PAX Centurion - April / June 2016

www.bppa.org PAX CENTURION • April-May-June 2016 • Page 47 Legal Thoughts: Kenneth H. Anderson, Esq. Byrne & Anderson, L.L.P., Counsel to Members of the Boston Police Patrolmen’s Association Preparing for a safe summer I n a not-so-clever attempt at humor, this firm recently had the motto “Here to DigYou Out of a Hole!” as a caption on a sign sponsoring the BPPA golf tournament. Someone sent me a picture of this sign today, which got me thinking that rather than digging people out of holes, it is best if no one falls into the hole to begin with. In the summertime, we put on sunscreen to prevent sunburns and the risk of future skin cancer. On summer evenings, people put on bug spray to prevent mosquito bites and possible diseases they can bring later in the summer. We take precautions to keep ourselves safe. An ounce of prevention is worth a pound of cure. Although none of these below suggestions are novel or creative, if heeded they may help keep you out of a hole. I recently represented two police officers from Holden Massachusetts at an interview with members of the New HampshireAttorney General’s Office. As you all likely saw, on May 11, 2016, a police chase that originated in Holden, MA ended abruptly in Nashua, NH, with the arrest of the suspect being filmed live on several local television new channels as the network helicopters hovered above. If for some reason you have not seen this “arrest,” go Google it now. I won’t share my personal views of what happened during this arrest in writing, although I will tell you that the Colonel of the New Hampshire State Police said “the unnecessary, unjustified use of force will not be tolerated by this agency” after placing the New Hampshire trooper in the video on leave. I will also quote from a jury instruction recently given by a federal judge in an excessive force trial, where the judge instructed in part, that “an objectively reasonable officer may not, however, use more force than is reasonably necessary to accomplish these purposes, nor may he use force to punish, retaliate or deter future misconduct . . ..” The Holden officers who I represented at these interviews with the New HampshireAttorney General had been involved in a chase lasting over an hour that flowed through countless towns before ultimately ending up in New Hampshire. With all the adrenaline that such a pursuit creates, these officers stated they clearly knew that there were helicopters above them and that everything they did was being videotaped. Remarkably, for a department that only has three patrol officers working on their entire day shift, they advised me that almost every day at roll call, they are reminded that “video is everywhere.” If your duty supervisor does not give you this admonition at roll call, turn to your brother and sister officers next to you after roll call and warn them that “video is everywhere.” I recently had a very miserable experience trying to resolve a criminal indictment where a sergeant from a town north of Boston went into a holding cell and, according to the holding cell video, appeared to strangle a drunk woman who was in protective custody. The incident itself lasted only eight seconds, yet those eight seconds cost the sergeant his job. It may very well cost him his pension. The difficulty in resolving this case was that the safest way to protect his pension was to get this case continued without a finding, which would have ensured that his pension would not be forfeited under M.G.L. c. 32, §15(4). In the past I have had worse looking videos yet was able to get the criminal charges continued without a finding, but in this most recent case, the Middlesex District Attorney’s Office was looking for a committed state prison sentence. In trying to distinguish this case from past cases which were easier to resolve, I decided that the job of policing has gotten much more difficult. The public demands more from you than it ever has. Prosecutors now act in fear of the public having a visceral reaction to a bad police video when the video gets released to the media. The public demands super-human self-control from all law enforcement officers, and prosecutors are not willing to go lenient when officers show frailty in stressful situations. This is the world we live in and the world you now work in.You have to accept that things that would or could have been overlooked in the past are no longer overlooked.You have to adjust your conduct accordingly.You are always being watched. Summer is also a time where most people take time off. People go on vacation and leave their everyday world behind. My suggestion to you is that you should consider the end of every shift the beginning of a vacation, even if it is just for eight of sixteen hours. Please leave the world and the mind-set of a police officer at the station door when your shift ends. If you are off-duty and you see something amiss, please ask yourself “is it worth getting involved in this situation?” Obviously there are times where you must act, and the world is grateful for the actions of the off-duty Deputy Sheriff who shot the knife wielding lunatic at the Bertucci’s restaurant in Taunton several weeks ago. Lives were saved by this off-duty Deputy Sheriff activating himself. But often times, all that happens when you get engaged in “policing” while off-duty is that you yourself end up in trouble. It usually is not worth it. If you do need to get involved, do what you can to maintain the peace and call for on-duty officers to respond on your cell phone. Unless someone is losing life or limb, my advice is to let the people who are on-duty come and quell the situation without engaging yourself. Finally, please be careful with your social media posts this summer. Our country is incredibly polarized. Our society has collectively very thin skin.Yes, we all have First Amendment rights. But as Oliver Wendell Holmes, Jr. once said, however, “the right to swing my fist ends where the other man’s nose begins.”We live in a world of boundaries. Be mindful of those boundaries with your Facebook and Instagram posts. For years, I was able to successfully keep my work life separate from my non-work life. My Facebook friends were broken up in groups containing my past high school friends, my college friends, my former and current co-workers, my neighbors, and my relatives. Within the last year, however, my list of Facebook friends has expanded to include many BPPA members. I love some of the good-spirited debate and ribbing posted by you all on Facebook, but we all need to be cognizant of the over-sensitive, hyper politically See Anderson on page 63