After two long years, Fall River has finally settled with a man wrongly arrested for recording police.Read More
The saga of George Thompson, the Fall River man who was arrested for recording a police officer, is emblematic of America's tiered justice system, where ordinary people are punished just for exercising their rights, but powerful people like police officers face no repercussions whatsoever even when the brazenly break the law.
George Thompson was arrested by Fall River police officer Thomas Barboza in January, 2014 after he used his iPhone to record the officer even though recording police is protected by the First Amendment. While Thompson was still facing wiretapping and resisting arrest charges, a police department employee wiped his phone, destroying the video and all other data on it. The police department tried to blame Thompson for deleting the video, claiming without evidence that he might have used a cloud service to do it, until a company they hired to examine the phone determined a police employee had done it.Read More
The Braintree Police Department has a problem it's name is Officer Blake Holt. Holt has decided once again to waste taxpayer dollars in an effort to punish and enslave a member of the public. According to The Patriot Ledger, Holt arrested Pamela Jean Petrino at South Shore Plaza for wiretapping, disorderly conduct, and illegal possession of oxycodone and other prescription drugs last Tuesday. Holt also arrested Albert Distasio, who was with Petrino, but The Patriot Ledger does not specify the reason why.
According to The Patriot Ledger:
The police report that is part of Petrino’s case file says the incident began shortly after 7 p.m. Tuesday outside the mall’s Victoria’s Secret clothing store.
Officer Blake Holt said in his report that he recognized Petrino from a Dec. 30 incident at a cellphone accessory kiosk at the mall. At that time, Petrino tried to keep shoppers from the kiosk because she “hadn’t gotten satisfactory service” there, Holt said.
Holt said in the report that on Tuesday night, Petrino appeared to recognize him, and that a verbal exchange soon began. He said that as the exchange got sharper, she accused him of inappropriately touching her daughter Dec. 30.
As Petrino and Distasio walked away, she was holding her cellphone in front, close to her chest, apparently recording the exchange, Holt said. That violates plaza policy and state law – which state that a person who is being recorded must know that it is being done and must consent to it.
Holt claimed in his report that plaza policy and state law require that a person who is being recorded must know that it is being done and must consent to it. Holt is incorrect on both points about the wiretapping statute and the plaza's policy is irrelevant.
Holt previously embarrassed his department when he tried to bring a baseless charge against a man for “impersonating a police officer” because he drove his car which he painted to look like the character Barricade from the Transformers franchise. That charge were laughed out of court by a clerk magistrate, never even making it to a judge.
The Braintree police should know better by now. The wiretapping statute is not up for debate after the Glik v. Cunniffe ruling. The Glik ruling found that the department is responsible for training their officers about the correct definition of wiretapping, which has nothing to do with consent or knowledge. The wiretapping statute narrowly applies to “secret” recording. As long as a recording device is held in “plain sight,” the act of recording is not considered secret and does not violate the law.
According to Howard Friedman, a Boston-based civil rights attorney whose law firm represented Simon Glik in his lawsuit against the Boston Police Department:
The police report shows that the police officer does not understand the state wiretap law and is unaware of constitutional law on the right to record law enforcement officials. The state statute only requires consent for "secret" recording. It was written with recording phone conversations in mind. Since the officer could see he was being recorded, it was not secret and consent was not needed under state law.
Ms. Petrino had the first amendment right to record the police officer under the Glik decision. Police departments should be training police officers to understand the law. Officers should assume everything they do is being recorded. There is no need to arrest people for recording the police. Such arrests are highly likely to be illegal.
Last year, I traveled to Braintree to interview their officers (and alien robot vehicles) after Holt tried to press the nonsense impersonation charge against the Transformers fan. When I attempted to interview Braintree officers in the police station, I was ordered to leave and was told I was breaking the law by recording the officers. I spoke with Lieutenant Karen MacAleese, who was in charge of the station on that shift. MacAleese said, "You can't videotape my voice if I don't want you to."
Both Andrew and I explained the wiretapping statute to MacAleese. It seems that neither the Glik ruling nor our interaction with MacAleese prompted the Braintree police brass to read the law or make certain that their staff had been appropriately trained.
According to The Patriot Ledger, the Braintree police pressed charges for illegal possession of oxycodone and other prescription drugs in addition to the other charges. Any evidence of this alleged crime will likely be thrown out since any search incident to an unlawful arrest is considered fruit of the poisonous tree. Even if the evidence isn't ultimately thrown out, the charge should still be met with skepticism given the Braintree police's recent history with prescription medication.
Derick Eaton was arrested last year for having medical marijuana after showing his doctor's recommendation to the Braintree police. After a judge threw out the charges, Eaton got a court order for his money and medicine to be returned. The Braintree police refused to comply with the order, and only returned the money after a public outcry. Eaten still hasn't been given back his medicine, telling us that he is going back to court in February to fight for its return.
I contacted the Braintree Police Department and Chief Russell Jenkins for comment. I also reached out to MacAleese to see if she had looked into the wiretap statute after our encounter. I asked her about the responsibility of the department's leadership to provide training and a clear understanding of wiretap to departmental employees. I also sent MacAleese the Boston Police Department's training video about the wiretapping law, which I hope the Braintree police will help prevent future false arrests. Neither Jenkins nor MacAleese have responded yet.
Update: (same day as original post): Unbeknowst to us as the time of this story's initial publication, Blake Holt was directly involved in the arrest of Derick Eaton. Court documents provided to us by Eaton confirm that Holt was a "responding officer" in that case. Given that Holt was previously involved in an incident where a person was arrested over legal prescription medication, extra scrutiny should be given to his allegation that Petrino was unlawfully in possession of prescription drugs.
George Thompson has filed a federal lawsuit against Fall River Police Officer Thomas Barboza, who wrongfully arrested him earlier this year for video-recording.
“There was no excuse for Officer Barboza to arrest me. His actions showed a blatant disregard for my constitutional right to videotape police officers in public. Police officers need to be held accountable when they violate the law,” Thompson said in a press release.
David Milton, the attorney representing Thompson, said: “Recording the police is a critical, well-established First Amendment right. Officer Barboza’s unhappiness that he was being recorded does not make Mr. Thompson’s exercise of this fundamental right a crime.”
Milton, along with attorney Howard Friedman, previously represented Simon Glik in his high profile lawsuit against three Boston police officers who arrested him for recording. That case led to a federal precedent that recording police and other public officials is a well-established right protected by the First Amendment and resulted in a $170,000 settlement for Glik.
Thompson's lawsuit, which was filed in the U.S. District Court in Boston earlier today, seeks monetary damages for violations of Thompson's civil rights as well as legal fees.
Thompson was shoved to the ground and arrested by Barboza in January as he stood on his porch recording the officer with his iPhone. Thompson said he began recording Barboza because he was talking loudly on his cell phone and swearing while working a detail. Thompson was charged with wiretapping and resisting arrest.
After the arrest, the data on Thompson's phone was wiped while the device was still in police custody. The Fall River police tried to blame Thompson, saying that he must have reset it using a cloud service, but an outside company examined the phone and determined that a member of the police department was responsible.
The charges against Thompson were dropped on April 11, but police refused to return his phone so that they could investigate how it was reset. Police did not give Thompson his phone back until May 28, after he obtained a court order requiring them to return it.
Barboza has still not been held accountable for his actions by the police department. Thompson filed a complaint after he was arrested and Barboza was punished with a one-day suspension and prohibited from working details for 15 days because he was talking on the phone and swearing when he was supposed to be working, however, he still has not been punished for wrongfully arresting Thompson.
When Thompson was still facing charges, Police Chief Daniel Racine said during an interview with WPRI that he supported Barboza's decision to arrest Thompson. Racine has still never publicly admitted that the arrest was wrongful.
The person responsible for tampering with Thompson's phone has also still not been held accountable by the department. Racine told WPRI that if it turned out that a member of the police department wiped the phone, he would fire them, but he later went back on his word when that turned out to be the case. When the Racine announced that a member of the police department wiped the phone, he claimed that "the action was not malicious," although he did not say how he came to that conclusion or who was responsible.
Update (12/9/14): The Herald News has the police department's reaction to the news of the lawsuit:
It is not clear if the city will represent Barboza in defense of the lawsuit.
“If it is something job-related, the city represents its employees,” said Lt. Ronald Furtado, a department spokesman.
“We haven’t been served with the suit. When we receive notice, we will address it.”
The Boston Globe reports that the head of the Massachusetts Chiefs of Police Association supports putting body cameras on police and wants to file legislation that would legalize them (emphasis added):
As law enforcement officials across the state consider the president’s call for the use of body cameras by police officers, the Massachusetts Chiefs of Police Association has thrown its support behind the measure, the State Police are considering a pilot program, and municipal departments are working to untangle questions of cost, privacy, and logistics.
“There’s a lot of interest in the use of body cameras,” said A. Wayne Sampson, executive director of the police chiefs’ association. “We believe that if there is ever a question of what actually took place, it could be valuable information for the police departments.” ...
But, Sampson and other law enforcement officials say there are serious issues to be ironed out. Among them: Is it legal for police to record citizens without consent? How would cities and towns pay for the cameras? Would they run constantly, or would officers turn them on and off? Where, and for how long, would the footage be stored? Who could review it? ...
Sampson said the police chiefs’ group intends to file legislation in January that would create a specific allowance for the use of body cameras.
There's just one issue with this proposal: body cameras are already legal. Massachusetts has a law that bans surreptitious audio-recording of others, but the law does not ban openly recording others without their consent.
In the 2001 Supreme Judicial Court case Commonwealth v. Hyde, the court upheld the felony wiretapping conviction of Michael Hyde after he recorded a traffic stop. According to the SJC, Hyde "was not prosecuted for making the recording; he was prosecuted for doing so secretly."
The SJC further stated: "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. Had he done so, his recording would not have been secret, and so would not have violated [the law]."
Police who have arrested people for openly recording them have sometimes paid out thousands in lawsuits. Simon Glik and Maury Paulino, both of whom were wrongfully arrested by Boston police officers for making recordings, got $170,000 and $33,000 settlements respectively.
As long as police keep their body cameras in plaint sight, they won't run afoul of the law. On the other hand, it might still be a good idea to pass a law regulating the police use of body cameras. There are privacy concerns like how long police will be allowed to store the videos and when the videos should be released under the public records law. There's also the issue of when police can turns cameras off and what punishment they will face if they turn them off at inappropriate times. A law could help to iron out these sorts of issues.
A Braintree resident found himself facing a court hearing for allegedly “impersonating a police officer” last month after he decorated his Maserati to look like Barricade, a character from the Transformers franchise.
The vehicle bears some resemblance to a police cruiser, but says “Decepticons” – the name for the villainous, shapeshifting, alien robots from the Transformers universe – where most cruisers would have the name of the police department. The vehicle also says “to punish and enslave” in lieu of the usual police motto, “to serve and protect.”
The man was pulled over on August 9 by Braintree Police Officer Brian Holt, who wrote in his report that he stopped the vehicle because he was not aware of the police department owning any Maseratis.
Holt, another officer, and a sergeant took pictures of the vehicle and allowed the driver to go on his way. After consulting with Lieutenant David Delpapa, Holt requested that the man be issued a summons.
Russell Matson,* a criminal defense attorney who is representing the man, said his client is innocent of any wrongdoing and that the police are wasting tax dollars by moving forward with the case.
“Braintree police do not traditionally either drive Maseratis or have 'punish and enslave' written on the side of their police cars,” Matson noted.
Matson declined to release the name of his client at this time, citing the man's desire to avoid publicity, but has said he's a University of Massachusetts-Amherst graduate in his 20s.
The law Matson's client is accused of breaking states that it only applies to someone who “falsely assumes or pretends” to be a police officer and “acts as such or requires a person to aid or assist him in a matter pertaining to the duty of such officer.”
The police report does not accuse Matson's client of misrepresenting himself as a police officer to anyone or of attempting to exercise any police powers, so the case does not appear to meet any of the criteria set forth in the law.
The police report fails to mention that the vehicle said “Decepticons.” It also did not mention that the vehicle lacked lights and sirens that could be used to pull other motorists over.
Matson was quick to point out that as absurd and comical as the case is, it is still a serious matter for his client, who faces up to a year in jail and a $400 fine if convicted.
The Transformers fan faces a clerk magistrate hearing in Quincy District Court on September 4. The clerk magistrate will have to determine if there is enough evidence for a criminal complaint to be issued.
Matson said he hopes to get the case dismissed during the hearing, but it's impossible to predict what will happen.
We went to the Braintree police station to inquire about the case, but were met with hostility instead of answers.
The officer we first spoke with said he could not speak to us about the case, but offered to get his lieutenant. When the lieutenant came out, she demanded that we turn off our camera and claimed that we didn't have the right to record her voice without her consent.
In reality, there is no law in Massachusetts that makes it illegal to record anyone without their consent and the First Circuit Court of Appeals has ruled multiple times that people have a clearly established First Amendment right to record police and other public officials.
When we repeatedly challenged her on the law, the woman told us that we could stay in the police station “all day” if we wanted, but that no one would answer our questions if we continued recording.
She would not tell us her name or show us her police ID card (as required by state law), but she did say that her badge number was 73. She was not wearing a badge or name tag when she spoke to us. We later determined her identity to be Lieutenant Karen MacAleese by calling the police department.
We ultimately left the police station without getting any answers since no one would talk to us on camera.
The Transformers case isn't the first controversy the Braintree police have found themselves in the midst of in the past few weeks. Last month, Cape Cop Times reported that Braintree police had arrested a medical marijuana patient, taken cash and medicine from him, and refused to give it back after being ordered to by a judge.
Instead of harassing Transformers fans, shaking down medical marijuana patients, and making up fake laws to try to intimidate journalists, the Braintree police should focus their limited time and resources on real problems plaguing their community such as unsolved murders.
The Bay State Examiner will be reaching out to Mark Wahlberg, an actor from the Transformers movies who is himself from Braintree, as well as Michael Bay, the director of the movies, to ask them to weigh in on the case.
*Disclosure: The Bay State Examiner has published writing by Russell Matson in the past.
Worcester police officer arrested for alleged home invasion and assault stemming from incident at ex-wife's house.
Wiretap report shows explosion in government surveillance, nearly all drug war related.
US Attorney Carmen Ortiz gets her third Muzzle Award in three years, this time for refusing to release files related to the Ibragim Todashev shooting.
The four November ballot questions for Massachusetts have been finalized.
The Republican/MassLive.com has published an excellent two-part series about the Massachusetts wiretapping statute (see here and here), which is frequently misunderstood. Under the law, it is a felony to secretly audio-record someone else's voice regardless of who that person is or where the recording is made. The law has led to a number of cases of people being arrested for recording on-duty police officers. I was interviewed for this series, but none of my comments made it in, so I wanted to add a few of my thought to the discussion.
For the second article in series, The Republican interviewed Michael Hyde who unsuccessfully challenged the wiretapping law more than a decade ago.
Michael Hyde was 28 years old when the traffic stop made him a household name in wiretap law. He had long hair and a loud sports car. He was in a band.
Hyde was driving his white Porsche on Oct. 28, 1998, in Abington with his friend Daniel Hartesty in the passenger seat. An Abington police officer pulled him over around 10:30 p.m. because of the car’s loud exhaust and an unlit license plate.
Three more officers arrived. Hyde and Hartesty were ordered out of the car and Hartesty was frisked. An officer reached into the car to search a plastic bag on the floor. It was just full of CDs.
Things unraveled quickly.
Hyde said the stop was “a bunch of bulls---.” One officer called him an a--hole. An officer asked if he had any “blow.” Hyde was riled up. The stop had gone “so sour,” an officer later testified.
Hyde and Hartesty were allowed to leave and weren’t cited for anything. The whole encounter took about 15-20 minutes, and it could have ended there.
Fifteen years later, Hyde still thinks of the stop and the trouble that followed.
Hyde had a tape recorder in his car that night, and when he was pulled over, he hit record. He didn’t tell officers he was recording and the recorder wasn’t conspicuous. Right then, he had committed an unlawful wiretap under Massachusetts statute.
The next week, he brought the recording into the Abington police station to complain. He was charged with a violation of wiretap statute — a charge that can carry up to three years in prison.
He was convicted and his appeal went to the Supreme Judicial Court of Massachusetts. The 2001 decision upheld his conviction and made it clear for future cases: secret recording by civilians — no matter the place or the person recorded — is illegal in Massachusetts.
Hyde wasn’t sent to prison. He received two years probation for the wiretap charge.
He’s in his forties now with a wife and a child. He wasn’t an activist in 1998 and had no interest in surveillance or wiretapping, but now he watches wiretap cases closely.
“Once it happens to you,” Hyde said, “then you’re involved.”
He said police use the statute to charge people who cross them, but do not charge people in other situations.
“The wiretap statute is being used as a weapon to protect certain people,” Hyde said.
The preamble to the wiretapping statute says that secretly audio-recording conversations must be outlawed because the "uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth."
But it's hard to see what privacy interests are at stake when someone records a traffic stop like Hyde did.
Traffic stops occur on public streets. The police officers who conduct them are public employees whose salaries are paid with tax money. The things said at traffic stops may be quoted in police reports. They may be testified about in court, where anyone who shows up could overhear them. Court hearings can even be broadcast on TV in Massachusetts.
There's really nothing private at all about what goes on during a traffic stop, so it doesn't really make sense to say that a police officer's privacy is violated if someone records them during a traffic stop.
In other states, this isn't an issue because wiretapping laws only apply to conversations where there is an expectation of privacy. That means recording a traffic stop or recording a police officer while standing in a public place is legal even if done secretly.
Secret recording vs. Open recording
Michael Hyde's Supreme Judicial Court case set the precedent that the wiretapping law can be used to prosecute people for secretly recording police, but the ruling also made it clear that it's legal to record the police openly. Some people have the misconception that the law makes it illegal to record people without their consent, but the ruling in the Hyde case clears this up.
As the SJC explained in their ruling, Hyde's conviction could have been avoided "if, at the outset of the traffic stop, [he] had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight. Had he done so, his recording would not have been secret, and so would not have violated [the wiretapping statute]."
Despite this clear precedent, police have arrested and charged people with wiretapping for openly recording. In fact, the Boston Police Department's official stance was that police could arrest people for recording them without their consent until 2010 – nearly a decade after the Hyde ruling.
During this period, a number of people were arrested by Boston police on spurious wiretapping charges, with Simon Glik probably being the most famous case. Glik was arrested in 2007 for recording three Boston officers make an arrest on the Boston Common. Glik sued the Boston police and was ultimately given a $170,000 settlement in 2012 after a federal appeals court ruled that he had a well-established, First Amendment right to record the police.
And even though the Boston police reversed their policy and settled Glik's suit (as well as a lawsuit from Maury Paulino, another man arrested for recording police), they still haven't stopped abusing the wiretapping law. Last year, Boston police arrested a Northeastern student for disorderly conduct and wiretapping after he recorded them during the celebration after the Red Sox won the World Series.
Police will probably continue to misapply the wiretapping law until they face real accountability for doing so. I've never heard of a Massachusetts police officer being fired for arresting someone on a trumped-up wiretapping charge. When the Boston police reversed their stance on the wiretapping law, they said the officers would "face discipline ranging from an oral reprimand to suspension."
In the George Thompson case, which The Bay State Examiner has been reporting extensively on, the Fall River police chief actually told WPRI that he supported an officer's decision to arrest Thompson for recording. After the prosecutor dropped the charges, the police chief never publicly admitted that he was wrong and the officer who made the arrest was not punished at all.
District attorneys aren't prosecuting the police who make these sorts of false arrests either. I have yet to hear of a case where a district attorney even considered prosecuting a Massachusetts police officer for falsely arresting someone under the wiretapping statute.
There have been some legal settlements – like Glik's – but the money awarded to the victims comes from taxpayers, not the officers who were responsible, so there's no reason to think this will change how the police behave.
Police won't stop arresting people for video-recording until they face serious repercussions for doing so.
The future of the wiretapping law
While openly recording police is a great way to ensure police are held accountable, there are reasons a person might want to record an encounter with the police without their knowledge.
For instance, if a driver is pulled over, they might worry that they're more likely to get a ticket if they tell the police they're being recorded. In cases where police are being extremely aggressive, people might worry that their camera could be taken from them or destroyed if the police know they're being recorded.
The Hyde case shows that the state's wiretapping law, rather than protecting privacy, shields police from accountability when they engage in misconduct. Hyde attempted to make a complaint and got convicted of a felony for his efforts.
As Hyde put it in his interview with The Republican:
“(Government is) taking more and more rights away from us, while ensnarling themselves further into privacy issues,” Hyde said.
The law is out of balance, he said, and it restricts how citizens can protect themselves while it shields police.
“Drunk driving isn’t a felony,” Hyde said. “Assault and battery isn’t a felony. But recording the cops is a felony?”
The law, which was passed decades ago, also seems out of touch with current technology. As long as the law is in place, there's the danger that people who don't understand the law could break it without even meaning to and wind up as convicted felons. That seems to be what happened to Hyde, and his case happened before smartphones with built-in cameras became a ubiquitous aspect of daily life.
Simon Glik's case established that there is a First Amendment right to record the police. But as Carlton Williams, an attorney with the American Civil Liberties Union of Massachusetts, told me earlier this year, the ruling leaves it ambiguous as to whether secretly recording the police is protected.
It's possible that the law could be ruled unconstitutional if someone challenges it. While Hyde's challenge to the SJC failed, the law could still be struck down in federal court if someone is willing to challenge it.
A recent incident in Springfield, where a woman was accused of secretly recording police with a cell phone hidden in her purse, could be that case.
Expect to hear more from us at The Bay State Examiner about the wiretapping law.
Correction (8/24/14): This article originally stated that the Boston Police Department's stance was that they could arrest people for recording them until 2012. It has been corrected to say 2010. 2012 is actually the year when the department subjected the officers who arrested Simon Glik to disciplinary action.
The Bay State Examiner as well as Photography is Not a Crime (PINAC) have made records requests to the Fall River police in order to shed light on Thompson's case. None of the requests by either group have been addressed despite the fact that state law mandates a response within 10 days.
Thompson told Officer James Costa, who was working at the front desk in the police station, that he was serving the chief with the court order. Costa’s reaction was to attempt to hinder Thompson from executing the court order.
Costa first attempted to claim that the court order wasn’t a court order, then claimed that Thompson should have served the order before it existed to get his phone back, before finally admitting that he had no idea about Thompson's case. Finally Costa offered to fetch someone who might actually know what he was talking about.
While we waited, Thomspon spotted Thomas Barboza, the police officer who arrested him in January, and I followed him outside and attempted to speak with him. He refused to speak with me and drove off (click here for video).
Later, Detective Konarski brought out Thompson's phone in an evidence envelope. This came as a surprise to Thompson, who said the Fall River police had repeatedly claimed that the phone was not in their possession and that they would inform him when it was back so that he could pick it up. Thompson asked Konarski why they failed to notify him about the phone and received no answer.
The detective then pulled out a spring-loaded knife to open the evidence folder. In Massachusetts, carrying spring-loaded knives is illegal. Thompson pointed this out to Konarski, who did not respond but immediately left the interview room and returned with a pair of scissors.
Konarski had Thompson sign a chain of custody document to receive the phone. Thompson signed and then asked for a copy because he is trying to determine who had access to his phone when it was wiped. Konarski said that he would check if Thompson could see the document.
Konarski returned and informed Thompson that he would not receive the document nor could he look at it because the only person who could okay this activity is Fall River Police Chief Daniel Racine.
Fall River police don't take records requests
Thompson requested the chief be asked and I made a verbal records request on the spot as well for the document. Konarski informed me that the Fall River police do not accept verbal records requests.
According to the Massachusetts Secretary of the Commonwealth, "A written request is not required but is recommended. An oral request made in person (not by telephone) is permitted" (see pg. 2).
Detective Konarski made no attempt to take notes or obtain my contact information so any confusion on the Fall River police’s side about what was requested or by whom is of their own doing. Without leaving the room or contacting anyone Konarski then told me my records request had been “passed on.” It has been over ten days and I have, needless to say, not had any response on this request.
As we waited in the interview room for Chief Racine, Thompson called the chief’s line. Thompson notified the woman who answered that he was recording the conversation to make sure it wouldn’t be actual felony wiretapping. Thompson informed her that we were in the interview room waiting for the chief. The woman explained that the chief was in a meeting, but that she would let him know.
At no time was Thompson informed that the police line was also being recorded by the Fall River police. We’ll see if the District Attorney, who spent months charging Thompson with a bogus wiretap charge, will pursue this case of what may be an actual wiretap.
After this exchange, Lieutenant Ronald Furtado, the head of Fall River’s “Professional Standards” division which I later learned encompasses Internal Affairs, then came to clarify that the Fall River police would not give us any further information and would not address either The Bay State Examiner or PINAC's overdue written requests.
Furtado explained that the Fall River police do not abide by the law about verbal requests and falsely claimed the chief was not in the building when we asked to see him (the chief's car was parked outside). Furtado told us that to make a records request we had to do it in writing in person or send it through the mail with a return receipt. Furtado then walked off mid-conversation to avoid telling me who to talk to about the written records requests from more than a month ago.
I returned to the police window and requested to speak with whoever handles records requests. A short while later Staff Sergeant William Francis came out. The sergeant looked for any of the requests from The Bay State Examiner and PINAC and claimed Fall River police had none.
The sergeant explained that there is a process for making records requests: they only take the requests in writing and they have to be mailed to a specific division which would have the records. I asked for a list of the divisions and who I should address future requests to and was told I was not allowed to have that information.
I asked who was actually in charge of handling records requests and was told no one is but that whoever the staff sergeant on duty happens to be handles them. Given the ridiculous multitude of failures on display, I chose to make a new, verbal request for the various documents that the Examiner and PINAC had already requested in writing.
Sergeant Francis told me I needed to write out and mail the request to a different division because his division (which is in charge of giving out the records) didn’t have those records and wouldn’t pass the request forward.
I explained that I needed to have the recording of me making the request to him as evidence that the Fall River police had received the request. Sergeant Francis allowed me to get partway through the request then pointed out that since it wasn’t in writing he would not be responding and didn’t know what I was requesting. I told him to take notes. He refused.
At this point no member of the Fall River police had even taken down my name let alone my contact information. Francis then declared that the conversation was over and began to walk away.
I asked him for his name and badge number. He gave me his name and claimed he didn’t have a badge number so I asked to see his police ID card. He refused and left. Under Massachusetts law, a police officer must display his police ID card upon lawful request.
Fall River police don't take complaints
I walked back to the front desk and asked Officer Costa for a blank complaint form. The Fall River Police Department's citizen complaint procedure is on their website:
It is of utmost importance to the administration of the Fall River Police Department to provide citizens of Fall River with a quality of police services citizens that ensures the utmost integrity of all employees.
To ensure that this level of service is continually provided to citizens, it is recognized that there must be a method for the administration to be made aware of citizen’s complaints regarding actions or inactions of sworn or civilian employees of this department, that fail to meet the standards required.
It is the policy of the Fall River Police Department to accept and investigate all complaints of misconduct or wrongdoing against the Department or Department employees, regardless of the source of such complaint, by conducting a regulated, thorough and impartial examination of all available factual information.
Procedure: A standard complaint form shall be used to record all complaints of misconduct, mistreatment or unethical practices against Department personnel, whether registered by a citizen, initiated from within the Department or forwarded by another governmental agency. The Complaint Control Form (PD 252) shall be located at the Fall River Police Department.
Any person requesting to make a complaint against an employee of the Department shall, upon request, be given a copy of the Complaint Control Form (PD 252)
Despite this clear policy, Costa refused to give me a complaint form. He claimed the point of a complaint form was to allow people to speak to a sergeant and said he’d send someone out to speak with me.
That “someone” turned out to be Sergeant Francis – the officer I was trying to make a complaint about – and a captain, whose name I can’t make out in my video, neither of whom are with Internal Affairs.
The captain further attempted to block me from making a complaint by telling me that I would be contacted by "Professional Standards" with more information (they still didn’t have my name or contact information), and by telling me “there is no complaint.” The captain did finally take my contact information when I pointed out that no one else had yet.
I continued to demand that I be allowed to make my complaint and the captain relented and said he would check if IA was free to speak with me. The captain never returned and I was left waiting for the next hour with no idea if anyone would be coming out to speak with me.
Thompson tried calling the IA line, but no one answered. Lieutenant Furtado came back out after I spoke with a police employee and asked them to call IA, but Furtado would not speak because I had my camera rolling and would not say if he was with IA.
I turned off my cameras to speak with Furtado because I wanted to make my complaint, but he declared that the conversation was over and began walking away. I followed him and pointed out that the cameras were off. Furtado said that since Thompson – who was across the lobby from us and not involved in the interaction – had a camera which was not on or pointed at us, the conversation was still over.
Furtado then left without taking the complaint. He did not offer to take me to a private room where he could speak with me without Thompson's presence nor did he give me a complaint form to fill out. I left the Fall River Police Station after confirming that Furtado was the head of Internal Affairs.
My only trip to the Fall River Police Station uncovered that the Fall River police freely break laws while refusing to provide any services whatsoever. In the course of about three hours, members of the Fall River police seem to have wiretapped George Thompson, were caught with an illegal knife, broke the police ID card law, and refused to follow the public records law. Sergeant Francis who handles records requests made it clear that it is nearly impossible to get the Fall River police to release public records. Finally, Lieutenant Furtado, who is in charge of “Professional Standards” and Internal Affairs, refused to take my complaint about the misbehavior and refused to be of any assistance in making records requests.
Will there be any sort of oversight or investigation conducted by the Fall River city government? When we spoke with the mayor earlier this year, he stressed that Police Chief Daniel Racine has his full confidence and that the he would only take actions on matters concerning the Fall River police if Racine told him to, so that doesn't seem very likely.
Yesterday, the Fall River Police Department announced the results of the investigation into how George Thompson's iPhone was reset while in police custody. According to the report by Ken Bell & Associates, a private forensic company that was hired by the police department, the data on Thompson's phone was wiped when a Fall River police officer entered incorrect passwords 10 times, triggering a security feature. The report did not say who was responsible for wiping the phone or why they entered 10 incorrect passwords.
The report also said that the phone was wiped prior to being reset to factory settings. The phone was not reset until it was connected to a computer at the police station that had the program iTunes installed on it.
Thompson was shoved to the ground and arrested by Fall River Police Officer Thomas Barboza in January as he stood on his porch recording the officer with his iPhone. Thompson said he began recording Barboza because he was talking loudly on his cell phone and swearing while working a street detail. Thompson was charged with wiretapping and resisting arrest. After the arrest, Thompson's phone was wiped while in police custody. In a report, two Fall River police detectives blamed Thompson, saying that he must have reset it using a cloud service, an allegation which Thompson vehemently denied. The charges against Thompson were dropped on April 11, but police refused to return his phone so that they could investigate how it was reset. Police did not give Thompson his phone back until May 28, after he obtained a court order requiring them to return it. Maya of The Bay State Examiner accompanied Thompson when he went to retrieve his phone. Video of that is forthcoming. The Ken Bell report makes it clear that Thompson's video can never be recovered. "When a file system is wiped correctly, all of its data is over-written by random characters, and the data cannot be recovered," the report said. In addition to releasing the Ken Bell report, Fall River Police Chief Daniel Racine issued a prepared statement for news media.
"I have reviewed the external forensic examination report completed by Ken Bell and Associates (KBA) and accept their findings. It is apparent that the data on the iPhone was 'wiped,' but the action was not malicious," Racine said. Thompson disagreed with the chief's conclusion that his phone was not deliberately wiped, saying he “absolutely” believes someone did it on purpose. “If they didn't, it’s incompetence,” he added. Chief Racine's statement gave no indication that he would take disciplinary action against the officer responsible for wiping the phone. Racine previously told WPRI, “If a Fall River police officer erased that video, he’s fired.” Thompson said he believes the chief is going back on his word. After it was announced in April that Ken Bell & Associates was conducting an examination of Thompson's phone, The Bay State Examiner and Photography is Not a Crime (PINAC) attempted to uncover information about the company, which had an incomplete-looking website with no professional contact information (a phone number and email address have since been added). Carlos Miller, of PINAC, was able to determine from publicly-available documents that Ken Bell went to the same college as Police Chief Daniel Racine, leading Miller to speculate that the two may be college friends. Both The Bay State Examiner and PINAC made public records requests to the police department to learn more about their relationship with Ken Bell & Associates, but the requests have all been ignored. The Bay State Examiner has made an appeal to the Supervisor of Records, the state agency responsible for oversight of the Massachusetts public records law, and is currently waiting to receive a determination on the case. Last Monday, Thompson said in a Facebook post that he spoke with Ken Bell on the phone. “After speaking with Ken at length I'm actually feeling that the truth will come to light,” Thompson wrote. “Ken has stated that while both he and Chief Racine did attend the same college they were NOT friends, nor has he ever met or had the opportunity to work with the Chief.”
Thomas Barboza, the police officer who arrested Thompson, still has not been held accountable for his actions. Thompson filed a complaint after he was arrested and Barboza was punished with a one-day suspension and prohibited from working details for 15 days because he was talking on the phone and swearing when he was supposed to be working, however, he still has not been punished for arresting Thompson.
When Thompson was still facing charges, Chief Racine said during an interview with WPRI that he supported Barboza's decision to arrest Thompson. Racine has still never publicly admitted that the arrest was wrongful.
In the prepared statement released yesterday, Chief Racine said he would not provide additional comments about the case because “Mr. Thompson has publicly stated he intends to file civil action against the Fall River Police Department.” Thompson said he is not currently preparing a lawsuit against the department, but is instead focused on “getting to the bottom” of who wiped his phone. Nevertheless, Thompson indicated that he would have no problem getting legal representation if he chooses to file a suit. “I've had lawyers contacting me. If I want to file a suit, I've already got the person I'm gonna do it with,” Thompson said. Thompson said he plans to attend a city council meeting on Tuesday with the hope of speaking to the council about his case.