Image by Elise Cameron | Article by Andrew Quemere
My friend Adam Mueller, who goes by the name Ademo Freeman, recently closed a chapter of his life after reaching a legal settlement with the city of Greenfield, Mass. The story goes all the way back to July 1, 2010, when Freeman was arrested with his comrade Pete Eyre for the non-crime of video recording police officers and jail workers.
Freeman, the founder the police accountability group Cop Block, and Eyre had driven down from New Hampshire to bail some friends out of the Franklin County House of Corrections. The two, who are well-known in libertarian and anarchist circles for their rabble-rousing and documentary projects, had brought along their cameras to document the trip.
Before long though, they found themselves arrested for refusing to either shut their cameras off or leave the jail. After they were arrested, the cops entered Eyre’s RV without a warrant, trashed and ransacked the vehicle,, and then impounded it. Freeman and Eyre were charged with trespassing, resisting arrest, and wiretapping, and Eyre also faced additional charges related to the search.
The camera can be a powerful tool for accountability; unlike cops and witnesses, it does not lie or misremember. As such, many cops resent being on camera, and have resorted to using intimidation tactics, violence, and bogus arrests to stop cop watchers. Thankfully, courts have typically sided against the cops in these types of cases.
Eyre and Freeman aren’t alone in fighting for the right to record the police. Many people have fought hard so that the rest of us can immortalize potentially dangerous and volatile encounters with cops. It would would take more than one article to tell all of their stories, but here are a few of them…
Eyre and Freeman are some of the most hardcore activists I’ve met. They have been arrested so many times I’ve lost count, including on a number of occasions for recording cops. They’re probably best known for Cop Block, which Freeman founded in 2010 as a place to, among other things, encourage people to stand up for their rights, record the police, share stories of police misconduct, and advocate for the end of laws against victimless crimes like drug possession.
Prior to that, Eyre, Freeman, and another activist named Jason Talley toured the country in the aforementioned RV, which they dubbed MARV—the Mobile Authority Resistance Vehicle—and painted black and yellow (in reference to the philosophy of “voluntaryism”) for a project called Motorhome Diaries. The team interviewed libertarian authors and activists and visited historical locations to shoot videos. When Eyre and Freeman were arrested in Greenfield, they were in the middle of planning a similar outing called Liberty on Tour.
Following the Greenfield incident, the duo ditched their court-appointed attorneys and represented themselves pro se during a joint trial, in which Freeman made a fool out of the arresting officer, Sergeant Todd M. Dodge. Even though it’s the reason they were arrested, the main issue during the trial was actually not the fact that Eyre and Freeman had been recording Dodge and several jail employees with their cameras. That’s because video recording the police and other public officials isn’t actually against the law. The Massachusetts wiretapping law, which is often misleadingly referred to as requiring “two-party consent,” only makes it illegal to secretly audio-record another person.
Shortly before he and Eyre were arrested, Freeman used his cellphone to record audio of what was happening. The recording was posted online and the police found out about it while the two were in jail, seizing on it as a reason for the wiretapping charges. The prosecutor conceded that only Freeman had done the recording, but argued that Eyre was complicit in a “joint venture” since he caused a “distraction” by talking to Dodge.
During the trial, Freeman used video from the jail’s surveillance system to show that he had been holding his phone out in the open. He also got Dodge to admit that he looked at him while he was holding the phone out. The jury saw right through the farce, and both Eyre and Freeman were acquitted of all charges. Naturally, they got the whole ordeal on video.
“I wish more people filmed the police,” Freeman told me earlier this year, after reaching a settlement with Greenfield. He received $32,500 from the city’s insurance company, though the city didn’t admit to any wrongdoing. He added, “I’m happy my case is over and I look forward to expanding the CopBlock Network.”
“I think it’s because it costs less to pay than it costs to litigate,” Greenfield Mayor William Martin said in explaining the outcome. “It’s not the intent of Greenfield to have any employees that would be infringing on the rights of others. Obviously having the police department be accused of that is counterproductive.” He added: “The police department knows they can be filmed… You’d have to get the specific policy from the chief.”
I tried to do just that, only to be told by Greenfield police chief Robert H. Haigh, “With all due respect, I was not the chief of police for the City of Greenfield during this time period, and do not feel it appropriate to comment.” He referred me back to the mayor. Not satisfied with that response, I sent a public records request to Haigh, which he is obligated by state law to answer. Haigh claimed the department had no policies, memos, or training documents regarding the public’s right to record. His assessment: “Greenfield police function under [state law], and thus there is no policy.”
Haigh also sent me the records for an internal affairs investigation of Todd Dodge that was opened in response to emails from Eyre shortly after he and Freeman were arrested. The records show that the investigation was never completed and is still listed as “pending,” meaning Dodge never faced any disciplinary action. Haigh wasn’t interested in explaining why, after nearly five years, the investigation still hadn’t been finished. “What was done four years ago was with an entirely different staff,” he said. “I have no comment on this investigation, and I consider it closed.”
Image from Melvin Jones arrest video via MassLive
In 2009, Springfield police officer Jeffrey Asher was caught on video beating a passenger with a flashlight during a traffic stop. The attack was so savage that the victim, Melvin Jones III, was left with a broken finger, fractured bones in his face, and broken teeth, and in addition was partially blinded in one eye.
Jones later received a $575,000 settlement from the city. Asher, who already had a long history of police brutality allegations being filed against him at the time of the beating, was fired, convicted of assault and battery and assault with a dangerous weapon, and sentenced to 18 months in jail (although he only served 8 months and is now appealing his conviction). Three other cops who were complicit in the beating were briefly suspended from their jobs without pay and ordered to undergo more training.
Despite the rather lenient punishment, the cops probably would have gotten off altogether if Tyrisha Greene hadn’t recorded the beating through a window in her Springfield home. One of the cops suspended over the Jones incident even took Greene to court, accusing her of wiretapping him, but a clerk magistrate refused to issue a criminal complaint against her. A precedent came soon after, when the federal First Circuit Court of Appeals ruled that there is a “constitutionally protected right to videotape police carrying out their duties in public.”
For this landmark decision, Bay Staters can thank attorney Simon Glik, who was arrested in 2007 for using his phone to record what he alleged was police brutality on Boston Common. The city spent years fighting Glik’s lawsuit, but he finally received a $170,000 settlement in 2012. Maury Paulino, another man who was arrested for recording Boston police, received a settlement of $33,000 shortly after. Prior to Glik’s lawsuit though, the Boston Police Department permitted cops to arrest people for recording them without consent—even though such policy is clearly at odds with the law.
As noted above, state law only criminalizes secret audio recording. In a 2001 case, the Massachusetts Supreme Judicial Court upheld the wiretapping conviction of a 28-year-old musician named Michael Hyde who used a hidden tape recorder during a traffic stop in Abington. That case set the disturbing precedent that people can be branded felons for recording cops. However, the court was painstakingly clear that Hyde was convicted because of his secrecy, not because he made his recording without consent.
After being pulled over, Hyde and his friend were ordered out of Hyde’s white Porsche. Police rummaged through the vehicle and asked if the men were carrying any “blow.” Tempers flared on both sides, with Hyde calling the traffic stop a “bunch of bullshit” and one cop calling him an “asshole.” Eventually, police let the pair leave without so much as a citation, but six days later Hyde brought his recording to the Abington police station to file a complaint, and was subsequently charged, tried, and convicted of wiretapping and sentenced to probation.
The Supreme Judicial Court wrote in their majority ruling that Hyde “was not prosecuted for making the recording; he was prosecuted for doing so secretly … 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].”
That unambiguous ruling apparently failed to reach Boston, where it took Glik’s lawsuit for the police department to change its policy and acknowledge the right to record. The department even produced a cheesey training video in which cops play the phone-wielding curmudgeons, one of whom records a domestic dispute and tells a uniformed officer, “This is gonna look great on YouTube.”
ON THE RECORD
The Glik decision was widely publicized by news media, but it still wasn’t enough to get the message across to cops that people can record them. Even in Boston, there have been a number of cases in recent years of cops harassing people who point cameras their way. A few examples:
- Dorchester resident and activist Jay Kelly was shoved around and threatened with arrest by a police sergeant when he recorded cops detaining young men on the street in 2013.
- Also in 2013, Northeastern student Tyler Welsh was arrested and charged with wiretapping for recording police near Fenway on the night the Red Sox won the World Series.
- In 2014, Max Bickford had his phone snatched away by a Boston cop who was mad about being recorded. Bickford said cops handcuffed him, wiped blood on him, and smashed his phone on the ground before he was released.
Outside of the Hub, there’s the example of George Thompson, who was arrested last year by Fall River police officer Thomas Barboza. Thompson said he started recording the cop because he was talking loudly on his cellphone and cursing up a storm when he was supposed to be working a detail. Barboza stormed onto Thompson’s porch, allegedly called him a “fucking welfare bum,” and arrested him.
Several years before that incident, Barboza signed a training bulletin advising Fall River police officers “that the Massachusetts Wiretapping Statute only applies to audio recordings that are captured secretly.” Barboza appears to have recalled this training, and in his arrest report claimed Thompson “was secretly audio taping” him—that despite Barboza also writing that he saw Thompson holding his phone, and that Thompson said he was recording.
While Thompson’s phone was in police custody, the memory on the device was wiped, permanently destroying his video. The wiretapping and resisting arrest charges against him were eventually dropped, but police threatened felony charges against Thompson for wiping the phone, which they claimed he accessed through the cloud in order to destroy the video. However, an examination of his phone by a forensics company hired by the department revealed that it had been wiped by one of their own employees, who entered 10 incorrect passwords while attempting to gain access to the device.
Before Thompson’s charges were dropped, Fall River Police Chief Dan Racine told WPRI that he would fire any member of the department if they were found to have destroyed the video. But when that turned out to be the case, Racine decided that “the action was not malicious” and went back on his word. He has yet to publicly say who wiped the phone or why they were trying to access it.
Thompson is now suing Barboza with the help of David Milton, one of the attorneys who, along with his partner Howard Friedman and American Civil Liberties Union of Massachusetts attorney Sarah Wunsch, represented Simon Glik in his case against Boston. In a court filing, the city of Fall River denied that Thompson’s rights were violated and said that any injuries he incurred during his arrest, when he was shoved to the ground by Barboza, are his own fault. Gary P. Howayeck, the attorney representing the city in the case, declined to comment for this story.
Elsewhere, Milton is also representing UMass Amherst student Thomas Donovan in a similar, recently filed lawsuit against the five Amherst officers who arrested him last year. Donovan had stopped to record cops as they arrested another person during the “Blarney Blowout,” the raucous St. Patrick’s Day pre-game party that made headlines when riot police with tear gas and pepper balls made dozens of arrests.
The police pepper-sprayed Donovan, knocked his phone out of his hand, took him to the ground, and slapped handcuffs on him. One of the cops stomped on Donovan’s phone, which had landed with its camera lens facing up; the cop didn’t finish the job though, and the video survived.
Amherst Sergeant Jesus Arocho, one of the arresting officers, claimed that Donovan refused to leave the area and “began to close the distance between himself and the offices [sic].” But the video told a different story, proving the police report to be a work of fiction, and showing that Donovan was standing in place on the other side of a fence when cops attacked him without provocation.
Though Donovan was charged with disorderly conduct and failure to disperse, and was initially suspended for a semester as a result, the suspension never took effect; the university found that he did nothing wrong. The criminal case against Donovan was also dropped.
Amherst police chief Scott P. Livingstone did not respond to a request for comment on the lawsuit, so I contacted the Northwestern District Attorney’s Office to ask if they are weighing the possibility of criminal charges against the cops. Communications director Mary Carey said that she “cannot comment with pending litigation.” When I pointed out it was the cops being sued, not the district attorney’s office, she simply said, “The DA has no comment.”
NOT A CRIME
In a press release about Donovan’s situation, his attorney Milton noted that the lawsuit “shows the futility of police efforts to squash the public’s exercise of the right to record police.” Though many cops may hate the right to record, there’s little doubt that it’s here to stay. Nevertheless, there are a number of issues that still need to be hashed out.
“Police departments must develop strong, clear, and detailed policies to guide police officers’ responses to being videotaped,” Milton says. “Police supervisors must closely scrutinize arrests where officers allege that the person recording them was ‘disorderly,’ or ‘interfering with police activity,’ or ‘refusing to disperse,’ which are frequently bogus and pretextual charges that officers use to unlawfully retaliate against people who record them. Police officers should assume they are being recorded whenever they are on duty—and get used to it.”
Lawsuits have played some role in forcing departments to change policies, but arguably have not done enough. As Freeman blogged after receiving his settlement from Greenfield: “Was justice served? No, of course not, the settlement doesn’t make what happened to me right or even whole for that matter. Those involved in this from the other end barely faced any repercussion from their actions either. Probably just the headache Pete and I gave them for a year at the most.”
The lack of accountability for Mass cops who make these bogus arrests is the norm. I’ve followed these kinds of cases for years, and I have yet to find that a cop was fired as a result of arresting someone for recording. I’ve also found no examples of cops being prosecuted for suppressing the right to record, which is likely due to the cozy relationship between police departments and district attorneys, who work together on a daily basis.
Carlos Miller, who runs the news site Photography is Not a Crime, says he’s unsure of the solution. A resident of Miami, Miller has firsthand experience dealing with abusive cops: In 2007, he was roughed up and arrested by authorities while on a news assignment. He launched PINAC to document his case, but soon after began writing about similar stories all over the country. In the process, he has exposed how pervasive the problem is.
Miller says that police should face disciplinary action, but many departments just don’t seem to care about accountability. “The only thing we can do is continue recording and at least exposing them and judge them in the court of public opinion,” he added.
Miller has been arrested three times for photographing cops, and has beaten the charges every time; he even got a settlement after he was attacked by Miami-Dade Metrorail security guards for taking pictures. Although Miller lives in Florida he managed to engage in a long-distance run-in with the Boston Police Department in 2013 after one of his crew members recorded a phone call with a BPD spokesperson. Boston police accused one Taylor Hardy of wiretapping, and doubled down by accusing Miller of witness intimidation after he posted the department’s media relations contact information on PINAC. The police eventually dropped the matter after Miller hired an attorney to mediate.
Unfortunately, the way it is now, taxpayers are on the hook when cops pull these stunts, and it’s costing them millions. “Police departments themselves, they’re not really paying anything,” Miller says. “The police officers themselves are certainly not paying anything, and they’re not getting disciplined for it. They know they can get away with it.”
George Thompson, the man arrested in Fall River, says that police should be required to carry their own liability insurance to cover legal settlements and judgments. Carlos Miller is also a fan of the idea, but thinks there would be backlash. “The court system is very, very biased in favor of the police. They want cops to be able to do their job without fear of getting sued,” he says.
The other loose end: It’s still unclear whether secretly recording the police, like Michael Hyde did in Abington, is really illegal. The wiretapping law that he was convicted under remains on the books, though in light of Glik it may no longer withstand judicial scrutiny.
“I believe that the Glik decision made clear that recording police officers in the course of their duty is a fundamental First Amendment right,” Milton says. “Nothing in the court’s very strongly worded opinion affirming that constitutional right says or even suggests that that right depends on whether or not the recording is made secretly.
On the other hand, Carl Williams, an attorney with the American Civil Liberties Union of Massachusetts, has said the Glik case left an ambiguous message. “It’s unclear what [the] courts would ultimately do,” he told me. In any case, with cops attacking people, deleting videos, and smashing phones, it’s likely many people might be hesitant to openly record them.
Last year, Karen Dziewit was arrested by Springfield police for disorderly conduct and carrying an open container of alcohol during an alleged drunken argument. Police said that when they took her in, she told them she had secretly recording them with a phone in her purse. After locating the device, they tacked on a wiretapping charge.
Prosecutors dropped the wiretapping charge against Dziewit, but unless the law is changed, the next person who gets caught secretly recording the cops could be less fortunate. When that happens, and it probably will, that person will have an opportunity to challenge the law, and hopefully to establish once and for all that people have the absolute right to record the police in the commonwealth.
Article by Andrew Quemere. You can read more of Andrew’s work on the Bay State Examiner.
Andrew Quemere has been making public records requests in Massachusetts for more than a decade. He writes The Mass. Dump Dispatch, a newsletter about public records. Subscribe to read about the latest developments in government transparency. Follow him on Twitter @andrewqmr.