The Boston City Council today voted 12-0 to fund Arbitrator Timothy Buckalew’s arbitration award covering the collective bargaining agreement between the Boston Police Patrolmen’s Association and the City of Boston for 2010-2016. Read a copy of the Award here, and a copy of the arbitrator’s opinion here. Sandulli Grace is proud to have represented the BPPA in this proceeding.
Following a settlement in the Boston Police videotaping lawsuit last year[1], design and technology blog site Gizmodo.com posted an article designed to educate readers on legally (and safely) videotaping the police in public. Here’s the article: http://gizmodo.com/5900680/7-rules-for-recording-police.
While Gizmodo provides helpful information for anyone involved in one of these (ever-growing) encounters, the article definitely seeks to equip the “aspiring cop watcher” (see article) with the tools and knowledge to openly record police in an age where recording devices are readily available. This entry is geared more towards educating law enforcement here in the Commonwealth, both in protecting the rights of the police officer and preserving the rights of the citizen.
Overview of G.L. c. 272, § 99
M.G.L. c. 272, § 99 (“The Statute”), entitled “Interception of wire and oral communications,” is commonly referred to as the Wiretapping statute in Massachusetts. Because G.L. c. 272, § 99 imposes criminal sanctions, and is associated with the potential exercise of several constitutional rights, the statute has far-reaching effects in both the criminal and civil context. The relevant text of c. 272 § 99 reads as follows:
Any person who – willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined…
The operative word, ‘interception,’ means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication. G.L. c. 272, § 99(B)(4). The term ‘intercepting device’ is defined as “any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication.” G.L. c. 272, § 99(B)(3).
In 1968 the Legislature eliminated the so-called “one-party consent” aspect of the statute[2], thereby prohibiting all “secret recordings” by members of the public, including “recordings of police officers or other public officials interacting with members of the public.”[3] In so doing, the Legislature created what is considered a more restrictive electronic surveillance statute than the federal standard, as well as several other states.[4]
The Gizmodo article is misleading in stating that Massachusetts is one of 12 states that require the consent of all parties before someone records a conversation. As discussed below, a party need only have knowledge of the recording for it to be lawful; his or her consent is not required. This is an important distinction for law enforcement who are openly being recorded on-duty; just because you don’t consent to being recorded by an individual, does not mean you can stop the recording from happening or make an arrest.
Criminal consideration and relevant case-law
In the criminal context, a violation of the statute is classified as a felony, with a maximum penalty of five years in a state prison (or two and one-half years in a jail or house of correction).
The Supreme Judicial Court has interpreted the statute to penalize only “secret” use of electronic devices to hear or record the contents of a wire or oral communication with another.[5] In Commonwealth v. Jackson, 370 Mass. 502, 507 (1976), the Court held that an individual needs to have “actual knowledge” of a recording and that such knowledge can be shown where there are “clear and unequivocal objective manifestations of knowledge.”
In applying the analysis undertaken in Jackson, the Court held that a criminal defendant did in fact violate the statute by recording an encounter with several police officers during a traffic stop, unbeknownst to the officers. Commonwealth v. Hyde, 434 Mass. 594 (2001). The significance of the Hyde opinion is that the Court (1) declined to carve out an exception for citizens to secretly record police officers during traffic stops, as police officers are just as entitled to the protection of the statute; and (2) that the Court stated that the “problem [in this case] could have been avoided if, at the outset of the traffic stop, the defendant simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.” 434 Mass. 599-600, 605.
Constitutional consideration and relevant case-law
Interpreting the statute from a federal constitutional perspective, the First Circuit Court of Appeals has recently held that the filming or videotaping of police officers performing their responsibilities is protected by the First Amendment. Glik v. Cunniffe, 655 F.3d 78 (1st Cir.)(2011). The plaintiff in Glik was arrested for using his cell phone’s digital video camera to film several police officers making an arrest on the Boston Common. 655 F.3d at 80. He was charged, among other things, with violating the Massachusetts Wiretap statute. Id.
After the trial court dismissed the count charging the plaintiff with violating the Wiretap statute (for lack of probable cause), he filed a civil rights action in the United States District Court, alleging violations of his First and Fourth Amendment rights. Id. The defendants moved to dismiss, arguing the officers were entitled to qualified immunity because “it is not well settled [the plaintiff] had a constitutional right to record the officers.” Id. The District Court denied the defendant’s motion, holding that the “First Amendment right publicly to record the activities of police officers on public business is established.” Id. The defendants appealed.
Though subject to reasonable time, place, and manner restrictions, the court held that an individual’s filming of the police engaged in official business is protected by the First Amendment. Id. at 84. It furthermore held that the plaintiff’s actions here, which included audio and visual recording, “fell well within the bounds of the Constitution’s protections.” Id.
In addition, the court held that the plaintiff’s complaint (without deciding the ultimate merits of it) made out a proper allegation for a Fourth Amendment violation, as the officers lacked probable cause to arrest him under G.L. c. 272, § 99. Id. at 88. Interpreting the Massachusetts Wiretap statute, the court held the plaintiff’s recording was not “secret” within the meaning of the statute.[6] Id.
Implications
In light of Jackson and Hyde, the actions of a bystander in openly recording a police officer would not make out a criminal complaint for a Wiretap violation under G.L. 272 § 99. On the other hand, secretly recording an interaction with the police during a traffic stop, for example, would be a Wiretap violation.[7] While the law only requires actual knowledge as opposed to consent in order to be lawfully recorded, it offers more protection to law enforcement in that it prohibits all secret recordings, even those done in a crowded public place.
Another important consideration is that, subject to reasonable restrictions, a bystander who openly records a police officer in a public setting is not only (generally) safe from Wiretap prosecution, but is also engaged in a constitutionally protected activity.[8]
[2] Until 1968, the statute permitted the recording of one’s own conversations, or conversations with the prior permission of one party. See Hyde, infra.
[4] The majority of wiretapping statutes found elsewhere, including the federal standard, prohibit only the secretive recording of another’s words when spoken with a “reasonable expectation of privacy.” See Hyde, supra at 599, fn. 5. As stated above, G.L. c. 272 § 99 prohibits “all secret recordings.” Id.
[5] The Court also interpreted “secret” as broader than just those situations where an individual has a reasonable expectation of privacy. Jackson, infra.
[6] As the plaintiff was recording the incident on his cell phone from about ten feet away, one officer stated “I think you have taken enough pictures,” to which the plaintiff replied “I am recording this.” Once it was established that the plaintiff was recording audio as well as visual, he was placed under arrest. Glik, 655 F.3d at 79.
On July 19, 2013, Arbitrator Timothy Buckalew reinstated Millbury Police Detective Kimberly Brothers, who terminated in August 2012 for allegedly “harassing” three residents of the Town. Two women who had formerly dated Detective Brothers’ boyfriend, and one who had recently ended her friendship with Detective Brothers, accused Detective Brothers of either following them in a cruiser, or parking near their workplaces in order to intimidate them.
The Union, represented by Attorney Leigh Panettiere of Sandulli Grace, P.C., demonstrated at the arbitration that Det. Brothers, a busy and well-respected detective who before being promoted to detective was an extremely productive patrol officer, had been assigned to official police duties that often brought her near the homes and workplaces of the accusers. The Union was also able to present numerous instances of inconsistencies and untruths in the testimony of the three accusers, and that the accusers were all talking to each other about Det. Brothers. Additionally, the Union demonstrated that the investigator failed to inquire about any of the inconsistencies in the stories the accusers told.
The Arbitrator rejected the allegations of harassment. He called the Town’s investigation “hasty and inadequate.” He found that all three of the accusers were motivated to lie, and he found Det. Brothers to be “credible and consistent.”
The Town also accused Det. Brothers of “excessive texting,” clearly in an attempt to shore up the weak harassment allegations. The Police Department had no policy on texting. The Town never reviewed the text records of any other officer in the department, and did not even give Det. Brothers an opportunity to defend herself against this allegation during the investigation. Moreover, the Union presented testimony of fellow officers and the Chief of Police that Det. Brothers did not text on duty any more than other officers in the department. The Arbitrator credited the testimony of those witnesses, and stated, “the Town cannot not show excessive texting when it has no standard from which to argue the employee deviated.”
The Arbitrator delivered the Millbury Policy Association a resounding victory in this case, ordering Det. Brothers reinstated with full back pay and restoration of all benefits, including details and overtime. Det. Brothers returned to her Detective position on August 26, 2013. This is the third in a series of recent victories for the Millbury Police Association. The Arbitrator’s Award in the Kim Brothers case can be read here.
On November 2, 2010, Attleboro Police Detective James Cote, who was also President of the Attleboro Police Association, MassCOP Local 352, suffered a cardiac arrest in his home and was in critical condition for days. MassCOP members throughout the state showed their support for Det. Cote and his family. Det. Cote made an astounding recovery in the face of a prognosis of a mere 5% chance of survival. However, he suffered memory loss from lack of oxygen. While able to resume many of the activities of his daily life, Det. Cote was unable to continue his work as a police officer, and had to retire at the age of forty.
Det. Cote’s Union, represented by Leigh Panettiere of Sandulli Grace, P.C., assisted Det. Cote in filing an application for accidental disability retirement with the City of Attleboro Retirement Board, taking the position that Det. Cote’s cardiac arrest was work-related. Det. Cote’s cardiologist diagnosed Det. Cote with a hypertrophic cardiomyopathy, usually an inherited condition. Hypertrophic cardiomyopathy often causes sudden death in professional athletes, who appear completely healthy one moment but die of a sudden cardiac arrest the next. One member of the medical panel believed that the existence of this so called “risk factor” exempted Det. Cote from the heart law presumption.
However, the Union was able to demonstrate through Police Department records and the testimony of Det. Cote’s fellow detectives that Det. Cote’s underlying heart condition had been exacerbated by the stress of a high-profile, high-pressure murder investigation that Det. Cote was spearheading up until the night before his cardiac arrest, and that, therefore, even if the heart law presumption did not apply, Det. Cote was entitled to an accidental disability retirement because his job had accelerated the condition.
Thanks to a well-written, thorough affidavit by Det. Cote’s cardiologist, a dedicated local Retirement Board willing to do the extra work necessary to understand the medical evidence, and the support of his Union and the Police Department, the Accidental Disability Retirement application was accepted by the Retirement Board, and it was approved by PERAC on June 27, 2013.
MassCOP and Attorney Panettiere were happy to be able to assist Det. Cote in the face of this daunting injury, and continue to send their good wishes to him and his family.
This is in follow up to our blog post concerning the amendment of the civil service residency statute, MGL c. 31 sec 58. Since this amendment was part of the State Budget and since the Budget has an emergency preamble, the amendment to 31 sec 58 was also effective immediately. Therefore the amendment is in effect and it would be appropriate for a police and/or fire fighter unions in civil service communities to request bargaining with their municipal employers to increase the 10 mile residency requirement as the amendment allows.
I’m not sure if you are aware, but the Republican National Committee is actually voluntarily meeting in Boston this week. I’m a little surprised that they are here, I’m sure that they’re worried that just being in the Bay State might lead them to accidentally enter into a gay marriage. But here they are, and it’s led to some amusing news coverage of the “struggle” within the Grand Old Party.
It seems that ever since last November, the GOP has been soul searching about how the heck it can ever hope to win a national election. Notwithstanding the fact that the GOP kicked the snot out of the Democrats in 2010 and look to have a lock on the House and a decent shot of regaining the Senate in 2014, no one can figure out how a candidate can win both the Republican nomination and then go on to win a national election. Remember when all of the candidates for the Republican nomination said that they firmly reject evolution? That plays great in the primaries, not so great in the regular election.
So, the big question that the media is asking the Republicans in Boston is, “can a “moderate” candidate win the GOP election?” And the “moderate” they keep mentioning is Chris Christie, the corpulent New Jersey Governor. Christie made a visit up to Boston to speak to the assembled CEO’s, right-wing Christian fundamentalists, and Ron and Rand Paul libertarians. Christie told the GOP faithful that the party doesn’t need to “sacrifice the base” to win. In other words, the GOP doesn’t need to budge on civil rights, women’s rights, workers’ rights, immigration, or any of the other areas where the positions they hold are in the minority. So, how can the GOP win if it isn’t going to actually support positions in line with the majority of Americans? According to Christie its simple – JUST SCAPEGOAT PUBLIC EMPLOYEES!
An article in today’s Wall Street Journal describes Christie’s plan of divide and conquer. (“Christie Lays Out His Plan for GOP Revival,” 8/16/2013, p. A5). The Article states:
“You don’t have to sacrifice your base voters to win Latino votes,” [Christie] said, according to a recording of the closed-door speech reviewed by The Wall Street Journal. “You don’t have to sacrifice your base voters to win a share of the African-American vote.”
He contrasted his long-running feuds with the state’s public-sector unions with his friendliness toward the private-sector unions, noting that he had won the endorsement of 24 building-trade unions.
“We have an opportunity as a party to drive a wedge in the union movement,” he said. “And the laboratory where that is happening right now is in my state.”
Now I’m not sure I really understand how systematically working to destroy public sector workers is going to make Latinos and African-Americans more likely to vote for a Republican. But put that aside for a minute to ponder that Chris Christie is what passes for “moderate” these days. Yikes.
The Governor has just signed the budget which includes an amendment to MGL c. 31 sec 58.
C. 31 sec 58 is a section of the Civil Service Law and addresses “Municipal police officers and firefighters; qualifications.” It includes a residency requirement for civil service police officers and firefighters, stating that within 9 months of appointment a person must reside within the city or town where he/she is employed or at any other place in the Commonwealth that is within 10 miles of the perimeter of such city or town. The Amendment to sec 58, included in the budget, provides that a city or town may increase the 10 mile residency limit under a collective bargaining agreement negotiated under chapter 150E. Therefore, police and firefighter unions in civil service cities and towns may now negotiate to expand the civil service 10 mile residency requirement of sec 58 beyond the 10 miles.
What remains unclear is the relationship of this amendment and the residency requirement of MGL c. 41 sec 99A which requires police officers and firefighters to reside “within fifteen miles of the limits of said city or town.” For any city or town where the police and fire departments are not covered by the civil service statute, this new amendment will have no impact and those police officers and firefighters continue to be covered by c. 41 sec 99A and must reside within 15 miles of the City or Town where he/she is employed. As for civil service communities, at a minimum, the amendment to c. 31 sec 58 certainly provides for collective bargaining in order to increase the 10 mile limit of sec 58 to the 15 mile limit of sec. 99A.
Based upon the case Mulrain v. Board of Selectmen of Leicester, 13 Mass App Ct. 48 (1982) it is reasonable to take the position that the 15 mile limit of c. 41 sec 99A already superseded the 10 miles requirement of c. 31 sec 58 since the Mulrain case addressed the conflict between the 2 statutes and stated that:
“We hold that the more specific provisions of the new sec 99A control the more general provisions of new c. 31 sec 58, concerning the effect of town by-laws.”
However, the Mulrain decision did not specifically address the conflict between the 10 mile and 15 mile limits.
When the Civil Service Commission recently decided the case of Erikson v. Rockland Fire Department, I-12-100, (January 24, 2013), it found that c. 31 sec 58 continued to require civil service firefighters to reside within 10 miles of the city or town where he/she was employed. That case did not address the conflict with c. 41 sec 99A and was a Civil Service Commission decision, not a judicial determination. Furthermore, when the Appeals Court in City of Lynn vs. Lynn Police Association, 12-P-1122 (March 27, 2013), addressed the applicability of c. 41 sec 99A to the City of Lynn police officers, it affirmed that the 15 mile limit of c. 41 sec 99A applied and that under the provisions of c. 41 sec 99A the only way that a city or town can impose a more stringent residency requirement is through collective bargaining. Therefore the Appeals Court made it clear that the 15 mile limit of c. 41 sec 99A governed even though Lynn is a civil service community. The Court made no reference to c. 31 sec 58.
Therefore, as a result of this amendment to c. 31 sec 58, public safety unions can now bargain over the appropriate distance for a residency obligation. At a minimum the bargaining can move the 10 mile requirement to 15 miles so as to reconcile c. 41 sec 99A with c.31 sec 58. However, since this amendment is the Legislature’s most recent action concerning residency for civil service police and firefighters, under the principles of the Mulrain case, it certainly can be argued that municipal employers and public safety unions can bargain for a distance in excess of the 15 mile limit since the new amendment does not put any cap on the appropriate distance for a residency requirement and merely says that the distance may be increased under a collective bargaining agreement negotiated under chapter 150E.
In addition, there continue to be bills being considered by the Legislature to further address residency requirements for police and firefighters. Some would increase the mile limitation and others would limit the residency requirement to a period of years and still others would preclude requiring residency within a city or town. We will continue to monitor the progress of these other bills and inform you if anything else changes. Stay tuned..
After a nearly 20 year battle between the Lynn Police Association and the City of Lynn, the Appeals Court has finally confirmed that State Law, MGL c. 41 sec 99A, concerning the residency of police officers and fire fighters controls any residency obligations for police officers or firefighters and that a City Charter does not have any relevance or control.
In this case, the Appeals Court ruled that the Decision issued by the Superior Court in 2000 between the Lynn Police Association and the City of Lynn is controlling. That Decision determined that MGL c. 41 sec 99A establishes residency as a term or condition of the employment of police officers and firefighters in Massachusetts and imposes a 15 mile statutory limit. The only way that a City or Town can impose a more stringent residency requirement is through collective bargaining. As Judge Grasso explained “the court finds an explicit indication of the legislature’s intent to tie local residency requirements to the collective bargaining process.”
Anticipating that the Appeals Court would agree with the Union and require bargaining over any residency requirement, the Union and the City bargained last year and reached agreement for the residency requirement for police officers in Lynn. Officers must now maintain residency in Lynn for the first 10 years of their employment.
This Decision by the Appeals Court confirms that any municipal employer who wants to require residency for police officers or firefighters more stringent than the 15 mile requirement of MGL c. 41 sec 99A must bargain with the Union.
The case is City of Lynn vs. Lynn Police Association, 12-P-1122, issued March 27, 2013 pursuant to Rule 1:28. The Union was represented by Sandulli Grace Attorneys Susan F. Horwitz and Jennifer Rubin. Attorney Horwitz also represented the Union in the original Superior Court case in 2000.
By decision dated February 5, 2013, the Massachusetts Department of Labor Relations found that the City of Peabody violated Section 10(a)(5) and 10(a)(1) of the Law by failing to bargain in good faith when it assigned junior Sergeants rather than senior Sergeants to vacant Watch Commander (also called OIC: Officer-In-Charge) shifts without giving the Union prior notice and an opportunity to bargain to resolution or impasse.
The Peabody Police Department has three daily shifts: morning, day, and evening. The Police Department requires that each shift have a Watch Commander or Officer-in-Charge. When a Lieutenant is in charge on a shift, the Lieutenant is called the Watch Commander. When a Lieutenant is absent from a shift and there are two sergeants on that shift, the Sergeant in charge is called the OIC. For at least 20 years prior to July 5, 2009, when there was no Lieutenant on duty for a particular shift and there were two or more Sergeants on that shift, the senior Sergeant assumed the duties of Watch Commander (or OIC), making the senior Sergeant eligible for out of grade pay at the OIC level. The Union put on two Patrol Officers and a Sergeant to testify regarding this consistent practice. Although the Chief testified that he was “not aware of any instances of only senior sergeants always getting OIC assignments,” the hearing officer credited the Union’s witnesses, stating that they testified consistently and unequivocally in support of the long-standing practice. The hearing officer further stated that the City failed to present additional evidence rebutting that point other than the Chief’s testimony. As a result, the hearing officer found that the Chief authorized the assignment of junior Sergeants to the OIC position with OIC pay in violation of the Law.
The City made three arguments: (1) that there was no past practice, (2) that the Union waived its right to bargain under the managements rights clause, and (3) that the City had the right to assign who the OIC was pursuant to statute and ordinance. The hearing officer rejected all three arguments, finding that (1) there has been a past practice, crediting the Union’s witnesses over the Chief’s testimony, (2) that the Union did not waive its right to bargain with the general management rights clause that was in the collective bargaining agreement, and (3) that the City’s reliance on statute and ordinance was wrong because the Chief’s decision to assign junior Sergeants rather than senior Sergeants to the OIC position was outside the scope of the City’s core managerial prerogative.
The hearing officer ordered the City to cease and desist from changing the past practice of assigning senior Sergeants to the OIC position and to make whole all affected employees that suffered economic losses as a result of the City’s failure to adhere to the parties’ past practice of assigning senior Sergeants to the OIC position. This is an important decision and reminder to all Chiefs and Police Departments that past practice must be adhered to and cannot be unilaterally changed without first bargaining in good faith with the union.
Sandulli Grace attorney Bryan Decker was featured in a WBUR-FM radio broadcast regarding Massachusetts’ new medical marijuana law on Tuesday morning, February 19, 2013. The report by WBUR radio journalist Martha Bebinger, explores various implications of the new law, including its effects on police officers, who are bound by federal laws making marijuana an illegal substance, and their families. “The federal law is the federal law,” Decker told Bebinger. “In Massachusetts, it is a job condition for police officers to carry a firearm. I think that is clear.” A transcription of the story can be found here: http://www.wbur.org/2013/02/19/marijuana-laws.
