You can both videotape and publicize police abuse – Jean v. Mass. State Police

Mary Jean, who the 1st Circuit described as “a local political activist in Worcester, Massachusetts” publishes a a website critical of Worcester County District Attorney John Conte ( Coincidentally (insert sarcastic sneer here), she wound up the focus of an investigation for the illegal publication of a videotape of police misconduct. Fortunately, she lives in a free state.

In October 2005, Paul Pechonis, a stranger to Jean, contacted her through her website and explained how eight armed Worcester police had stormed his home, arrested him on a misdemeanor charge, and then conducted a warrantless search of his entire home. What was the charge? Pechonis allegedly called for the “resignation or execution” of a judge. Given the latter, I can see the police investigating. I take no position on whether Pechonis broke the law or not. However, the video clearly shows police misconduct during the arrest.

We all know that this kind of thing happens every day. However, in this circumstance, Pechonis had a “nanny-cam” that videotaped the entire episode of police misconduct. He gave it to Jean, who posted it on her website. The police claim that the recording was an illegal surreptitious recording, in violation of Mass. Gen. Laws ch. 272, § 99 (the state wiretap law), and attempted to intimidate her into taking the recording off of her website through a letter from Ann McCarthy, Deputy Legal Counsel for the Massachusetts State Police.

Normally, I would slam McCarthy for such a clearly unconstitutional and unethical act. However, in 2001, the Massachusetts Supreme Court in Commonwealth v. Hyde, 434 Mass. 494 (2001), issued a foul abortion of a decision that upheld the conviction of a motorist under this law who audiotaped police misconduct during a traffic stop. Therefore, I think we must give Ms. McCarthy some benefit of the doubt.

Of course, in Jean v. Mass. State Police, the police went one step further than they did in Commonwealth v. Hyde. They were not prosecuting the man who videotaped the abuse, but were attempting to force Jean to take the video off of her website.

Let me spell this out for anyone who might be a little less than bright. In all fairness, this site is accessible to the public, and 26% of the public still thinks that GWB is doing a good job.

  1. The police committed misconduct
  2. Someone got a tape of it
  3. The police attempted to use force of law to stop the publication of the tape.

Thank goodness that the Federal Courts in Massachusetts are protective of the First Amendment (The State Courts have disappointed me lately).

Jean filed suit in Federal Court to enjoin the police from taking any further steps to suppress her First Amendment right to publish the tape. The District Court found that even if the tape was illegally made, Jean had “obtained the tape lawfully,” and the videotape related to a “matter of public concern.” Based upon that logic, the District Court concluded that the First Amendment likely protected her right to publish this lawfully-obtained tape, and in the absence of an injunction, there would be irreparable harm to Jean’s First Amendment rights. Transcript of hearing here. Injunction here.

Interestingly enough, the District Court specified that the police could continue to investigate whether the tape had been obtained illegally, and if so, if Jean had any liability for its production. In other words, they did not issue a ruling that contradicted Commonwealth v. Hyde. Now that’s too bad, because the Mass. Supreme Court needs to have its hand slapped for that one, but such is life.

Now the Mass. State Police and their counsel went insane and appealed. As a cop and as a lawyer, you put up your hand and vow to “uphold and defend the Constitution.” It is beyond comprehension how anyone who has done so can attempt to suppress the publication of lawfully obtained information of public importance. It’s called an unlawful prior restraint. See New York Times Co. v. United States, 403 U.S. 713 (1971).

Despite the Massachusetts State Police’s attempt to turn the Commonwealth into the Massachusetts Police State, the First Circuit preserved this cornerstone of the Republic – for today. They held that Jean has a reasonable likelihood of success on the merits of her claim that the First Amendment protects the posting of a recording under such circumstances. Consequently, we uphold the preliminary injunction.

Accordingly, if you live in Massachusetts, Maine, New Hampshire, or Rhode Island, rest assured that you can still publish evidence of official misconduct — as long as you obtained it lawfully. Could you imagine if the ruling had been to the contrary? Newspapers could be shuttered by jackbooted thugs attempting to cover up their own misconduct — which they try to do all the time.

Today, I will take my First Circuit license down off the wall and give it a big kiss.

The opinion is available here.

And here is the video. The audio is a little unclear, but you can hear them tell him that he is under arrest for “statements made on the internet.” How that justifies a complete warrantless search of his entire home is beyond me — and apparently beyond the police, which is likely why they don’t want you to see this video.

By the way, if they’d like to stop me from publishing the video too, I will keep my ass nice and clean so that when they kiss it, it is not an entirely unpleasant experience for them.

15 Responses to You can both videotape and publicize police abuse – Jean v. Mass. State Police

  1. kbrick says:

    Unfortunately for us, it seems as if the police want to run roughshod all over our constitutional rights. I am glad that the court found in favor of the first amnedment, and did not force Jean to take the video down. I know it was mentioned in the above post, but I think it is important to note again. THE POLICE ARE SWORN TO UPHOLD THE LAW, THEY ARE SUPPOSED TO BE HERE TO “PROTECT AND SERVE”, WE THE PEOPLE ARE THEIR EMPLOYERS! I wholeheartedly beleive that an unacceptable percentage of police think they are above the law. The police are no different than any other profession in that there are bad actors, it is true with doctors, lawyers, etc… The difference though is that the police carry guns and put someone away with their testimony. Thank god for the media, they are constantly unearthing instances of gross misconduct by the police. Here are a few examples, the Chicago four who were videotaped getting into a barfight and beating up two individuals, again chicago, an officer is videotaped beating up a 100lb female bartender when she refused to serve him anymore, and Tom coleman a texas panhandle undercover cop commiting perjury to send 36 individuals to jail. These are only a few examples and I’m sure the police in any city across the United States commit crimes everyday, whether it be perjury or violating civil rights or downright thuggery hiding behind their badge like cowards. Every american should have the right to videotape with audio their arrest , it has become increasingly obvious that they cannot be trusted and they certainly can’t be trusted to police their own. For more on police misconduct Radley Balko of has a plethora of information that will make your stomach turn.
    kurt brickman

  2. raj says:

    I’m actually amazed that government officials, including the state police, can claim a privacy right while they are performing their official duties. That’s what the crux of this matter is. Government officials, while in the performance of their public duties have no privacy rights.

  3. Marcelo D. Muñoz says:

    This is the reason i’m voting for Ron Paul. Just wished we’d found him earlier.

  4. […] the Police – Carlos Miller Blog Back in July I wrote about Mary Jean, the activist who fought the Massachusetts State Police when they tried to force her to stop […]

  5. […] how prosecutors have abused citizens with obscenity prosecutions, more obscenity prosecutions, or laws regarding videotaping the police to see that I am […]

  6. Jared says:

    Ummm OK I don’t see what the problem is. Where was the storming of the home? Where was the misconduct? Abuse? I don’t get it.

    I wish the cops were that nice when they stromed houses.

    There are real abuses happening out there. Why did you waste your breath on this one.

    Now the intimidation to take it off the site, that is a bit different. I could cite a lot of cases for that one.

  7. Albert says:

    Any search of a home without a warrent or the possibility of a crime in progress is misconduct. The fact that the cops were looking around like that makes me think they were probably cronies of the judge, hoping to find some real charges to press. The issue here is that those entrusted with upholding the law break it more than they do uphold it. When they aren’t harassing whomever happens to be walking by, their using their gun and their badge for their own profit and well-being. Pointing this out needs to happen as much as possible, because police destroy the evidence. The only reason this video even exists is because the camera is hidden. If an officer had seen it, it would have been confiscated and destroyed.

  8. eric says:

    they are people with power, and like all people with power they use it for better or for worse.

  9. Kathy says:

    Waht happens when the person who recorded the video is the same person who runs the blog and posts the video to Youtube?

    Recently, State Police officer was disciplined for threat to place individul under arrest for complaining that the Officer had illegally parked in an handicapped parking space. The individual took photos, and made a sound recording.

  10. Karla Ward says:

    I have a sheriff living behind me who watches as other neighbors come into my home and steal stuff. Guess you piss off a cop, they can do whatever they want to you, your house, your medical records. I had a ureteral stone pushed back into my kidney (after 4 months of trying to pass it), found out 10 years later, it was intentional. My twin sister had found out she had type of cancer, by reading reports–THREE years later (this is at the FABULOUS MAYO clinic in MN. Guess if you are accused of molesting 32 years ago, they don’t have to tell you they can just follow you for years videotaping you and you wouldn’t believe what else. Funny, I don’t remember doing anything like that. Would’ve only been 11 yrs old at the time. I found out if the cops want you, they get you one way or another.

  11. Daverod707 says:

    Wow! So glad that we won this case. I also have a video that I will be picking up from the evidence room tommorow. From a camera that was taken from me in an illegal manner. I also won the case and now it’s time to bring it to light.

  12. gooroo says:

    jared what an idiotic statement

    police cannot enter your house without a warrent or your permission. they broke the law.

    (stupid cops)

  13. Now, here’s the heart of the battle, RIGHT HERE:

    “In other words, they did not issue a ruling that contradicted Commonwealth v. Hyde. Now that’s too bad, because the Mass. Supreme Court needs to have its hand slapped for that one, but such is life.”

    The courts are failing to uphold our rights. These are rights espoused by guys like John Locke, Thomas Hobbes, Thomas Jefferson, and SPECIFICALLY ENUMERATED in the Constitution.

    The First Amendment, AGAIN, if you please, until these supposedly well-educated judges with decades of legal training and practice can ALL say it by memory:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

    This is our Bible. How could the drafters of the Constitution fail to hold our courts to the same standard of 1st Amendment protection as Congress? A pitiable mistake.

    Here is my petition for a redress of grievances. Does anyone else want to peaceably assemble with me?

  14. […] you videotape and publicize police misconduct like these kids […]

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