The weather in Boston during this year's Independence Day was beautiful, but the atmosphere was marred by the an overbearing law enforcement presence and police state checkpoints. The police establishment in Boston has previously claimed the power to search backpacks at checkpoints set up on on public streets during certain events without probable cause. Now they are claiming the power to simply ban backpacks from public places even though there is no law that allows them to do so.Read More
Earlier this month, we made the news after the Massachusetts State Police won an award for government secrecy in part because of how they responded to one of our records requests, but people who saw that news didn't get the full story. On June 6, Investigators Reporters & Editors, Inc. (IRE) gave the State Police its third annual “Golden Padlock Award,” naming them the most secretive government agency in the United States.
According to IRE:
The Massachusetts State Police habitually go to extraordinary lengths to thwart public records requests, protect law enforcement officers and public officials who violate the law and block efforts to scrutinize how the department performs its duties. It normally takes months or longer to respond to news media FOI requests. Requests for basic documents routinely produce refusals, large portions of blacked out documents or demands for tens of thousands of dollars in unjustified fees.
IRE cited the State Police's absurd response to one of our records requests as one of the reasons for the award.
After we asked the State Police for the internal affairs records of 49 state troopers last year, State Police attorney Jaclyn Zawada told us that simply providing us with a fee estimate for the records was too burdensome. Zawada said that the State Police would not provide us with a fee estimate unless we first paid a $710.50 “non-refundable research fee” so they could research how much the fee would be.
The State Police's attempt at charging a “research fee” to produce a fee estimate was mentioned by IRE, but there's much more to the story.
We filed an administrative appeal with the Supervisor of Records, who later told the State Police they could not charge a “research fee” and ordered them to provide a fee estimate within 10 days.
Instead of complying with the order, Zawada waited 21 days before finally providing a fee estimate. She said the State Police would charge $9,236.50 for digital copies of the records or $15,876 for paper copies.
Zawada initially claimed that it would take 24 and a half hours to do the research necessary to provide a fee estimate, but the letter she sent indicated that she only spent a few seconds doing a simple multiplication problem to arrive at the estimated fee.
Instead of basing the estimate on the actual number of pages and the actual amount of time necessary to prepare the records, Zawada simply took a fee estimate for the internal affairs records for one of the state troopers and multiplied it by 49.
We have again made an appealed to the Supervisor of Records for a number of reasons.
First, we believe government agencies have an obligation to make fee estimates as accurate as possible and should not use shortcuts that may significantly inflate the estimate.
When Zawada initially demanded that we pay a “research fee,” she claimed that “[d]rafting a good faith estimate... would require first a considerable amount of coordination with the IA section and many hours of research,” however, she did not actually do any of this work to prepare the fee estimate. When she finally sent the fee estimate, she noted that the State Police have the ability to provide a more accurate estimate, but would not do so.
Zawada seemed to blame the State Police's own hard-to-use records keeping system for her refusal to provide a more accurate estimate. “To generate a more precise estimate, the Department would conduct a computer search of IA Pro [a piece of software used for tracking information about state troopers] for a member’s history, identify each responsive file number, locate each file, and pull each file from the file room in order to determine the actual number of responsive files and approximate number of responsive pages,” she explained.
The State Police do not appear to be acting in good faith. By first telling us they would need to do hours of work to generate a fee estimate, then telling us they didn't actually need to do the work after all, they simply seem to be trying to stonewall our records request for as long as possible.
In a follow-up, Zawada defended herself by saying she isn't obligated to provide accurate fee estimates. She also claimed that when she attempted to charge us a “research fee,” it was really just a “courtesy” to help us “generate a more precise estimate.”
Secondly, the state trooper whose file Zawada used to generate the fee estimate was Walter Baptiste. According to a document we obtained from the State Police, Baptiste received the most complaints of any state trooper during the four year period between October 2010 to September 2014.
In her follow-up, Zawada noted that complaints only make up part of a state trooper's internal affairs file, but it still seems likely that a state trooper with an above average number of complaints is likely to have a larger than average internal affairs file.
We identified several other issues with the fee estimate, all of which we have raised with the Supervisor of Records. We hope that when the matter is finally resolved, the supervisor will order the State Police to provide a lower fee estimate that more accurately represents the actual cost of providing the records.
The Massachusetts Secretary of the Commonwealth's office ruled yesterday that the Massachusetts State Police cannot charge a separate "research fee" to produce a fee estimate for a public records request. The ruling came in response to an appeal from The Bay State Examiner. After we requested copies of the internal affairs files for 49 state troopers, Jaclyn Zawada, an attorney with the State Police, said that producing a fee estimate for the public records request was so burdensome that they would need to be paid a "non-refundable research fee" of $710.50 first.
Zawada said it would take the State Police approximately 24 and a half hours to determine what the fee for the records should be. She said if it takes longer, the State Police might charge an even higher "research fee."
Zawada said the State Police might not impose the "research fee" if we "narrow[ed]" the request "significantly," which we declined to do.Read More
In an unusual move, the Massachusetts State Police have asked The Bay State Examiner to pay a fee before they will tell us what another fee is, a decision which we are fighting. After we requested copies of the internal affairs files for 49 state troopers, Jaclyn Zawada, an attorney with the State Police, said that producing a fee estimate for the public records request as required by law was so burdensome that they would need to be paid a "non-refundable research fee" of $710.50 first.
Zawada said it would take the State Police approximately 24 and a half hours to determine what the fee for the records should be. She said if it takes longer, the State Police may charge even more money for the "research fee."
Zawada said the State Police might not impose the "research fee" if we "narrow" the request "significantly," which we declined to do.Read More
The Massachusetts State Police are keeping a close watch on the growing controversy around the nationwide use of surveillance equipment that vacuums up the cell phone activity of suspects and innocent bystanders. The devices work by tricking cell phones into connecting to them by spoofing a cell tower before relaying cell phone activity to the nearest real cell tower, which some call a “man-in-the-middle attack.”
Cell site simulators, commonly known as “Stingrays” (manufactured by Harris Corporation) or “IMSI catchers” in reference to their ability to scoop up the International Mobile Subscriber Identity of all cell phones within range of the device, have become controversial due to their apparently routine deployment by law enforcement without obtaining probable-cause warrants and the nature of the equipment which necessarily collects private information from everyone within its broad range – including location data, IMSI information, and data pertaining to phone calls and texts – despite the fact that they are not even suspected of committing a crime.Read More
The Boston Globe did a big story on the high rate of drunk driving incidents among police officers. There is some research that suggests that police officers may be even more likely to drive drunk than members of the general public. But there is little question that police officers who drive drunk are far less likely to face any criminal consequences or impact to their employment if they are charged, and may very often completely avoid being charged at all.
Cop privilege and “professional courtesy”
There is a disturbingly routine practice of cops looking the other way when a cop pulls over another cop for drunk driving. The Globe reports that is common practice for that officer to be offered a ride home instead of investigated or arrested, and for the stop to never be officially reported.
There is no question that no one but a fellow cop is ever getting a ride home instead of a ride to jail if he is suspected of an OUI. And the truth is, we have no idea how often this happens, since it is kept off the books.
A Massachusetts Civil Service Commission report says that “Every police officer who testified before the Commission testified that the routine and customary practice when a stop is made on a fellow police officer, is to show professional courtesy and not call in the stop”.
How aggressively are cop DUI arrests investigated?
When an officer actually is arrested and charged, you have to wonder how aggressively the police will even investigate the case.
In an OUI prosecution, the primary evidence against an accused drunk driver is the arresting officer’s witness testimony - as documented in the police report, and in testimony at trial.
I’ve read thousands of OUI police reports, and they nearly always have the same standard descriptive elements: the defendant was unsteady on his feet, he had glassy and bloodshot eyes, and his speech was slurred.
But if a cop is forced to arrest another cop, it would be easy enough for him to soft-pedal the facts in the report, and try not to hurt the defendant on the stand if it goes to trial.
If the police officer as prosecution witness isn’t doing his job as he would with any other drunk driving arrest, it will be much more likely to come back as a not guilty. Cops are going to have each others' backs, right or wrong.
Penalties and job impact are minimal
Another huge advantage that police have if they are actually arrested, charged, or convicted of an OUI is that their unions and the civil service board give them protections afforded to very few other employees.
When a cop gets a six month license suspension for refusing to take a breath test, they almost always find a way to give him desk duty for that time. Few small businesses would be willing or able to shuffle job responsibilities like that to accommodate an employee.
The Globe also noted the high rate of breath test refusals in drunk driving arrests among police officers. “You can’t expect that John Q. Private Citizen is going to give up his or her constitutional rights [against self incrimination] just because they happen to be a police officer,” says Colonel Timothy Alben, the head of the State Police.
That is absolutely true. The Massachusetts Supreme Judicial Court has explicitly stated that a breath test refusal should not and cannot be used against you in court. Unfortunately, few other employers give that kind of consideration to people facing license loss via administrative penalties for refusal imposed by the Registry.
The power of police unions and civil service protections
There is really no management vs. labor divide in the police ranks. The bosses making the decisions about these infractions are part of the brotherhood, and always look to protect their own.
What other worker gets a chance to be reassigned, or given paid leave while a criminal charge is adjudicated?
One could argue that the unions are simply too powerful. But I would make the case that the average worker in this country actually has far too few protections, and the law and administrative policies of the RMV are unfair, particularly in first offense cases, since only a minority of people ever have a problem again.
It is far too easy for the average person to lose their job due to license suspension before they ever get a chance to defend themselves in court. A Constitutionally protected breath test refusal is no protection against losing your job. Unless you are a police officer.
We must find a way to make police more accountable, and end “professional courtesy.” That practice should be investigated and penalized.
But we should also broaden job protection for license suspensions, and facilitate full access to Constitutional protections for all citizens accused of a DUI, or any crime.
Russell Matson is a drunk driving and criminal defense lawyer in Braintree, MA. His web site is http://www.madrunkdrivingdefense.com
Local journalist Todd Wallack, who recently authored a Boston Globe investigation about how Massachusetts police try to shield their colleagues from accountability for drunk driving, said yesterday that the Massachusetts State Police refused to turn over photographs of state troopers who have been arrested for drunk driving in response to a public records request. The State Police apparently claimed that doing so "would create a risk to public safety."
— Todd Wallack (@TWallack) December 17, 2014
As Wallack pointed out, this is an absurd claim to make because the State Police routinely publish pictures of state troopers online. Indeed, the State Police publish photos on their blog, their Facebook page, and their Twitter account.
For instance, here's a recent picture of state troopers with Santa that I got from the State Police's Facebook page:
Does the world suddenly feel like a less safe place to you? I didn't think so.
The public safety exemption to the public records law reads as follows:
(n) records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety.
The exemption lists a number of specific types of records, none of which include photographs of employees, however, it says it's "not limited to" these types of records. That said, it's impossible to see how State Police can reconcile their willingness to share pictures of state troopers posing with Santa with their unwillingness to share pictures of state troopers who have been arrested for alleged crimes.
This strikes me as a blatant case of police abusing a vague exemption to the public records law to shield their colleagues from public scrutiny. If anything, releasing these photos will enhance public safety by helping to remind the public that there are legal consequences for drunk driving, even for police officers.
Wallack said he intends to fight the State Police's decision by filing an administrative appeal with the Supervisor of Records.
Another killer with a badge walks free and we can’t breathe.
Shortly before being suffocated to death by New York City police, Eric Garner declared “It stops today,” but it hasn’t. Across the country, the justice system has failed to hold police accountable, so on December 4, thousands of peaceful demonstrators gathered in Boston for the city's largest protest in recent memory.
The #EnoughIsEnough protest was sparked by a grand jury’s refusal to indict Officer Daniel Pantaleo, who was caught on video choking Eric Garner to death, but protesters hoped to put that case in the context of a wider system of unaccountable police violence that disproportionately affects black Americans.
The size of the protest and the tactic of splitting up and regrouping all over the city made it impossible to document everything that happened during the protest, so this video is only meant to shows some of the highlights of what we saw.
The protest was primarily peaceful, but there were a few shoving matches between police and protesters at different points during the night. A small number of arrests took place, a few of which we witnessed. There was also an incident where a Massachusetts state trooper pepper sprayed a man for no apparent reason, which is not featured in this video.
You can read more about the protest here.
The massive anti-police brutality protest that took place in Boston last Thursday was largely peaceful, but not completely. Kin Moy, a Cambridge resident who attended the protest, has released a video showing a state trooper attacking him with pepper spray multiple times for no apparent reason.
According to The Boston Herald:
Kin Moy, 24, told the Herald that he and some friends joined hundreds of others Thursday who were protesting the killings of unarmed black men by police in Ferguson, Mo., and Staten Island, N.Y. Around 9:30 p.m., they made their way onto the Interstate 93 on-ramp near South Station, he said.
“We saw a bunch of officers start dog-piling this guy who was not resisting arrest and it seemed to me to be a little rough,” Moy said. “I wanted to film all of it just in case, and as I was backing up and complying with his demands but still trying to film everything, he sprayed me.”
The Massachusetts State Police policy on the use of force states that troopers may only use force to "Effect an arrest; Restrain or subdue an individual resisting a lawful seizure; or Protect themselves or others from physical harm." The policy states that pepper spray "shall not be used on passive resisters who offer NO physical resistance" (emphasis in original).
Since Moy was not under arrest, was not being detained, and was not fighting with the police or anyone else in any way, this incident is a clear and obvious violation of the policy.
According to WCVB, the State Police have already started an investigation of the incident:
Massachusetts State Police have begun an internal investigation into the incident, according to state police spokesman David Procopio.
"We have begun an internal investigation into the action seen in the video to determine whether it constitutes a violation of departmental policy," Procopio said in a statement. "The department's investigation will be thorough and unbiased."
On Moy's YouTube channel, a member of the State Police left a comment encouraging him to contact the State Police. Yesterday, Moy wrote on his channel: "I'm getting legal advice before I talk to the police. I've spoken briefly with a lawyer and he said to give his team a few days to review the video before making the next move."
The name of the trooper who pepper sprayed Moy has not yet been released by the State Police.
Update (12/9/14): Yesterday, the American Civil Liberties Union of Massachusetts published this press release related to the incident:
The ACLU of Massachusetts is in touch with Kin Moy concerning reports that he was pepper sprayed by a Massachusetts State Police trooper during a protest about the killings of Michael Brown in Ferguson, Mo., and Eric Garner in Staten Island, N.Y. The First Amendment protects the right to record police officers performing their duties, and the ACLU is deeply concerned whenever this right is threatened or violated.
The ACLU of Massachusetts, together with the National Lawyers Guild Massachusetts Chapter, has also undertaken other efforts to protect the rights of demonstrators. Our staff and supporters have trained demonstrators on their rights, attended several of the recent protests, and assisted people who have been arrested during theses peaceful demonstrations.
We will continue to work for the rights of protestors responding to recent instances of police brutality and racial bias in policing. "I'm proud to represent peaceful protestors exercising their free speech rights," said ACLU of Massachusetts attorney Carl Williams. "The solidarity of the protestors—supporting each other during demonstrations, at the police station and in the courtroom—is incredibly important and heartwarming."
Just a couple days after President Barack Obama announced a proposal to help police across the country fund body cameras, Colonel Timothy Alben of the State Police was quoted in The Boston Globe as saying he is considering adopting them:
“I think overall it’s a good thing,” said Colonel Timothy P. Alben, superintendent of the Massachusetts State Police. “I’m just concerned about all the collateral issues that go with it.”
Alben said he is considering a pilot program with either body cameras or dashboard cameras for about six troopers. The State Police field-tested dash cameras about 10 or 15 years ago, he said, but the volume of video footage — stored in those days on DVDs — was overwhelming, and there were concerns about the legality of recording citizens.
These days, he said, data is easier to store, but still voluminous, and fielding public and media requests for the footage would be a massive undertaking.
The department probably would have to negotiate with the unions to introduce the cameras, Alben said, and cameras are expensive. Still, he said, he believes that eventually, cameras are coming.
“I think that most people today walk around with a smartphone in their pocket or on their belt or in their bag. They’ve all got recording capability wherever they go,” said Alben. “I think the idea of technology expanding into this area — there’s a certain inevitability to that.”
This is a complete reversal for Alben, who told WBZ just a few weeks ago that the “competing few dollars out there for equipment and training” made it unlikely the State Police would adopt the technology.
When I recently asked David Procopio, the head of the State Police Media Relations department, about body cameras and dashboard cameras, I got a similar answer:
We do not have any plans to do so at this time [i.e., implement body cameras]. In the past cameras have proven to be cost-prohibitive. As with many public agencies, allocation of limited resources demands that we prioritize how we spend our funding, and we have determined that the best service to the greatest number of public citizens is to allocate funds to protect people from violent crime; from reckless and dangerous motorists; from drug trafficking, gun trafficking and human trafficking; from child abduction and abuse; from organized crime; from elder abuse; and from terrorist threats and cyber threats, and to hold accountable the criminals who commit such crimes.
I think it is inevitable that many departments will consider the use of body cameras in the next decade or so, and I am sure that the pros and cons of body cameras will the subject of discussion within the State Police in coming years. Does that mean I think they eventually will be adopted by MSP? It does not; I do not know the answer to that. What it means is that I think every large police department is going to have to discuss the options available in light of current technology and determine whether those options fit their mission and their funding. There will still be a cost factor involved, and the department’s priorities for resource allocation are not going to waver from those I described above – investigation and prevention of violent crime, crimes against children, motor vehicle crimes, drug, gun and human trafficking, gang activity and organized crime, etc.
In a larger sense, the Massachusetts State Police have a strong record of investigating our own members when they have been accused of misconduct or criminal behavior. That willingness to do so is what is most important, more important, even, than technology.
This reversal is great news, in my opinion. Considering it's possible for state troopers to receive repeated complaints about their behavior during traffic stops, but never have any of the complaints sustained, I think it's a great idea to Create objective video evidence of state police interactions with the public.