It started with a very clear-cut case of police intimidation against a man trying to video record Boston police conducting an investigation in broad daylight last August, in which an overbearing detective pushed and shoved the videographer away from the scene, threatening to arrest him on felony battery on a police officer when the video shows he was the one committing battery on the videographer.
I was one of the first sites to post the video, which ended up going viral, setting the stage for what would become an intense campaign of police retaliation against Photography is Not a Crime – perhaps because I had posted the main number to the Boston Police Department at the bottom of the story, which allowed readers to contact them to show them we are paying attention.
Call floods to government agencies is a common tactic we have used here on PINAC after videos have emerged showing complete abuse of authority against citizens exercising their First Amendment rights to record.
As annoying as it may be for public officials, we have a right to petition the government for redress of grievances without fear of retaliation.
At least in theory.
The day after I posted the video, PINAC crew member Taylor Hardy, a 25-year-old journalism student from Miami, called a Boston police public information officer for comment on the incident involving the videographer, Jay Kelly, recording the conversation on his iPad.
Boston police spokeswoman Angelene Richardson said she had not seen the video of the overbearing detective, so the conversation was useless to me, and I didn’t bother posting it on PINAC, even though Hardy had posted a portion of their conversation on his Youtube channel.
And that led to Richardson discovering the video and filing a complaint against Hardy for illegal wiretapping, claiming he had never informed her he was recording, a felony charge that can land him in prison for five years.
The only problem for them is that their only piece of evidence is a portion of a conversation Hardy had posted online, which he had since removed. He didn’t even include her name in the video, which had received less than 100 views when it came across Detective Nick Moore’s desk last month.
And the burden of proof lies on them, so unless they recorded Hardy’s entire conversation, which would make the whole violation of a two-party consent law argument moot, they will be hard-pressed to prove he didn’t advise her he was recording upon her answering the phone, which he, if fact, did, as you can see from our Facebook conversation below from August 14.
So again, it becomes another clear-cut case of police intimidation against citizens who are simply trying to hold them accountable, just as Jay Kelly was trying to do in the above video when he was pushed and shoved away from the crime scene while being threatened with felony arrest.
When Hardy informed me had received the notice of complaint from the Boston Police Department, ordering him to attend a hearing in front of a magistrate judge, I wrote about it on this site, encouraging readers to call Richardson and ask her to drop the complaint.
After all, as a media spokeswoman, she should understand that all conversations with the media, unless other stated, are on the record. In fact, she should insist reporters record her comments to ensure accuracy.
That led to numerous PINAC readers calling Richardson, which obviously is something that unsettles this public information officer, suggesting that perhaps she is in the wrong line of work.
And that led to Detective Moore filing a criminal complaint against me for witness intimidation, which I received Friday and is posted below, claiming that I caused Richardson all kinds of pain and grief because I posted her publicly available work contact info on my blog.
He also threatened to charge any readers who called her, making me think that perhaps the Boston Police Department is recording all incoming calls because how else would they gather the evidence to charge my readers for witness intimidation?
So again, we are treated to another clear-cut example of police intimidation, an indicator that they would stop at nothing to retaliate against the website that exposed one of their detectives intimidating a citizen from video recording him in public.
And this is rather telling considering the Boston Police Department dished out a $170,000 settlement to Simon Glik last year, a Boston attorney who had been arrested on wiretapping charges after he video recorded cops making an arrest in a public park.
It was the landmark Glik vs Boston decision in 2011, which led to the settlement, that firmly established that citizens, especially in Boston, have the right to record police.
In fact, Boston police proclaimed in January 2012 that the arresting officers used “unreasonable judgement” when arresting Glik back in 2007, a complete 180 degree turn from their previous stance that police were just doing their jobs when they arrested Glik for recording them in public.
So it’s not surprising that they would get upset when another one of their officers used unreasonable judgement while trying to intimidate a citizen from video recording him in public, one who apparently didn’t receive the Glik memo, or more likely, decided to ignore it altogether that day.
And it’s not surprising they would get even more upset when I would publicize that video for the world to see, just as they were putting the embarrassment of Glik behind them – especially when I published the main phone number to the Boston Police Department at the bottom of that story, which resulted in numerous calls.
So we shouldn’t be surprised that they would come after Hardy with the same wiretapping charge they arrested Glik on back in 2007, even though Hardy did tell her he was recording as well as the fact that she should expect to be recorded anyway as media spokeswoman.
The video, which did not contain her name anywhere, was viewed by less than 100 times when Detective Moore began investigating.
So for police to claim she was distressed about the video is highly dubious.
While it’s true the two cases are different, considering Hardy was in Miami when he recorded Richardson through the telephone as opposed to openly video recording during a press conference, there is no doubt she was acting in the public capacity as a public official, disseminating information of public interest.
Furthermore, a 1991 case in which reporters from a Pennsylvania newspaper recorded a telephone interview with a murder suspect in Virginia, publishing the transcript of the interview in their newspaper, was dismissed when the district attorney determined the suspect did not have an expectation of privacy considering he was talking to newspaper reporters who made it clear his comments were on the record.
So hopefully, the district attorney who oversees this case will determine the same, considering it is Richardson’s job to talk to reporters who intend to publish her comments.
The Massachusetts wiretapping statute makes it a felony to secretly record anybody, even if they do not have an expectation of privacy, but the Glik decision gave a rather broad description of what constitutes “secretly.”
It has also made clear that “actual knowledge” can be proven by “objective manifestations of knowledge” to “avoid the problems involved in speculating as to the [subject's] subjective state of mind.” Id. at 340-41. Moreover, the court has noted that “actual knowledge” does not require that there be any explicit acknowledgment of or reference to the fact of the recording. Id. at 340 (“[T]he person recording the conversation [need not] confirm the [subject's] apparent awareness by acknowledging the fact of the intercepting device.”).
The above passage is in reference to citizens who record police in public by holding a phone in their hands without informing them they are being recorded, instead of hiding the phone in their pocket and giving no indicator they are recording.
So even if Hardy did not inform Richardson that he was recording, the fact that she is a police public information officer who was talking to a member of the media about a matter of public interest, knowing her statements would most likely be disseminated to the public, should be enough to meet the “objective manifestations of knowledge” burden spelled out in the above passage.
The other question that needs to be answered is would the Massachusetts wiretapping law even apply to Hardy, who was in Miami when he recorded her?
And for that matter, would the Massachusetts witness intimidation law apply to me when I was also in Miami at the time I published her work contact info, which is available on the police department’s own website?
Wouldn’t that raise the stakes to the federal level, where the laws are written a little differently?
And if they take witness intimidation so seriously, why wouldn’t they go after the detective in the video who was clearly intimidating a witness from observing and recording a criminal investigation?
We know the answer to that last question. They would never go after one of their own for breaking the law.
Just last week, Boston Mayor Thomas Menino named a popular police commander named William Evans as interim commissioner of the department until they permanently fill the position.
The Boston Globe describes Evans as a man who prefers to win citizens over through respect rather than intimidation, a trait that has obviously not trickled down through the rest of the department.
Menino also praised Evans for his role in the 70-day occupation of Dewey Square by Occupy Boston in 2011.
Rail-thin and affable, Evans won over many of the protestors, giving out his cellphone number and eventually getting theirs.
“Our motto is to kill them with kindness,” he said at the time. “You can talk your way out of anything. We don’t need sticks out. We don’t need helmets on.”
The department’s hands-off strategy was cited as a factor in the relatively peaceful way police later dispersed Occupy protestors.
As it is, Hardy and I are scheduled to attend a hearing this Thursday in front of a Boston magistrate judge, most likely Lawrence McCormick, who will determine if there is enough probable cause to proceed with an indictment.
Knowing how the justice system will almost always side with police, we can pretty much bet this will happen, meaning Hardy and I have to prepare for an epic legal battle that is most likely going to cost thousands of dollars in legal fees. We’ve been talking to various attorneys, including Simon Glik, and they all advise to pretty much wait until the indictment goes through (please help us by donating).
All because we were trying to hold police accountable.
Again, this is nothing but a clear-cut case of police intimidation.
At the risk of getting slammed with more felony charges, I am posting the publicly available email and phone number to Mayor Thomas Menino ( 617.635.4500) as well as the general line to the Boston Police Department ( 617-343-4633) where you can ask to be directed to Commissioner Evans to see if they would like to weigh in on the issue.
Send stories, tips and videos to Carlos Miller.