Nov 16 2013

Student charged with wiretapping for recording Boston police

Dr. Q

It’s been more than a year since the City of Boston paid out over $200,000 in settlements to people who were falsely arrested and charged with felony wiretapping for video-recording cops, but Boston police still haven’t learned their lesson.

The wiretapping law makes it illegal to secretly record conversations, however, Boston police have arrested a number of people over the years for openly recording and charged them with wiretapping.

Last year, the taxpayers of Boston were forced to pay $170,000 to Simon Glik and $33,000 to Maury Paulino. Both men were arrested — Glik in 2007 and Paulino in 2009 — by Boston police officers for openly video-recording cops making arrests in public.

Last month, Boston police again used the wiretapping law as their excuse for arresting someone who was recording them. This time the victim was a Northeastern student who used his cellphone to record the police during the celebration after the Red Sox won the World Series. Zolan Kanno-Youngs of The Huntington News, a Northeastern student paper, reported the following information about the case:

I was able to catch up with the student charged with wire-tapping, Tyler Welsh, to hear what he did in the confrontation to deserve that charge. He said he and the officer got into an argument after Welsh questioned why he couldn’t go past the barricades the police had set up to contain students near Fenway Park.

“It was like the situation was getting to the point where I thought he wasn’t doing the right thing,” Welsh said. “He was lacking that professionalism and I thought, ‘I’m going to catch this on camera so at least I can go back and have it and be able to see if what he said was okay, was it not okay or was what I was doing okay?”

Welsh described the confrontation with the officer in an all too familiar way for anyone who ever been in the same situation. He described feeling nervous, afraid and losing control of the entire situation. So he put his phone in front of his chest and began to record a video.

It wasn’t the first time the student felt the need to do so.

Two weekends ago, Welsh was outside a party Boston Police shut down in Mission Hill. He encountered five police officers surrounding and pushing one second-year business student, Michael Kerr, and once again felt the need to document the incident.

“I exited the building after asking a cop inside if I could retrieve my jacket, who replied by grabbing me by my collar and yelling at me to leave immediately,” Kerr said. “I asked another officer outside the same, at which point I was surrounded by 5 of them pushing me and calling me a ‘tough guy’ and to ‘stop with all the questions.’”

An October 31 press release from the Suffolk County District Attorney’s Office confirms that Welsh was arrested for recording the police:

A dozen people arrested in Boston after last night’s World Series win appeared in a Boston courtroom today, with 10 of them being arraigned today on charges related to their alleged conduct, Suffolk County District Attorney Daniel F. Conley said.

Of the 12 people arrested by Boston, State, and MBTA Transit police, Roxbury District Court Judge Tracy-Lee Lyons dismissed one case for lack of probable cause and continued a second man’s case for arraignment at a later date. Those two men were a 23-year-old Allston man arrested by Transit Police for trespassing into the tunnel leading from the Blandford Street MBTA stop toward Kenmore Square and a 20-year-old Northeastern University student who allegedly refused to follow Boston Police officers’ orders to leave the area of Kenmore Square and recorded the confrontation on his cell phone. (emphasis added)

Aug 6 2013

Cop Block founder sues Greenfield police over 2010 arrest

Dr. Q

Ademo Freeman (legal name Adam Mueller), the founder of Cop Block, has filed a lawsuit against the Greenfield Police Department over his 2010 arrest for recording at a jail in Greenfield.

In a complaint (.pdf format) filed with the United States District Court of Massachusetts on July 1, Ademo’s attorneys Elaine Sharp and Cornelius Sullivan detail the facts of the case, most of which have been public knowledge for some time now.

On July 1, 2010, Ademo and Pete Eyre drove from New Hampshire to the Franklin County House of Corrections in Greenfield where they attempted to bail a friend out of jail. Ademo and Pete, who have worked together on documentary projects such the Motorhome Diaries and Liberty on Tour, brought their videos cameras with them to document the encounter at the jail.

Ademo and Pete were initially told by employees in the jail lobby that they could not record. They refused to shut their cameras off and were eventually able to speak to a supervisor who gave them permission to continue recording.

They did not have their driver’s licenses or sufficient money to post bail, so they left the jail to get money out of an ATM and retrieve their licenses from their RV which was parked a few miles away.

When they returned to the jail, they were again told that they could not record. A police officer, Sergeant Todd M. Dodge, entered the jail and told them that they would have to shut their cameras off or leave. They asked to speak to Dodge outside the jail.

Outside the jail, Ademo and Pete were eventually arrested by Dodge and two jail employees. They were both charged with wiretapping, trespassing, and resisting arrest. Pete also faced additional charges.

After they were arrested, the police illegally searched their RV. The police demanded that Ademo and Pete turn over the keys to the RV and threatened to break a window in order to gain entry if the keys were not provided to them. After the RV was searched, it was towed to an impound lot.

Ademo and Pete had their pants taken away from them and were forced to sleep in freezing cells without blankets or toilet paper. They were not given the opportunity to make phone calls or bail themselves out of jail. They were released from jail and arraigned the following day.

They were eventually given a joint trial at which they defended themselves pro se. They were acquitted by a jury.

The lawsuit also mentions an incident during which Ademo was issued a jaywalking citation by Greenfield police while passing out flyers to raise awareness about his situation. According to the lawsuit, the citation was issued in retaliation for Ademo exercising his first amendment rights.

The lawsuit names Todd M. Dodge and other unspecified Greenfield police officers as defendants. The lawsuit also names the town of Greenfield as a defendant for failing to properly train its police force and hold them accountable for misconduct.

The suit seeks unspecified damages and attorneys’ fees.

According to Open Media Boston, the defendants had not yet filed an answer to the complaint as of August 2, which means that no hearings have been scheduled yet.

Pete made the decision to not be involved with the lawsuit. “My rationale is that I don’t want to grant legitimacy to institutions founded on coercion,” he told me.

This was not the first or the last time the Greenfield police used a spurious “wiretapping” charge to punish people for recording their actions. In 2007, Greenfield police charged Emily Peyton with wiretapping after she recorded the arrest of an antiwar protester. The charges were later dropped. In 2011, Ademo and Pete’s friend Beau Davis was charged with wiretapping a Greenfield police officer for reasons that were unknown to him, but the charges were later dropped by the prosecutor.

Jun 20 2013

Proposed wiretapping bill would grant police broad snooping powers

Dr. Q

Martha Coakley

Martha Coakley

While a recent survey shows that many Bay Staters do not support the NSA’s massive surveillance programs, Attorney General Martha Coakley has proposed a bill that would amend the state’s wiretapping statute to allow police in Massachusetts to conduct surveillance using basically the same methods as the NSA.

Alex Marthews of Digital Forth writes that the bill — which is called the “An Act Updating The Wire Interception Law” — would do the following:

1) Remove the requirement that an electronic wiretapping warrant be connected with organized crime, or indeed with serious crimes more generally. Potentially, even minor crimes like marijuana possession could become eligible for wiretapping by state authorities.

2) Double the length of an authorized wiretap, from 15 to 30 days.

3) Legalize mass interception of communications at telecommunications switching stations, rather than through individual wiretaps on individual phone numbers.

According to Brad Puffer, a spokesman for Coakley, Marthews’ summary of the bill “includes inaccuracies that are highly misleading about the changes our office has proposed.”

Puffer insists that the bill “does not legalize mass interception of telecommunication switching stations. Each wiretap must be applied for and authorized individually by a Superior Court judge.”

Furthermore, according to Puffer, “Marijuana possession is not eligible for a wiretap. Only serious designated felonies in the statute would be covered. According to federal law, only crimes with a minimum one year prison sentence are eligible for a wiretap.”

Marthews shows that both of these claims are false.

With respect to the mass interception of communications at telecommunications switching stations, Marthews observes the following:

Undoubtedly, each wiretap must be applied for and authorized individually. However, the bill seems to envision interception of communications on a mass basis, at phone company switching stations. An appropriate analogy here is with the recently disclosed FISC order to Verizon to disclose metadata on all calls to the NSA. It was one wiretap, “applied for and authorized” by a federal judge, but it covered every Verizon user’s calls.

Why does the bill contain language specifically revising the definition of a “wire communication” eligible for a wiretap order to include a “connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities”, if not to allow specifically this kind of interception? To say, Oh, it’s not mass interception because there would only be one wiretap order, in the light of recent revelations, is deeply misleading. We’d like to see a guarantee that a single wiretap order would not be used to collect data relating to multiple people’s communications passing through a switching station.

With respect to claims that the bill would allow police to wiretap people suspected of marijuana possession, Marthews quotes a reader who points out the following:

As I read the bill, it does make possession of marijuana eligible for a wiretap. Section 4 expands the definition of “designated offenses” to “any violation of chapter 94C”. It does not require that they even be a crime. So as long as marijuana possession violates 94C, even as a technical violation, wiretapping is allowed. Federal restrictions on wiretaps are irrelevant because marijuana possession is still a felony under federal law.

So, does marijuana possession violate 94C? Yes. Even under the decriminalization statute, section 32L of 94C, possessing an ounce or less of marijuana is a civil offense. Thus, still a violation of 94C. And possession larger amounts is still a criminal violation of 94C.

Furthermore, as Marthews points out, “it’s common for prosecutors to attempt to charge marijuana possession as possession with intent to distribute, which is a charge that would be covered even if what Mr. Puffer says is true.”

The bill is scheduled to have a hearing before the Judiciary Committee of the Massachusetts legislature on July 9.

Digital Fourth, the ACLU of Massachusetts, Demand Progress, Fight for the Future, the Bill of Rights Defense Committee and the Electronic Frontier Foundation have launched a petition to oppose the bill which can be signed here.

What stands out most about this is that even as the government in Massachusetts seeks to expand its surveillance powers, it’s still possible in this state to be prosecuted — under the same wiretapping statute that Coakley is trying to expand — for recording one’s interactions with the police. The recent ruling in Glik v. Cunniffe confirmed that people have the right to openly record the police, but secretly recording the police is still considered unlawful.

In the case Commonwealth v. Hyde, a musician’s felony wiretapping conviction was upheld by the Massachusetts Supreme Judicial Court after he recorded police during a traffic stop with a hidden tape recorder and brought the tape to police headquarters to file a complaint.

“The problem here could have been avoided if, at the outset of the traffic stop, [Hyde] had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight,” wrote the court. “Had he done so, his recording would not have been secret, and so would not have violated” the wiretapping statute.

Justice Margaret Marshall was not convinced by the majority’s logic. In her dissent, she expressed concern that the court’s ruling would “allow police officers to conceal possible misconduct behind a cloak of privacy.”

During the past few years, there have been at least three cases quite similar to Hyde which have been reported on by media.

In 2011, Robert Mansfield was arrested and charged with wiretapping by Whitman police after he went to the police station with a recording of a traffic stop to ask for a citation to be dropped.

That same year, Chelsea Orr, the daughter-in-law of former Bruins player Bobby Orr, was charged with felony wiretapping for recording her conversations with Cohasset police officers after she was allegedly involved in an OUI-related accident.

In 2012, Irving Espinosa-Rodrigue was stopped by Shrewsbury police for allegedly speeding (he denied the accusation). After a video of the traffic stop — which reportedly showed Espinosa-Rodrigue instructing a female passenger to record the stop — was uploaded to YouTube, police raided charged Espinosa-Rodrigue with wiretapping.

I haven’t been able to find follow-up reports about any of these cases, so I’m not sure if or how they’ve been resolved. However, the Hyde decision makes it clear that people can be convicted of wiretapping in Massachusetts simply for recording their own interactions with the police if a prosecutor can convince a judge and jury that the recording was “secret.”

I hope it’s obvious why this is a problem. If a police officer is willing to commit a crime or engage in some other form of misconduct, what’s to stop the officer from trying to cover up evidence? A recent incident in which California deputies have been accused of seizing phones from witnesses who recorded them beating a man to death shows how important it can be to record the police without their knowledge.

It’s quite infuriating to see government officials push to increase their surveillance of the public even as they use try to stop the public from gathering and disseminating information about the government.

The state’s wiretapping statute need is certainly in need of reform, but not the kind of reforms Martha Coakley envisions.

Nov 2 2011

Lawsuit alleges Boston police beat man for recording friend’s arrest

Dr. Q

Earlier today, civil rights attorneys Howard Friedman and David Milton filed a federal lawsuit on behalf of Maury Paulino, a Boston resident who says he was beaten and arrested by a Boston police officer for recording his friend’s arrest with a cell phone camera on November 18, 2009 while three other officers watched and failed to intervene.

The lawsuit (.pdf) alleges that the police violated Paulino’s first, fourth, and fourteenth amendment rights by arresting and brutalizing him. The suit names the four police officers — Seth Richard, Nicholas Onishuk, Richard Davis, and James Moore — as defendants. The suit also names the City of Boston “for failing to supervise and discipline Boston police officers, thereby permitting them to unlawfully arrest people for videotaping police officers performing their official duties in public.” The suit seeks unspecified monetary damages.

According to the lawsuit, Maury Paulino, who was 19-years-old at the time, went to the Boston Police B-2 station to bail out his friend, Pablo Guerrero. After paying the bail and waiting for about 15 minutes, he saw Guerrero enter the lobby of the police station followed by Officer Seth Richard. The two were in the middle of an argument. Officer Richard allegedly shoved Guerrero and Paulino told him that they should leave. Officer Richard continued to shove Guerrero as he exited the station through the front door.

Once they were outside the police station, Officer Richard, now joined by officers Nicholas Onishuk and Richard Davis, approached Guerrero to arrest him again. The three began shoving Guerrero repeatedly and threatened to pepper spray him. It was at this point that Paulino pulled out his cell phone and began recording.

You can see his recording here:

While the three police officers arrested Guerrero and sprayed him with pepper spray, Paulino asked them why they were using so much force.

As the officers brought Guerrero back into the police station, Officer Richard asked the other officers for a second set of handcuffs so he could arrest Paulino (this can be heard on the video). Officer Richard allegedly tackled Paulino at this point.

While Paulino was on the floor, the three officers were joined by Sgt. James Moore, a supervising officer.

Officer Richard began punching Paulino in the face, dousing him with pepper spray, and kneeing him in the face. While this was going on, none of the other three officers attempted to intervene.

Once Paulino was bailed out of jail by his mother, he went directly to the ER at Boston Medical Center where he was treated for multiple injuries to his face, jaw, and mouth including bruising by his toothline and jawline, abrasions on his neck, bleeding from his mouth, nose, and lips, and laceration on his scalp. Paulino was also spitting up blood from his injuries.

Paulino was charged with disorderly conduct, resisting arrest, two counts of assault and battery on a police officer, and felony wiretapping.

The “wiretapping” charge against Paulino is one of the more interesting aspects of the story. As I’ve explained numerous times on this blog before, the state’s wiretapping statute only criminalizes secretly audio-recording others, yet Paulino’s video clearly shows that his camera was out in the open.

Paulino’s suit was filed just months after a federal appeals court ruled that the right to openly record police in Massachusetts is clearly established and police cannot claim “qualified immunity” against lawsuits if they interfere with this right. That ruling stems from a similar incident in which attorney Simon Glik was arrested on a “wiretapping” charge by Boston police for recording an arrest with his cell phone camera on the Boston Common in 2007.

Paulino and Glik are just two of many individuals who have been wrongfully charged with “wiretapping” by Massachusetts police officers for exercising their right to record and document police activity.

Luckily, the wiretapping charge against Paulino was dismissed by a clerk magistrate. Paulino was acquitted of all the other charges at trial.

It will be interesting to see how this suit plays out. I’ll post an update as soon as more information becomes available.

Nov 1 2011

Relative of Bruins player charged with “wiretapping” for recording cops

Dr. Q

The Patriot Ledger reported last month that Chelsea Orr, the daughter-in-law of former Bruins player Bobby Orr, was charged with felony “wiretapping” for recording her conversations with Cohasset police officers.

Chelsea Orr was arrested by the Cohasset police for drunk driving shortly after she drove her SUV off the road, hit a tree and stone wall, and flipped her vehicle over. After the police took Orr into custody, they brought her to South Shore Hospital to be examined by doctors.

Police claim that Orr told them she was Bobby Orr’s daughter-in-law and that she planned to have the officer who arrested her fired, stating that she could so do because she is “very powerful.” She also allegedly told the police that she had been secretly recording her conversations with them using her iPhone.

After police learned about the recordings, they seized Orr’s phone and tacked on a felony “wiretapping” charge.

Orr later pleaded not guilty to all the charges against her during a hearing at Quincy District Court. She was released on $1,000 bail.

Based on the police’s version of the story, it sounds as though Orr really is guilty of violating the Massachusetts wiretapping statute. Although it is legal to record one’s conversations with others in Massachusetts, the state’s wiretapping statute prohibits “secretly” audio-recording others. If Orr had held her iPhone “in plain sight” (to use the language of the Massachusetts Supreme Judicial Court), her recording would have been perfectly legal. As it stands, surreptitiously audio-recording the police — or anyone else — is a felony in Massachusetts.

Personally, I think this is ridiculous. Laws that criminalize the creation of audio-recordings of one’s interactions with police are attacks on freedom of expression and freedom of the press.

Police are public servants, paid for with tax dollars, so members of the public should be free to create records of what they’re doing when they’re on duty. Police are also powerful people and recording them is one of the best and only ways that the average person can hope to hold them accountable.

Criminalizing the recording of police officers — whether it’s done secretly or in the open — will only lead to more incidents of police abusing people. As former SJC Justice Margaret Marshall put it, the state wiretapping statute “allow[s] police officers to conceal possible misconduct behind a cloak of privacy.”

It may be that Chelsea Orr was drunk and driving in a way that endangered others around her. She may have even made an ass out of herself to the cops who arrested her. But none of that changes the fact that she should be allowed to record her interactions with police. If she goes to trial, I hope there are some sensible individuals on the jury who refuse to convict her of the “wiretapping” charge regardless of what the evidence is.

Update (7/1/2013): I found out by calling the Norfolk District Attorney’s Office that Chelsea Orr’s charges went to trial on May 21, 2012. Orr was acquitted of all the charges, including the wiretapping charge. Unfortunately, I don’t have any information about the arguments used during the trial, because the none of the media outlets that initially covered this story appear to have followed up on it.

Sep 8 2011

“Wiretapping” charge against Beau Davis dropped

Dr. Q

In late August, I wrote about how Beau Davis of Liberty On Tour was charged with “wiretapping” by the Greenfield police. When I wrote that post, I was cynical and noted my belief that Beau’s charge would likely go to trial. Luckily, it turns out that I was wrong.

Earlier today, Beau explained on Facebook that his charge was dropped:

So, for those of you who were wondering what happened with the wiretapping arraignment in Greenfield, MA yesterday, the district attorney Jeffrey A. Bengston has decided not to pursue the wiretapping charges due specifically to the decision on Simon Glik’s case.

The Simon Glik case mentioned by Beau is, of course, the case recently covered by Massachusetts Cop Block in which a federal court ruled that there is a well-established right to openly record police in Massachusetts and that police can be sued for violating that right.

It’s great news that Beau’s charge was dropped before going to trial. Hopefully now the Greenfield police will think twice about using frivolous “wiretapping” charges to punish people who record them.