Thompson was charged with violating the Massachusetts wiretapping law which prohibits secretly audio-recording conversations. He was also charged with resisting arrest.
Thompson said he began recording Officer Thomas Barboza because he saw the officer, who was supposed to be working at a detail, talking on the phone loudly and swearing profusely on the street outside his apartment. He said his arm was fully extended when he was shooting the video, making it obvious what he was doing. He also said that Barboza called him a "fucking welfare bum" when he approached him.
In his arrest report, Barboza offered a different account, claiming that Thompson "had a cell phone,as [sic] if just resting, holding it close to his body infront [sic] of his middle chest area."
The report still makes it clear that Barboza saw Thompson's phone and that Thompson said that he was recording twice. Despite this, Barboza wrote in his report that Thompson had been secretly recording him.
In the report, Barboza describes a violent arrest in which he "knocked the phone from [Thompson's] hand and pushed him onto the porch floor." Barboza said that he resorted to violence because Thompson resisted being handcuffed by "pulling his hands apart."
The Fall River police have said that two days after Thompson was arrested, his phone was somehow reset while in their custody, deleting all its contents. The police have accused Thompson of resetting the phone remotely using a cloud service. Fall River Police Chief Daniel Racine told WPRI that a warrant was issued to Apple to find out if this allegation is true.
Thompson has denied resetting the video, saying it was most likely a police officer who did it. He said he wanted the video to be made public and has no reason to have deleted it. He also said that the phone had no service at the time it was reset, so he couldn't have remotely accessed it.
Judge postpones considering motion to dismiss
Last Monday, Thompson's attorney Daniel Igo filed a motion to dismiss in an attempt to get Judge Joseph Macey, the judge who is hearing the case, to throw out the charges.
According to the Igo's motion, "the allegations contained in the Fall River police report do not describe a secret recording but are more properly viewed as an exercise in free speech."
Igo cited the case Commonwealth v. Hyde, in which the Supreme Judicial Court ruled that a recording could not be considered secret if the recording device was "held... in plain sight."
Igo compared Thompson's arrest to the recent case Glik v. Cunniffe, in which a federal appeals court ruled that a Massachusetts man could move forward with a lawsuit against three Boston police officers who arrested him for recording them with a cell phone.
Igo said the facts of Thompson's case were "strikingly similar" to those in Glik:
It is alleged that Thompson like Glik used his cell phone to tape officer's actions while the officer was on duty. Both cases occurred while the officers were in public. In both cases, the police acknowledged the cell phone's presence. In both cases, the officers were told that they were being recorded.
Igo also wrote the resisting arrest charge should be dismissed because Thompson was not accused of violently resisting and because the arrest was not made in "good faith."
Assistant District Attorney Robert Kidd, who is prosecuting Thompson, said during Thursday's court hearing that he wanted more time to review the motion.
Macey refused to dismiss the charges immediately, agreeing to give Kidd more time. He scheduled another pretrial hearing for April 11.
Thompson remains optimistic
Despite the setback during Thursday's court hearing, Thompson remains optimistic.
"I'm gonna beat 'em. I've already won. They just don't know it yet," he said.
History suggests that he will beat the charges. According to The Herald News, at least five other people have been charged with wiretapping for recording police in Greater Fall River since 2008. Of the four cases that have been resolved so far, three were dismissed. The only person to have been convicted took a plea bargain.
In addition to winning his criminal case, Thompson said he is pursuing several avenues to hold the Fall River police accountable for what happened.
Thompson has already filed a complaint against Barboza. The Fall River police chief sustained the complaint and punished Barboza, although Thompson was unhappy with the punishment. Barboza was given with a one day suspension and prohibited from detail work for 15 days for talking on the phone and using inappropriate language.
"They slapped him on the hand," Thompson said. "That's a slap not only to myself, that's a slap in the face to everybody. A five-year-old kid would get more severe punishment."
Thompson said that once he beats the charges against him, he plans to make sure the police department holds whoever is responsible for deleting his video accountable.
"I'd like to see the dirty Fall River cop that erased my video – cop or cops – somebody is gonna get fired in Fall River," he said. "If something as minute as that video of a police officer goofing off can be tampered with and destroyed, what other evidence has been tampered with or destroyed while sitting in the Fall River police station?"
It remains to be seen if the police will get to the bottom of who reset the phone, but Police Chief Daniel Racine told WPRI that he would take action against whoever was responsible."If a Fall River police officer erased that video, he's fired and I would suspect the district attorney would take out charges. If any other individual did that, we will take out felony charges," he said.
Thompson said that more people should exercise their rights and try to hold police accountable for misconduct.
"Too many people's rights get violated and people sit back and say 'Look, it's only me. I can't do anything about it,'" he said. "With the internet and the technology going on now, you can be one person and you can shake people up."
Note: The video of Thompson's court hearing was provided to us by Tim White of WPRI. Court rules only allow one video camera to record court proceedings at a time, however, the video must be shared with any other news media present. Tim White got the video back to us very quickly and we are very appreciative.