FALL RIVER, MASS. (WPRI) – A Fall River man has been charged with violating the Massachusetts wiretapping statute for recording a police officer talking on his cell phone and cursing while working a street detail.
George Thompson, 51, of Fall River, faces one count each of unlawful wiretap and resisting arrest stemming from the Jan. 6 incident.
According to a review of an arrest report as well as interviews with Thompson and a police official, there is no dispute about whether the arresting officer – Thomas Barboza – was talking on a cell phone and swearing while he worked a construction detail. The officer was disciplined for violating departmental policy, according to the police chief.
But the arrest report states Thompson was “secretly audio taping” the officer by attempting to conceal his phone, and that in doing so broke Massachusetts law.
Thompson claims the phone was in plain view and he was not trying to hide his efforts, noting that the whole incident took place on a public street.
“I’m sticking [the phone out] with my arm fully extended sitting on the porch,” Thompson told Target 12. “With my arm fully extended, I’m videotaping him.”
Thompson – who spent a night in jail after the arrest – said Officer Barboza confiscated his iPhone. A review of the video would likely clear up the issue of concealment, but Fall River Police Chief Daniel Racine said the iPhone was erased while it was in an evidence room at the police station. They have issued a warrant to Apple Inc. to find out how the phone was reset.
“If a Fall River police officer erased that video, he’s fired and I would suspect the district attorney would take out charges,” Racine said. “If any other individual did that, we will take out felony charges.”
An iPhone can be wiped out remotely in the event it gets lost or stolen, but Thompson denied that he did so, saying he gave his password to police so officers could retrieve the video to use in his case.
“I wanted the police to see it, I wanted everybody in the city to see it,” Thompson said.
Last month Thompson filed a complaint with the police department over Barboza’s conduct while in uniform.
Chief Racine confirmed he disciplined Barboza for talking on his phone during a construction detail and swearing with people in earshot.
Barboza was suspended without pay for one day and forbidden to take lucrative detail work for another 15 days, according to Racine.
“If they are working a construction detail they need to be focused on the construction, focused on the traffic, focused on the pedestrians and ensuring that the construction workers are safe,” Racine told Target 12.
But the chief is standing by his officer for arresting Thompson.
“I think we all have our basic rights,” Racine said. “I think people should not record others surreptitiously or secretively.”
‘I’m video taping you’
Thompson said he was sitting on his porch the morning of Jan. 6 reading the newspaper when he spotted Officer Barboza talking loudly on his cell phone.
“Every other word out of his mouth he’s dropping the F-bomb,” Thompson said. “This is going on 10, 15 minutes.”
According to the arrest report, Barboza claimed that while working the construction detail he “called a work associate to check on his welfare.”
Thompson said he had seen enough when an elderly woman passed by the swearing officer.
“I said to him, ‘Why don’t you cool it with the language there?’” Thompson recalled. “He says, ‘Why don’t you shut the [expletive] up and mind your own [expletive] business?’”
The arrest report makes no mention of that alleged exchange.
Admittedly annoyed, Thompson said he pulled out his iPhone and turned on the camera to record the officer, who continued his phone conversation.
Barboza said he spotted Thompson sitting on his porch “by chance,” according to the arrest report.
“Thompson had a cell phone, as if just resting, holding it close to his body in front of his middle chest area,” Barboza wrote. “At this time Thompson shouted out to me, ‘That’s right, I’m videotaping you!’”
Barboza wrote that he ended the phone conversation and approached Thompson. Thompson said the officer exploded in anger.
“He comes running up the stairs to me looks right into the camera and says, ‘You [expletive] welfare bum, I’m arresting you,’” Thompson said. “I actually thought it was a joke.”
According to the arrest report, Barboza said Thompson fought back when the officer attempted to handcuff him.
“In attempting to placed [sic] the cuff on the right wrist, he resisted pulling his hands apart,” Barboza wrote. “Thompson was at the time holding his video taping phone in his right hand. I then knocked the phone from his hand and pushed him onto the porch floor.”
Thompson said he had a second phone he was using to call the police department asking that a sergeant respond to the scene to oversee the arrest. Two other officers eventually arrived.
Thompson pleaded not guilty at his arraignment the next day. He has another court date on March 13, and he said his lawyer is going to request that the charges be dropped.
Chief Racine said the charges have nothing to do with an officer being recorded and that he would arrest anyone for violating the state’s wiretap statute if police could prove a conversation was secretly recorded.
“You cannot surreptitiously record people, people – not public officials – in Massachusetts,” he said. “That’s the state of the law.”
Thompson said he doesn’t regret recording the officer and believes he was within his rights to do so.
“I regret not having a program that would have saved that video,” he said. “I’m going to be a troublemaker with this – and with this city – until this is investigated right.”
Thompson has hung a sign on the side of his residence that states “Bad cop, no donut,” with Barboza’s badge number.
One-party consent
Two high-profile court cases may have an impact on what happens to Thompson, and both boil down to whether the phone was concealed or not.
In 2008 the 1st Circuit Court of Appeals ruled that the First Amendment rights of a lawyer were violated when he was charged for openly recording the arrest of a teenager in Boston.
But Chief Racine said he’s confident that if the evidence proves Thompson hid the phone, the charges will be upheld because of another court ruling.
A 2001 Mass. Supreme Judicial Court decision found a Braintree man violated the law when he secretly recorded an Abington police officer during a traffic stop.
Massachusetts is one of a dozen “two-party” consent states that prohibit the surreptitious audio recording of someone else. Most other states – including Rhode Island – are “one-party” consent states, where only one person needs to know about the recording device.
When asked what he would say to people who wonder if what transpired was an abuse of power, Racine said his officer was simply following the law and suggested those who see it otherwise need to get lawmakers to change it.
He said he supports the law as it stands now.
“Can you come in here and record me off-the-record surreptitiously? Where does it end?” Racine said, adding it doesn’t matter that the Thompson incident happened on a public street. “I think we have a right not to be recorded secretively. That’s my position. That’s the position of the Commonwealth of Massachusetts as well.”
Tim White ( twhite@wpri.com ) is the Target 12 investigative reporter for WPRI 12 and Fox Providence. Follow him on Twitter: @white_tim
http://wpri.com/2014/03/06/massachusetts-man-arrested-after-recording-police-officer-in-street/
…I sent this journalistic inquiry off to the City of falls River and their Mayor/Police Chief…I’ll let you know if I receive any response…
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Your Fascist Police Chief’s quote:
“Can you come in here and record me off-the-record surreptitiously? Where does it end?” Racine said, adding it doesn’t matter that the Thompson incident happened on a public street. “I think we have a right not to be recorded secretively. That’s my position. That’s the position of the Commonwealth of Massachusetts as well.”
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– Does your Chief not know that several Supreme Court rulings make it the “law-of-the-land” that filming public employees (especially police) while in the function of their duties is completely legal…and to stop, intimidate or arrest someone for doing so is unconstitutional?
– Is he that dumb?
– Is he that uninformed?
– Is he that much of a Fascist?
– I recently read where your department has exonerated itself in the abuse of a Falls River victim of this unconstitutional policy.
– I understand that your officers and your Chief think is is acceptable to harass, arrest, detain or intimidate someone legally photographing Falls River Police Officers while in the function of their duties? An action that has been found to be in violation of the Citizen’s Constitutionally Protected Rights.
– If you could read..or do your job properly…you would know that The Courts tend to disagree with your Fascist Chief…..thus the following:
“It’s the second federal appeals court to strike down a conviction for recording police. In August 2011, the U.S. Court of Appeals for the 1st Circuit ruled that a man wrongly arrested for recording cops could sue the arresting officers for violating his First Amendment rights. That decision also found a broad First Amendment right to record on-duty government officials in public: “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’” And in fact, in that it strips police who make such arrests of their immunity from lawsuits, it’s an even stronger opinion. Of course, the police themselves rarely pay damages in such suits — taxpayers do.”
– Your city may claim that the Officer was not involved in an official duty, so he had the right to arrest the man filming. But then again, how can a police officer on unofficial duty arrest someone? At what point did the officer go on “official duty”? Was it when the officer began arresting the man for filming a public street?
– If the officer was on a private assignment, how is it that your Department can “suspend” him for a day for cursing and violating department policy?
– You cannot have it both ways…either the officer was on official duty…subject to the same SC Rulings… and you have every right to take disciplinary action against him for his curing and pejorative behavior….or….the officer was on unofficial duty and was expected to uphold the law…(SC Rulings)…and not harass, intimidate or officially arrest the man for filming on a public street?
– I think your “logic” has put the city of Falls River in a world of financial hurt…Ha!
– As a local author who writes about police abuse, I wonder how as human beings you even can justify this action, or look yourselves in the mirror?
– I am working on an essay for a major American Magazine related to criminal activity on the part of LEO’s around the country…would you care to comment on how corrupt, absurd and criminal your department looks now, both to the citizen’s of Falls River, as well as the rest of the world?
– Having been raised in a family of corrupt LEO’s, I understand the culture is to protect one another at all costs…lie, cheat, steal….abuse….so your Department’s situation doesn’t shock me…but I wonder what all you blue-clad little boys are going to do when a real revolution rocks the City of Falls River, this country and when the Falls River LEO’s become the target of the raging masses?
– Are you prepared for the millions of pissed off citizens…(in and around Falls River)…who may now have been given incentive to chase down every member of your Department, City Council / Government… …arrest , charge and convict them with treason…and then hang them in the public square.. while arresting and convicting their families, wives, kids etc…charging and convicting them with generational treason and hanging them…as out-of-control mobs tend to do?
– Just how much criminality is the City of Falls River and it’s Police Chief willing to accept and defend from within an out-of-control group of LEO’s when “the people” decide they have had enough?
– Good thing that 2nd Amendment still exists…eh? As an objective observer…I think LEO’s in this country are going to be finding out very soon…what the purpose of that Amendment was intended….is your department prepared for that?
RJ O’Guillory
Author-
Webster Groves – The Life of an Insane Family