Massachusetts Legal Developments Blog

Yesterday the President gave a tremendously moving speech about the officers who gave their lives defending the freedom of people to protest the police in Dallas.  Much has been said about the irony that the attack on police came in Dallas, where the police department had put serious efforts into becoming a better less-militarized, more community-oriented police force.

Today, members of the Boston Police demonstrated the kind of restraint that we should all commend.  According to the BPD Twitter post:

• [Boston Police Officers] observed a male with a gun in his hand, pointing the firearm across the street. The male then began running toward the officers while attempting to conceal the firearm in his waistband. The officers drew their department issued firearms and gave the male lawful orders to drop the firearm and put his hands up. After taking several more steps between two parked vehicles, the male placed the firearm on the hood of the vehicle and complied with officers’ orders. The male was placed into custody without further incident.

This could have gone down differently, but becuase the police in this case didn't immediately assume the worst about the person in front of them, everyone ended the day alive.

I can add that I peronally know of a case where a young kid literally pulled out a gun and pointed it at a Boston Police Officer, and the officer talked him down, instead of pulling out his gun and ending the kid's life. 

I don't have the numbers, but we all surely hope that cases like this outnumber cases like those of Alton Sterling and Philando Castile.  The officers in this case were publicly commended by the cheif of police, as well they should have been.

• "The officers and detectives at this incident were faced with an intense scene, but thanks to their training and quick thinking, the incident was quickly and professionally handled"

In this article posted on the BPD twitter feed, the police allege that on July 1, 2016, the following took place:

• At about 6:31 PM on Friday, July 1, 2016, members of the Youth Violence Strike Force were on patrol when they observed three males milling about in the area of McGreevey and Turquoise Ways. Upon seeing the approaching officers, the individuals turned away and attempted to vacate the area. In light of the apprehensive behavior, officers approached two of the individuals to better understand their actions. While talking to the individuals, officers noted that one of the individuals appeared to be extremely nervous given the fact that he was physically shaking and sweating profusely. When asked to provide his name, the individual failed to respond and refused to make eye contact with the officers. At this time, officers observed an L-shaped bulge, consistent with that of a firearm, in the area of the suspect’s right pocket. When officers attempted to frisk the suspect, the suspect pushed the officers and attempted to flee the scene. After a lengthy physical struggle, officers were able to subdue the suspect and gain possession of the firearm (see photo). While taking the suspect into custody, a large crowd began to yell, heckle and verbally disparage the officers. Back at the booking desk, the suspect asked: “Why did you rip my pants … you already got my gun.” Officers arrested [Defendant], 18, of Boston and charged him with the Unlawful Possession of a Firearm, Unlawful Possession of Ammunition and Carrying a Loaded Firearm on a Public Way.

When you read police narratives, the first thing you have to do is read between the lines to get the real story.  So when the article says that the officers "approached two of the individuals to better understand their actions," after the people they were after "attempted to [leave]," what do you think they mean?   Do you think that when these guys saw the cops coming for them and "attempt[ed] to [leave]," they slowly changed direction and wandered off into the sunset, or do you think they took off running?  Similarly, do you think that when the police say that they "approached" these guys, what they mean is that they sauntered up to them and started taking about the weather? Or do you think the police saw them take off, figured the chase was on, ran them down and tackled them?  Along those lines, does the fact that these guys "attempted" to leave -- apparently unsuccessfully -- mean anything to you?  There was a chase and a struggle at one point -- even the police agree with that.  What do you think the chances are that the police and the individuals arrested in this case would disagree about the sequence of events?

The second thing you have to do when reading a police report is try to strip out the irrelevant extravegances and boil it down to what actually happened. In this case that means leaving out the business about how the guy the police approached was "sweating profusely" (like a cartoon character caught in a lie) and how he supposedly "refused to make eye contact." Neither one of these things means anything -- they are just the kind of subjective and irrelevant details officers include to try to make the fact that they had a hunch something was up sound like less of a guess.  Without that kind of language, what you are left with is a guy who appears nervous after he has been "approached" on the street for no apparent reason, told to provide his name and submit to a pat frisk. 

Last, once you strip away the allegations that sound like they support what the officer did, but in fact add nothing, you have to see whether what you are left with means anything in the law.  Look back at what we are left with here and remember that a person is not required to identify himself, or submit to a pat-frisk, unless the police have reasonable suspision to stop him.  Add to that the fact that that the Supreme Judicial Court has held that "when officer has no basis for initiating stop, [a person]'s flight in response to show of authority cannot justify stop," and the only conclusion you can possibly reach is that the officers had no reason to stop this person, no reason to ask his name or ask to search him, and everything that came afterwards ought to be suppressed by a judge.

Oh, and by the way, this gun does not make "an L-shaped bulge . . . [in someone's] right pocket."

According to BPD, on July 2nd, 2016, police attention was drawn to a couple guys sitting in a lounge in the communal area of their condominium.  They saw someone come out of an adjoining apartment with some marijuana, which although not legal, was not a criminal offense.  They then decided to search him, and eventually found a firearm.

Of course, the BPD would tell the story a little differently:

• At about 9:10 PM on Saturday July 2, 2016, officers assigned to the Youth Violence Strike Force made an onsite firearm arrest in the area of 934 Parker Street in Jamaica Plain. The officers were on directed patrol inside the Bromley Heath Housing Development in response to numerous complaints from the community regarding recent gang and drug related activities in the area. When the officers observed a group loitering in a common area of one of the buildings, they approached to speak with them. As the officers were speaking to the group, a person who was known to them, Andre Raper, 23, of Jamaica Plain, walked out of an apartment with a small bag of marijuana in his hand which he quickly put in his pocket upon seeing the officers. It was later determined that the suspect was about to sell drugs to one of the men in the hallway but the presence of the officers interrupted the transaction. Officers performed a pat frisk of the suspect and discovered a one ounce bag of marijuana and several small bags packaged for sale. The suspect was then placed in custody without incident.

It's the same story, but one version makes it sound like some people minding their business in their own place of residence, without committing a crime, were bothered by the police for an exceedingly minor infraction, where the BPD version makes it sound like they just broke up Al Capone couting the money he heisted from a bank.

The fact that they later found a gun has nothing to do with their right to conduct a search and seizue at the moment when they decided to search the person holding the marijuana (which it was LATER determined he intended to sell to someone).  The point is, the police decied to serch this guy in a hallway of the place where he lived because they saw some other occupants sitting around doing nothing wrong. And what they saw this guy doing -- holding less than an ounce of marijuana -- wasn't even a crime.

The people who live in this city, and who are not privileged enough to live in the areas BPD do not consider "high crime" areas (a perfectly subjective designation) are entitled to the same rights as anyone else, including the right to be free from a search of their persons and effects in the absence of evidence of an actual crime (rather than a civil infraction of possessing marijuana).

The police had no right to do anything but write this guy a ticket and take his marijuana away. The rest of the case should be tossed.