RJA obtains $72,500.00 settlement arising out of motor vehicle accident

RJA recently obtained a very significant settlement on behalf of a client who was injured in a motor vehicle accident. The accident was caused by another driver who entered an intersection after running a red light as our client, with a green light, entered the same intersection. The collision forced our client out of the intersection and into some vegetation off the road. While our client fortunately did not break any bones or need any surgery, he did suffer physical injuries. Those physical injuries resulted in less than $12,600.00 in costs for medical doctors and hospital bills.

Prior to the commencement of litigation, the insurance company provided a low ball settlement figure. As a result, a complaint was filed in Superior Court and, after that filing, the insurance company insignificantly increased its offer. Both low offers were rejected.

In discovery, RJA was able to use evidence gathered to place the other driver in an impossible position in which he had to concede that his denial of responsibility for the accident was false and made in bad faith. Building from that foundation, the insurance company was advised that the complaint was to be amended to add the insurance company as a defendant in a claim for its unfair and deceptive business and litigation practices.

Soon thereafter, the insurance company not only more than quadrupled its settlement offer, but also expressed the wish to engage in, and pay for, mediation to try to settle the case. That mediation resulted in a settlement for our client of $72,500.00, a figure about six times the cost of his medical doctors and hospital bills.

RESULT: Settlement in the amount of $72,500.00 for RJA’s client.
RJA Counsel: Andrew J. Gambaccini and John K. Vigliotti

Arbitrator Reverses Five Day Suspension of Springfield Police Officer

In a recent arbitration award, Reardon, Joyce & Akerson, P.C. (“RJA”) successfully represented a Springfield police officer in connection with a five day suspension.

Prior to the five day suspension, the officer, who was not at that point a member of the Massachusetts Police Association Legal Defense Fund, had been suspended from his duties based upon various allegations, including that the officer had not been in proper uniform at the start of his shift.  Without the benefit of the Legal Defense Fund at that time, the officer served the suspension.

Following that discipline, the officer joined the Legal Defense Fund.

Later, in 2015, the officer was working a private road detail in the City.  At the time, the officer was carrying a radio and a firearm, but was not wearing a hat, badge, uniform shirt and was not carrying a baton, handcuffs or pepper spray.  A supervisor who encountered the officer on that detail ordered the officer back to his locker at the station to retrieve those various items before returning to the detail.

The officer did as instructed.  Thereafter, the officer was asked for a report concerning the matter and, after submitting his report, was issued a five day suspension by the appointing authority, the Police Commissioner.

The officer, now a member of the Legal Defense Fund, challenged the suspension before an arbitrator. [Read more…]

Open and Gross Lewdness and Lascivious Behavior Under G.L. c. 272, §16 Requires “Shock” or “Alarm” to Another Person

In the case of Commonweatlh v. Maguire, 476 Mass. 156 (2017), the Supreme Judicial Court addressed the elements of the felony crime of Open and Gross Lewdness and Lascivious Behavior under G.L. c. 272, §16.  Based upon a failure to prove that the defendant’s conduct of exposing his penis to several females sitting on a bench at the Hynes Convention Center subway platform produced either “shock” or “alarm” for the females or the MBTA officer who made the arrest, the Court reversed the conviction.  The officer testified that he was disgusted at the defendant’s actions and concerned that the women were being victimized by those actions, but the Court ruled that evidence was insufficient to meet the subjective shock or alarm requirement for conviction of the felony.  It reversed the conviction and remanded for entry of conviction for the lesser included crime of Indecent Exposure. [Read more…]

Police Need ‘Particularized Evidence’ to Seize Electronic Devices Without a Search Warrant and Must Diligently Apply for a Warrant After the Seizure

In Commonwealth v. White, 475 Mass. 583, 59 N.E.3d 369 (2016), a Boston police detective investigated an armed robbery and shooting at a convenience store.  His investigation led him to the defendant as one of the suspects.  Visiting the defendant’s high school, the detective learned from one of the administrators that, under the school’s policy, she was holding the defendant’s cell phone.  At the time, the detective had no information that the phone was used in the planning, commission or cover up of the crime, but he was aware that crimes committed by multiple suspects frequently involved the use of cell phones by the suspects.  He thought there might be useful information on the phone; he obtained it from the administrator so that the suspect could not remove or destroy any evidence on it.  He logged it into the department’s evidence room.  Sixty-eight days later, the investigation developed enough information that the police were able to obtain a search warrant to search the phone.  Once charged, the defendant moved to suppress the evidence found on the cell phone.  A Superior Court judge allowed the motion, and the Supreme Judicial Court affirmed the decision after the Commonwealth appealed. [Read more…]

RJA Gets Dismissal of Federal Civil Rights Lawsuit for Fall River Sergeant Who Came On Scene At Incident Conclusion

It could happen to you.  You respond to the scene of an incident, arriving as matters are all wrapped-up.  The bad guy is in handcuffs and secure.  You stay on scene for 5 minutes, waiting for everyone else to leave. You show-up, do nothing but be present and then you get sued in federal court two years later.  This scenario frequently plays out because you, as a responding police officer, get your name written in an arrest report as being present.  Looking at the lawsuit complaint, you read about your illegal arrest, search and excessive force.  There are no details as to your conduct, but you are lumped in with the all of the other police officers whose names were in the report.  You are dumbfounded — how could this happen?

Unfortunately, this happens all too often.  The arrestee hires an uninformed lawyer who sues everyone named in the report without looking into the facts of the case or investigating, or even asking who did what to whom.  This recently happened to a Fall River Police Sergeant who made a wise decision some years earlier to join the MPA Legal Defense Fund. The Sergeant contacted MPA LDF counsel who filed a motion to dismiss the suit with the court shortly after service of the complaint.  The well-crafted motion filed on behalf of the Sergeant compelled the federal judge to dismiss him as a defendant from the complaint.  Meanwhile, several other similarly situated police officers represented by other counsel remain in the lawsuit.  Civil rights law suits can linger for a couple of years in federal court, sometimes often longer in Superior Court. [Read more…]

Reardon, Joyce & Akerson, P.C. Prevails in Important Civil Service Case Establishing EPO Probationary Periods and Resulting in a Significant Award of Back Pay

A Massachusetts Environmental Police Officer (“EPO”) with the foresight to have joined the Massachusetts Police Association’s Legal Defense Fund found out just how valuable a resource the Fund is after being terminated from his EPO positon, and then being abandoned by his Union when he wanted to challenge that termination.

Soleimani was sworn in by the Massachusetts Environmental Police (“MEP”) as an EPO in May 2015, and, because he was a former Westfield police officer with academy training, he was not required to attend an additional police academy before performing his duties as an EPO.  After working more than six months, Soleimani believed he had completed his probationary period under G.L. c. 31, §34.

Despite having no discipline issued against him and his most recent review in December indicating he was exceeding expectations, on April 21, 2016, Soleimani was summoned to Boston by his superiors for a meeting the next day.  When Soleimani reported to Boston, the MEP personnel present requested that he resign.  When Soleimani refused, he received a letter dated April 22, 2016 that stated simply that MEP was informing him that they “would not be extending [his] employment with the Commonwealth of Massachusetts” and stated that his last day would be on the same day.  Soleimani was not provided with any information regarding his termination, despite inquiring several times, other than what was provided in the letter.  The letter did not comply with the provisions of G.L. c. 31 § 41. [Read more…]

Suspect Still Has No Right to Counsel Before Deciding Whether to Take Breathalyzer Test

Recently, the Supreme Judicial Court ruled that the amendment in 2003 of the Commonwealth’s drunk driving law, G.L. c. 90, § 24, did not provide a reason for it to reverse its decision in Commonwealth v. Brazelton, 404 Mass. 783 (1989), that there is no right to counsel when a suspect must decide whether or not to take a breathalyzer test.  In Commonwealth v. Neary-French, 457 Mass. 167 (2016), the Court considered a question reported to it from the District Court asking whether the per se violation of operating a motor vehicle with a breath test of .08 or greater created by the 2003 amendments to G.L. c. 90, § 24 made the decision whether to take the breath test a critical stage of the criminal proceedings, requiring a right to counsel.  After examining the issue, the Court answered the question negatively, deciding that neither the federal nor state constitutions provided a right to legal counsel because the decision whether or not to take a breathalyzer does not occur after the initiation of criminal proceedings, but is part of the preliminary evidence gathering process.

The defendant in Neary-French sought to avoid criminal responsibility for operating her vehicle under the influence of alcohol by challenging the police procedures, asserting that the officers never advised her of her right to counsel before she made the decision to take a breathalyzer test.  She argued that the creation of a per se violation in 2003 now made the breathalyzer decision a “critical stage” of the criminal proceedings against her and that meant that she had a right to counsel before making that decision.  She argued that the creation of the per se violation required the Court to reverse its holding in Commonwealth v. Brazelton that the decision was not a “critical stage” of the proceedings.  The District Court reported the question to the Supreme Judicial Court for decision.

In deciding to answer the question negatively, the Court examined its reasoning in Brazelton and measured that against various Supreme Court decisions and its own decisions that occurred in the intervening years.  It found that the creation of the per se violation did not alter the foundation of its previous ruling that the breathalyzer decision is not a “critical stage” that requires a right to counsel.  While acknowledging that the breathalyzer decision is an important tactical decision, the Court found that it occurred before the right to counsel attached because it is part of the evidence gathering that happens before charges are filed.  The term “critical stage” is a term of art describing “actions and events postindictment or arraignment,” and the breathalyzer decision is therefore not a “critical stage” because it precedes those events.  It also found cases from other states unpersuasive because they were based upon the state’s specific statutes, which did not resemble the Massachusetts statutes.

First Circuit Court of Apeals Affirms Judgment in Favor of Fall River Police Chief in Case Involving Allegation of Rape by a Police Officer

In a recent First Circuit decision concerning civil liability for police supervisors, Saldivar v. Racine, 818 F.3d 14 (2016), Reardon, Joyce & Akerson, P.C. (“RJA”) successfully represented the Fall River Chief of Police in a civil rights lawsuit in which the plaintiff, who sought $750,000.00 in damages, claimed that she had been assaulted and raped by a Fall River police officer.  According to the plaintiff, a Fall River police officer arrived at her apartment to investigate a complaint that she made earlier in the day and, once the officer was inside the residence, he threatened her with his gun and assaulted her sexually.  The officer later resigned his position with the Department.

The plaintiff filed a civil rights lawsuit naming the officer, the Chief of Police and the City of Fall River as defendants.  The City declined to represent the officer, who was not a member of the Massachusetts Police Association Legal Defense Fund, and the officer later had a judgment in the amount of $600,000.00 entered against him. [Read more…]

According to SJC, Police Need Only Notify Suspects of the Recording of the Interview; You Do Not Need Suspect’s Permission to Record the Interview

In Commonwealth v. Alleyne, ___ Mass. ___ (2016), the Supreme Judicial Court clarified that police officers do not need a suspect’s permission to record the suspect’s interview as long as the suspect has actual knowledge of the recording.  The Court recommended that police departments do away with their interview forms that advise a suspect of a right to refuse recording and that require the suspect to initial a choice whether or not to permit recording.  According to the Court, “… the better practice going forward is simply to advise suspects of the recording instead of requesting permission to record.” [Read more…]

First Circuit Court Of Appeals Affirms Judgment In Favor Of Fall River Police Chief In Case Alleging That The Plaintiff Was Raped By A Police Officer

In 2015, RJA secured the dismissal of a civil rights claim brought against the Chief of Police for the City of Fall River.  The plaintiff in the action accused a Fall River police officer of raping her while the officer was on duty, and the claim against the Chief of Police was that the Chief had failed to supervise or discipline the officer appropriately in the past, leading to the  officer’s commission of the sexual assault.

After losing with respect to her claim against the Chief before the District Court, the plaintiff  appealed to the United States Court of Appeals for the First Circuit.  At the First Circuit, the plaintiff alleged that the Chief violated her federal civil rights because he had failed to take appropriate action with respect to eleven prior disciplinary incidents of the police officer and that those incidents should have placed the Chief on notice of the officer’s propensity for misconduct.

After briefing and oral argument, the First Circuit affirmed the judgment in favor of the Chief of Police, concluding that the officer’s prior disciplinary history did not include any items that reasonably could have placed the Chief on notice of the potential for violent or sexual misconduct.  As a result, the First Circuit held, the federal civil rights claim against the Chief properly was dismissed.

RESULT:  Judgment in favor of the Chief affirmed.
RJA Counsel:  Andrew J. Gambaccini