Boston Criminal Attorney Blog

On February 6 2010, I posted a story about the arrest of a man on the Boston Common, after he had taken video of Boston police allegedly engaging in unnecessary use of force in arresting a man.

Simon Glick was walking along Tremont Street in Boston on October 1 2007, when he observed three uniformed Boston police officers using considerable force in arresting another man. Glick, now a practicing criminal defense attorney, was a law student at the time and suspected police brutality. His suspicions were reinforced upon hearing another observer shout “You are hurting him, stop!” at the officers. Glick video recorded the event with his cell phone. When the officers saw this they arrested him - for violating, they alleged, the Massachusetts wiretap law – Mass. Gen. Laws Ch. 272, § 99. The "wiretapping statute" criminalizes the "interception of wire and oral communications" and defines "interception" as the secret recording of the contents of a communication, without the permission of all parties to the communication (emphasis added.)

Massachusetts is known as a so-called “two-party consent” state, meaning both parties to a phone conversation or an otherwise private meeting must be informed of, and consent to, audio recording of the conversation, in order for that recording to be legally permissible. It was (and is) designed to prevent someone from secretly audio taping a phone conversation, or secretly audio taping a meeting being held. To almost no surprise among Massachusetts criminal defense lawyers, the criminal prosecution against Glick was later dismissed, particularly due to the fact that there was no "secret" recording of this event.

To his credit, Glick sued the Boston Police Department for violating his civil rights. The Boston Police argued that judgment should be entered in their favor, based upon the “doctrine of qualified immunity”, which essentially provides limited immunity to police officers in certain exigent, or emergency, situations. Last week, in Glick vs. Cunniffe, et. al., the U.S. Court of Appeals for the 1st Circuit ruled against the city. As a Boston Massachusetts police brutality lawyer, I could have told the city of Boston that it was wasting its time and money with this appeal. In fact, I predicted this legal outcome in my February 6 2010 post on this story. Quoting from the decision, the court’s three-judge panel wrote “We conclude that …Glick was exercising his clearly established First Amendment rights in filming the officers in a public space, that his … Fourth Amendment rights were violated by his arrest without probable cause. We (further) conclude that Glick’s recording was not ‘secret’ within the meaning of the Massachusetts wiretap statute, and therefore the officers lacked probable cause to arrest him.”

I don’t report on subjects like this to gratuitously criticize police departments or police officers. The vast majority of police officers that I know are decent, honest people, who mean to do the best job they can. But in almost any line of work, there are always those who abuse their positions of authority. And when that happens, the reputations of the majority of honorable police officers are lessened. That doesn’t do anyone any good – not the overall police department involved, not the wider police force affected, and certainly not the public they are paid to protect and serve. As a Dedham, Massachusetts criminal defense lawyer, I think a decision like this is actually good for police departments everywhere – because it reminds them of two things: 1) They are there to protect and serve the public – not abuse their legal rights and 2) Unethical police conduct will be punished by the courts. This is as it should be in any profession, across the board.

This will almost certainly result in the City of Boston having to pay out some serious money to Glick in damages. For the city, an unfortunate example of how this kind of conduct can bring serious financial consequences.

On Oct. 17 2010, police officers in the town of Mount Pleasant, New York, shot and killed Easton resident Danroy “DJ” Henry, age 20, outside a bar at a shopping center in that town, not far from New York City. Henry was at the bar with friends, after attending a football game between Pace University (where he attended college,) and Stonehill College. Police alleged that officers shot Henry after he struck police officers with his car. Other witnesses disputed this account, saying that Henry was only moving his car at the request of police, when they suddenly jumped on the hood of the car and shot him through the windshield. Immediately Henry’s death, his family disputed the police Department version of events, and called for an immediate investigation.

The mother of one of Henry's friends who was in the car and who was also shot and wounded in the incident, disputed the police account in an interview with CNN shortly after the shooting. Donna Parks said that Henry and others in the car were waiting for a friend to come out of the establishment "when a police officer banged ... on the window." In response, she said that Henry began driving after her son, Brandon Cox, told Henry that he thought police wanted him to move his car. "Another police officer with his gun drawn just ran out in front of DJ's car," as he was moving it, said Parks, who insisted that Henry had no time to stop. Parks has also told CNN that after police shot Henry multiple times, they "pulled him out of the car, handcuffed him, put him face down on the ground and left him there for 15 to 20 minutes."

Amidst calls for an investigation, shortly after Henry’s death, the Westchester, New York District Attorney’s Office commenced a grand jury inquiry of the incident. Yesterday, that office announced that, “after due deliberation on the evidence presented in this matter, the grand jury found that there was no reasonable cause to vote an indictment.’’

What is a grand jury and what does this mean? A grand jury is intended to be part of our government’s system of checks and balances, designed to protect against abuses of governmental power. A grand jury is comprised of typically 16-23 persons, who hear evidence presented by the government in its attempt to seek an indictment of a person (or corporation.) An indictment is a formal charge that someone has committed a felony-level offense. The system is supposed to require a prosecutor to first convince the grand jury, (in theory an impartial panel of ordinary citizens,) that there exists reasonable suspicion, or probable cause, that a crime – usually a felony - has been committed. Witnesses can be required to appear and testify before a grand jury, which may sit for several weeks at a time. Unlike a trial, the grand jury's proceedings are secret; neither the subject of the grand jury proceedings, nor his attorney, is generally present for witness testimony. In what surprises most people, a judge is usually not present either. After hearing the prosecutor’s evidence, the grand jury returns either a "true bill" (meaning that a prosecution will go forward), or "no true bill" (meaning the case is dismissed.) Typically, 12 members of the grand jury must vote to indict, for the case to proceed to formal charges and a trial.

A lot of people view this grand jury’s findings very confusing, to put it mildly. Not the least of these parties is the U.S. Department of Justice, who immediately following the grand jury’s report, announced that they were launching their own, independent inquiry into this killing. The purpose of the investigation will be to determine if police officers committed any violations of Henry’s federal civil rights. Additionally, U.S Senator Scott Brown has called for a complete investigation of this shooting death.

The reason for all this apparent doubt: Why would someone who was not committing a crime, who was not hiding any contraband, and who had no reason to attack police, deliberately try to ram them with his car? Henry did not have a violent history. It strikes several observers that this District Attorney might have been presenting an intentionally weak case to the grand jury, to “cover” for members of the Police Department involved here. Why this theory? District Attorneys’ offices and Police Departments are professional partners; they are essentially co-workers. They interface with each other and cooperate with each other, to prosecute crimes. To ask a District Attorney to objectively and impartially present evidence to a grand jury in a case like this, strikes some observers as the fox guarding he chicken coop. To quote the young victim’s father, Danroy Henry, Sr., “This process is most analogous to a person committing a crime which their siblings investigate and for which their closest relatives determine their punishment.’’ The family’s New York civil rights lawyer, Michael Sussman, has openly questioned the impartiality of the District Attorney, who works closely with local police, stating that the grand jury process is heavily weighted toward the prosecution and alleging that if prosecutors were truly seeking indictments in this case, those indictments would have been returned. In making his point, Sussman quoted a famous 1985 New York appellate court judge’s comments on the grand jury process: “A District Attorney can indict a ham sandwich.”

While I’m not prepared to say that a cover-up is going on here between the Mount Pleasant, New York Police Department and the Westchester County District Attorney’s Office, as Dedham Massachusetts criminal defense lawyer, I believe strongly that a more independent party should have investigated this case. That is simple common sense. By doing otherwise, police and prosecutors in this case have created the appearance of bias and partiality. They brought this suspicion onto themselves, and they should not have. I work with police and prosecutors every day. The vast majority of them are honest, ethical professionals. What was done with this investigation does not reflect well on that majority. Complete transparency is needed here.

A funny thing happened on the way to the Common in 2007.

It seems that one Simon Glik, 33, was walking along Tremont Street next to the Boston Common on October 1 2007, when he observed three (yes, three) uniformed Boston police officers arresting another man, and using considerable force. Glick, a law student at the time and now (perhaps no surprise,) a criminal defense attorney, heard another man shouting “You are hurting him, stop!” at the officers. Thinking that he was witnessing three police officers brutalize the man who was being arrested, Glick used his cell phone to video record the event. When these officers saw Glick recording them on video, they arrested him. For what? For violating, they alleged, the Massachusetts wiretap law – Mass. Gen. Laws Ch. 272, § 99. The "wiretapping statute" criminalizes the "interception of wire and oral communications" and defines "interception" as the secret recording of the contents of a communication, without the permission of all parties to the communication. The staute provides that persons violating the law may be punished by a fine of up to $10,000, or imprisoned for up to five years, or both. Massachusetts is among the minority of states that prohibit recording a conversation without the permission of all parties involved. In this area of law, Massachusetts is known as a so-called “two-party consent” state, meaning both parties to a phone conversation or otherwise private meeting must be informed of, and consent to, audio recording of the conversation, in order for that recording to be legal. It was (and is) designed to prevent someone from secretly audio taping a phone conversation, or secretly audio taping a meeting being held.

Not surprisingly, the case was later dismissed, particularly due to the fact that there was no "secret" recording of this event. Notwithstanding, it seems obvious (at least to me, as a Boston criminal defense lawyer,) what these officers were trying to cover up: The fact that they were using excessive force in arresting the first man, which Glick (and at least one other observer – the man who yelled out “Stop, you are hurting him!”) had witnessed. As a Massachusetts criminal defense attorney who has defended cases from assault and battery to drug offenses and sexual offenses, I can only imagine the reaction of the Assistant DA in the Suffolk County District Attorney's office who ended up being the recipient of this case (“These cops expect me to prosecute for this? It’ll be thrown out in a second.”) As I said, this statute was intended exclusively to prevent hidden, covert audio recordings of phone conversations or otherwise private meetings – not video recording of public events. Without doubt, these officers saw themselves getting caught in the act of police brutality, and then made things even worse by arresting Glick on this essentially baselss charge.

But the story isn’t over. Now, the American Civil Liberties Union of Massachusetts has filed a civil rights lawsuit against the city of Boston and these three officers for violating Glick’s First Amendment rights to free speech and his Fourth Amendment right to be free from arrest without probable cause. I thoroughly agree with both of these allegations. From all apparent indications, this case is a flagrant example of abusive police conduct, not only against the first man being arrested, but against Glick, also. Howard Friedman, an attorney working with the ACLU to represent Glick, commented, “Just because these police officers were unhappy about being recorded, doesn’t allow them to make an arrest. If a person is standing, as Mr. Glick was, many feet away and simply recording, that’s not a crime.”

A spokesman for the Boston Police Department declined to comment. Mayor Thomas M. Menino’s office also had no comment. No surprises there. I said I could easily imagine the reaction of the Assistant district Attorney who had the unfortunate luck to be handed this case, and I can also easily imagine the reaction of the corporation counsel for the city of Boston, upon hearing of this case: “We’d better settle this one.” In the interests of fair reporting and equal time, let’s take a look at the police union’s response. Thomas J. Nee, president of the Boston Police Patrolmen’s Association, said: “There is no problem with photographing or videotaping, but when it comes to conversations, police officers need a warrant or permission, and, as police officers, we are entitled to the same rights as every citizen of the Commonwealth to be free from surreptitious recording of our voices. It’s a protected activity.’’

Sorry, Mr. Nee – no, openly (vs, secretly) video taping public events isn’t “protected activity”. You need to speak with your lawyer, again. This statute applies only to voices recorded without the consent of the other party, over a phone or otherwise during a private meeting. It does not apply to public places or public events, and the legislative intent behind this law is clear. While there have been cases producing some convictions in tis area of law, they don't quite match the fact pattern in this case - particularly the non-secret nature of the video recording involved here.

It’s unfortunate when something like this happens, because it undermines public confidence in the good work that most police officers do. Even though, as a Norfolk County criminal defense attorney, I work from the opposite side of the aisle with police and prosecutors, I know that the vast majority of police officers are hard-working, ethical people. Bad apples, such as appears to be the case with these officers in this case, give good police a bad name.