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 to test whether they were driving under the influence.  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. David Mirsky provided experienced representation for the client.

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.  Jerry Nicholson claims 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.

Reference: Kevin Trombold.

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

State Court Judge Rejects Civil Rights And Other Claims Made Against Waltham Chief Of Police And Captain

In 2011, an individual made a complaint against a Waltham police officer that the officer inappropriately had threatened him. After its receipt, the complaint was investigated and, as a result of the inquiry, and after an appointing authority hearing presided over by a retired Judge, the officer was suspended. Through his union, the officer appealed the sanction and, at arbitration, the arbitrator reduced the discipline to a reprimand.

Apparently still dissatisfied, the officer filed a civil rights lawsuit against several defendants, including the Chief of Police who issued the suspension and the Captain who had conducted the investigation. The lawsuit alleged that the defendants violated the officer’s civil rights, invaded his privacy, engaged in a conspiracy, inflicted emotional distress, interfered with the officer’s advantageous relationship with the City, acted negligently and also defamed the officer.

The Chief and Captain were represented by RJA and, after the complaint was served, a motion to dismiss was filed. After oral argument on the motion, a Superior Court Judge agreed with RJA’s arguments that the officer had failed to state a viable claim against the Chief and the Captain, ordering that the complaint be dismissed with prejudice.

RESULT: Dismissal of all claims against RJA’s clients.

RJA Counsel: Andrew J. Gambaccini

Federal Court Dismisses Claims Made Against Fall River Chief Of Police In Case Alleging That Plaintiff Had Been Raped By A Police Officer

In a recent civil lawsuit seeking $750,000.00 in damages, the plaintiff accused a Fall River police officer of sexually assaulting her while the officer was on duty. Named as defendants were the officer, the City of Fall River and the Fall River Police Chief; the Chief was represented in the litigation by RJA.

Although the plaintiff filed her lawsuit in state court, believing that a motion to dismiss could be used to remove the Chief as a party to the case, RJA removed the case to federal court. Once in federal court, RJA convinced the plaintiff’s attorney to dismiss voluntarily two of the three claims made against the Chief; after the dismissal, the only claim left against the Chief was a federal civil rights allegation that, in essence, the officer’s lengthy disciplinary history should have served as a warning to the Chief and the Chief should have done more to supervise the officer. If additional action had been taken in response to past events, the theory went, the plaintiff never would have been raped by the officer.

On March 18, 2015, the federal judge agreed with the arguments presented by RJA as to the Chief and granted the Chief’s motion to dismiss. The judge concluded that, as a matter of law and despite the officer’s history, the plaintiff had failed to demonstrate that she had a viable civil rights claim against the Chief.

RESULT: Dismissal of all claims against the Chief.

RJA Counsel: Andrew J. Gambaccini

Federal Court Rejects Claims Against Lawrence Police Chief and Captain

In November, 2010, a police officer with the Lawrence Police Department was in Lawrence District Court to support the son of the Department’s Deputy Police Chief, who had been charged with various crimes. While in the courthouse, the officer had an interaction with three civilians who were involved in the prosecution of the Deputy Chief’s son. Based upon that interaction, the three civilians complained to an Assistant District Attorney.

An investigation by the Lawrence Police Department and the Massachusetts State Police was conducted and, based upon that investigation, the police officer was charged with counts of witness intimidation and was arrested. After a grand jury elected not to indict him on the charges, the police officer sued the Lawrence Chief of Police, a Captain with the Lawrence Police Department, the City of Lawrence and members of the Massachusetts State Police. The officer alleged that his rights had been violated because he had been targeted and arrested falsely.

RJA represented the Lawrence Chief of Police and the Lawrence Captain. Through motion to dismiss paperwork, the argument was made that the officer’s claims were untimely and were insufficient as a matter of law to continue. The federal judge agreed and dismissed all claims against all of the defendants and the officer has decided not to pursue an appeal of that decision.

RESULT: Full and final dismissal of all claims.
RJA Counsel: Andrew J. Gambaccini

RJA Scores Important Victory For Law Enforcement In Constitutional Claim

Most civil rights claims against police officers in Massachusetts are made by former criminal defendants who, for one reason or another, were not found guilty of the criminal charges brought against them. Going forward, those plaintiffs will have one less claim that they can make against police officers involved in their arrest or prosecution.

RJA represented a Sergeant with the Springfield Police Department in connection with a federal civil rights claim made by a former criminal defendant who had been found not guilty of the charges brought against him by the District Attorney’s Office. Included among those claims was an allegation that the Sergeant was liable civilly because a piece of evidence, which the plaintiff claimed was exculpatory and would have been helpful in his defense, was not turned over during the criminal prosecution.

After the filing of a motion to dismiss by RJA, a federal judge in Springfield agreed with the arguments made and concluded that, as a matter of federal constitutional law, a civil rights plaintiff is not able to make a claim that he or she was wronged by a failure to turn over evidence if the plaintiff was not convicted criminally.

This authority, the first time that a federal court in Massachusetts has issued such a determination, now can be used to benefit police officers in future lawsuits and effectively has eliminated an entire category of claims that can be brought against law enforcement officials.

RJA Counsel: Andrew J. Gambaccini and John Vigliotti

RJA Obtains $58,000.00 Settlement In Motor Vehicle Accident Case

RJA’s client was driving in Carver, Massachusetts on a Sunday afternoon when a driver on an intersecting street went through a stop sign and crashed into our client’s vehicle. The force of the collision caused our client’s vehicle to perform a 360 degree spin until it came to rest against a telephone pole. As a result of the accident, our client suffered a fracture to a bone in his left arm and a second degree burn to his forearm from the air bag deployment. Prior to suit, the insurance companies made a number of offers, all of which were too low. Since there are occasions where insurance companies bank on attorneys who are unwilling to litigate and the insurance companies use that to their advantage in making their offers, RJA demonstrated that it was not in that class and instead filed suit on our client’s behalf in Superior Court. Soon after the litigation was commenced, the insurance company made a series of increased offers, until ultimately the matter was settled on favorable terms for our client.

RESULT: $58,000.00 settlement.
RJA Counsel: John K. Vigliotti and Andrew J. Gambaccini