouTube: