Police reverse stance on taping of officers’ actions

Bystander found to be within rights Internal Affairs says officers were in error

Two Boston police officers showed poor judgment when they arrested a bystander for filming them on Boston Common in 2007, the department has ruled, in a reversal of its initial position that the officers had done nothing wrong.

The two officers, Sergeant Detective John Cunniffe and Officer Peter Savalis, face discipline ranging from an oral reprimand to suspension, a department spokeswoman said yesterday.

The finding was released six months after the US First Circuit Court of Appeals ruled that citizens have the right to record police officers while they are performing their duties.

The bystander, Simon Glik, a 35-year-old Boston lawyer, filed an internal complaint against the officers after he was charged with unlawful wiretap and aiding the escape of a prisoner in October 2007.

Glik was on the Common when he whipped out his phone because he said the officers were using excessive force against a suspected drug offender whom they had put in a chokehold.

A February 2008 Boston police memo, issued after investigators from the Internal Affairs Division had interviewed Glik about his arrest, said the officers did nothing wrong, even though a Boston Municipal Court judge had dismissed charges against the lawyer.

"Mr. Glik did not articulate a violation of law or the department's rules and regulations by an officer,'' Sergeant Marwan Moss of Internal Affairs wrote in the memo. "Mr. Glik was advised that the proper forum for this matter was with the courts.''

In February 2010, Glik, backed by the American Civil Liberties Union of Massachusetts, filed a federal lawsuit alleging that police had violated his civil rights.

Glik, who works in Allston, said he was surprised last Thursday, when he received a letter from Superintendent Kenneth Fong of the Police Department's Bureau of Professional Standards.

In the letter, Fong said that Internal Affairs had now found that Cunniffe and Savalis had used "unreasonable judgment'' when they arrested Glik. Neither Cunniffe nor Savalis could be reached for comment yesterday.

"As far as I knew, my complaint was summarily dismissed. . . . I was basically laughed out of the building,'' Glik said. "From what I understand, it takes filing a federal lawsuit in order for internal affairs to review a complaint.''

In his letter, Fong said that the officers did not use excessive force against the suspect.

Glik's lawyer, David Milton said his client is considering whether to appeal that decision to the city's civilian review board.

"The fact that this investigation took over four years . . . shows a lack of genuine concern for investigating misconduct by the Police Department,'' Milton said.

Initially, police said that the officers arrested Glik because they believed he was interfering with their arrest of the other suspect.

Elaine Driscoll, spokeswoman for Police Commissioner Edward F. Davis, acknowledged yesterday that the Internal Affairs Division decided to re-examine the case after Glik filed his federal complaint. "The decision was made in 2008 based on the information that they had at the time,'' Driscoll said.

In the past two years, as cellphone cameras have become ubiquitous and YouTube videos showing arrests commonplace, Boston police have issued memos and training videos explaining the law, Driscoll said.

"There is no right of arrest for public and open recordings under this statute,'' a training bulletin instructs police.

"The advent of all this new technology creates new territory for the Police Department, which isn't unique to Boston,'' Driscoll said. "It was a bit of a new issue back at the time, and I think that we've put a lot of mechanisms in place to make sure that officers are fully trained on it.''

The state's wiretap statute forbids any secret video or audio recording of another person. But civil libertarians have argued that the statute does not require the consent of the party being recorded if the recording is done openly. Glik said he had his phone out in full view and was about 10 feet from the officers.

In June 2010, US District Court Judge William Young denied the officers' request for dismissal of the lawsuit. Last August, the Appeals Court affirmed that decision, finding that the officers lacked probable cause to arrest Glik.

"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,' '' the judges wrote in their unanimous decision. "This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties.''

Glik said he will press on with his lawsuit against the city, Cunniffe, Savalis, and a third officer, Detective Jerome Hall-Brewster, who was present during the arrest. Internal Affairs Division officials did not sustain the complaint against Hall-Brewster because they said he initially was not aware of the charges filed against Glik.

Milton said Glik is seeking unspecified money damages and "a public recognition that what he was doing was perfectly legal.

William Sinnott, the city's corporation counsel, declined to comment on the Internal Affairs decision.