Can Law Enforcement Officers Commit Any Crime While Off-Duty and Retain Their Pension?

by Michael Sacco

Case Focus

In a unanimous decision in two companion cases, Essex Regional Retirement Board v. Swallow and State Board of Retirement v. O’Hare, 481 Mass. 241 (2019) (Swallow/O’Hare), the Supreme Judicial Court (SJC) has determined that a law enforcement officer will not be required to forfeit his pension after a criminal conviction unless there is a direct link — either factual or legal — between the officer’s off-duty conduct and his position. This is the same standard to which other public employees in Massachusetts are held. This decision startled many in the public pension community. Only the legislature may change the standard to which law enforcement officers are held, by expanding the pension forfeiture statute’s narrow scope.

A Brief History of the Public Pension Forfeiture Law

Pension forfeiture provisions have existed in the retirement statute since the retirement law was codified in Chapter 32 of the Massachusetts General Lawsin 1945. The statute states that if a public employee is convicted of certain enumerated statutory offenses or misappropriation of the employer’s funds or property, the employee forfeits any right to a pension and receives a return of any contributions made to their annuity savings account. In 1986 however, the SJC held in Collatos v. Boston Retirement Board396 Mass. 684 (1986), that the legislature intended G. L. c. 32, § 15 (3A) to require forfeiture of a public employee’s pension only if the employee was convicted of two state crimes, G. L. c. 268A, § 2 (corrupt gifts, offers or promises to influence official acts, corruption of witnesses) and G. L. c. 265, § 25 (attempted extortion), and thus the  public employee’s guilty plea to violating 18 U.S.C. Section 1951 (extortion) would not require pension forfeiture. The SJC construed the statute narrowly because of its penal character.

Shortly after the Collatos decision, the legislature amended the statute by inserting G. L. c. 32, § 15 (4), which provided an intermediate level of pension forfeiture if the criminal conviction was a “violation of the laws applicable to his office or position.” While Section 15 (3A) required a complete forfeiture of pension rights, Section 15 (4) provided that a pension forfeiture would entitle the public employee to a return of his accumulated total deductions (funds withheld from the employee’s weekly check and paid to the retirement system), less any interest accrued thereon.

The first SJC decision interpreting Section 15 (4) was Gaffney v. Contributory Retirement Appeal Board, 423 Mass. 1 (1996). In Gaffney, the SJC held that a pension forfeiture was warranted when the superintendent of the Shrewsbury water and sewer department was convicted of larceny by common scheme for stealing the Town’s money and property. Id. The SJC acknowledged that the legislature did not intend that a pension forfeiture should follow any and all criminal convictions. Id. at 5. Rather, “the substantive touchstone intended by the General Court is criminal activity connected with the office or position. . . . Looking to the facts of each case for a direct link between the criminal offense and the member’s office or position best effectuates the legislative intent of § 15 (4).” Id. In Gaffney, the direct factual link between his employment and his criminal conviction was clear, and thus pension forfeiture was warranted.

Criminal Activity Not Limited to On-Duty Conduct

In Maher v. Justices of the Quincy Division of the District Court Department, 67 Mass. App. Ct. 612 (2006), the Appeals Court determined that a public employee’s off-duty criminal conduct can result in pension forfeiture even if the criminal conviction did not involve a violation of a statute that specifically pertains to public employees or, unlike Gaffney, did not involve misappropriating the employer’s funds or property. In Maher, the plaintiff was the chief plumbing and gas inspector for the City of Quincy. Id. at 613. He and another city employee broke into and entered the personnel office at city hall. There, the plaintiff reviewed his personnel file and stole a document or documents from the file. A few weeks later, a new mayor took office. The plaintiff took superannuation retirement and subsequently pleaded guilty breaking and entering in the daytime with intent to commit a felony, wanton destruction of property, and stealing personnel records and various documents. Id. His pension was forfeited, and the Appeals Court upheld the pension forfeiture, specifically referencing Gaffney and stating that the statutory requirement that the criminal activity be connected with the office or position “does not mean that the crime itself must reference public employment or the employee’s particular position or responsibilities.” Id. at 616.

The Durkin and Finneran Decisions

Similarly in Durkin v. Boston Retirement Board, 83 Mass. App. Ct. 116 (2013), a law enforcement officer’s off-duty conduct resulted in forfeiture of his pension. Paul Durkin was a Boston Police Officer who became inebriated off-duty and used his service revolver to shoot a fellow off-duty police officer who was giving him a ride home. Id. at 117. Durkin pleaded guilty to assault and battery by means of a dangerous weapon, and the Boston Retirement Board forfeited his rights to a pension. Id. The Appeals Court upheld the retirement board’s decision, noting that “Durkin engaged in the very type of criminal behavior he was required by law to prevent. This violation was directly related to his position as a police officer as it demonstrated a violation of the public’s trust as well as a repudiation of his official duties. Clearly, at the heart of a police officer’s role is the unwavering obligation to protect life, which Durkin himself recognized at his hearing. His extreme actions violated the integrity of the system which he was sworn to uphold.” Id. at 119.

In State Board of Retirement v. Finneran, 476 Mass. 714 (2017), the SJC discussed the pension forfeiture statute’s twenty-year evolution into two recognized types of “direct links” between a public employee’s position and the crime committed: factual links and legal links. In cases involving factual links, a public employee’s pension is subject to forfeiture under Section 15 (4) only when there is a direct factual connection between the public employee’s crime and position. Id. at 720-21. Surprisingly, the court cited the Durkin case as an example of a direct factual link, noting that that crime had been committed with the police officer’s service revolver. Id. at 721. In cases involving direct legal links, forfeiture is mandated under Section 15 (4) when a public employee commits a crime directly implicating a statute that applies to the employee’s position. Id.

Swallow and O’Hare in the Appeals Court

The Durkin and Finneran decisions implied that the plaintiff in Durkin may have kept his pension had he merely committed the offense with his personal weapon. In Swallow, a police officer who was on administrative leave was with his wife at their home. Swallow/O’Hare, 481 Mass. at 243. Swallow was drinking heavily and, after an argument, he grabbed his wife by the shirt, yelled at her, and waved his personal handgun in her face. Id. As she left the home and walked to a neighbor’s driveway, she heard a single gunshot. Id. Swallow was subsequently arrested and ultimately pleaded guilty to assault and battery, discharge of a firearm within 500 feet of a building, assault by means of a dangerous weapon, multiple counts of improper storage of a firearm, and intimidation of a witness. Id. The retirement board forfeited Swallow’s pension, largely relying on Durkin. Id. Although the District and Superior Courts reversed the retirement board’s decision, the Appeals Court reinstated it, noting that Swallow’s “use of a gun to threaten another’s life violated the public’s trust and repudiated his official duties.” Id. at 244. See Essex Reg’l Ret. Bd. v. Justices of the Salem Div. of the Dist. Ct. Dep’t91 Mass. App. Ct. 755, 760 (2017).

Finally, in O’Hare, a state trooper communicated online with, and eventually arranged to meet with, an individual whom he believed to be a fourteen-year-old boy but was actually an undercover agent with the Federal Bureau of Investigation (FBI). Swallow/O’Hare, 481 Mass. at 244. The FBI arrested O’Hare and he pleaded guilty to a charge of using the Internet to attempt to coerce and entice a child under the age of eighteen years to engage in unlawful sexual activity. Id. The retirement board forfeited O’Hare’s pension rights, finding that his conviction went “directly to the heart” of his responsibilities and obligations as a state police trooper. Id. The District and Superior Courts reversed the retirement board’s decision. Id. at 244-45. Like the posture of Swallow, the Appeals Court reversed, holding that forfeiture was required because O’Hare’s conduct violated the fundamental tenets of his role as a state police trooper, because protecting the vulnerable, including children, is at the heart of a police officer’s role, and this repudiation of his official duties violated the public’s trust and the integrity of the Massachusetts State Police. Id. at 245. See State Bd. of Ret. v. O’Hare92 Mass. App. Ct. 555, 559 (2017).

SJC Changes Course

As perhaps prophetically foretold in the reference to Durkin in the Finneran case, the SJC reversed both Swallow and O’Hare along similar lines. With respect to Swallow, the SJC held the retirement board should not have relied on Durkin for the proposition that forfeiture is mandatory after “a police officer violates the public trust and shirks his or her official duties.” Although Durkin discussed the fundamental nature of the police officer’s position and noted that the officer had violated the public trust by “engag[ing] in the very type of criminal behavior he was required by law to prevent,” forfeiture was ultimately grounded on the factual connections between the officer’s position and the criminal activity. Swallow/O’Hare, 481 Mass. at 251. In O’Hare, the SJC rejected the retirement board’s argument that there is an exception to the proposition that pension forfeiture should not follow “as a consequence of any and all criminal convictions” for law enforcement officials because of their “special position” in our society. In rejecting this position, the SJC stated emphatically, “[t]his is precisely the kind of unfettered breadth that we have consistently avoided.” Id. Accordingly, in both cases the SJC acknowledged the repugnant nature of the criminal offenses, but nevertheless reinstated the pensions. Id. at 254. In O’Hare, the SJC also summarily rejected the argument that there was a “legal link” between the criminal conduct and a violation of the “laws” applicable to State police. Id. at 252-53. The retirement board, relying on State Board of Retirement v. Bulger, 446 Mass. 169 (2006), in which the SJC found that perjury and obstruction of justice convictions violated the Code of Professional Responsibility for Clerks of the Courts and thus were a violation of the laws applicable to the office or position, had posited that the “laws” applicable to State police include the rules and regulations issued by the colonel of the State police pursuant to G. L. c. 22C §§ 3 and 10. O’Hare at 252. It argued that they function as a “code of conduct” and require that State troopers “avoid conduct that brings the State police into disrepute and obey all laws of the United States and the local jurisdiction.” Id. at 252. Unpersuaded, the SJC found that if the legislature wanted to include rules and regulations that do not have the force of law, it would have said so, as it had in the preceding section of the statute. Id. at 252-53. The SJC distinguished the circumstances in Swallow and O’Hare from the holding in Bulger, where a clerk-magistrate committed perjury in violation of the Code of Professional Responsibility for Clerks of Court — because the Code has “the force of law.” Id. at 253.

Many were surprised by the SJC’s refusal to hold police officers to the higher standard under pension forfeiture laws that had previously been applied to discharge for off-duty conduct, such as in Police Commissioner of Boston v. Civil Service Commission, 39 Mass. App. Ct. 594, 601 (1996) (officer lost his firearm while intoxicated and verbally abused other officers); McIsaac v. Civil Serv. Comm’n38 Mass. App. Ct. 473, 475-76 (1995) (officer negligently handled firearm while intoxicated and verbally abused other officers); Comm’rs of Civil Serv. v. Mun. Ct. of the Brighton Dist., 369 Mass. 166, 170-71 (1975), and Patuto v. Comm’rs of Civ. Ser., 429 U.S. 845 (1976) (upholding discharge of off-duty police officer who accompanied others while they uttered forged money orders). Perhaps less surprising is the SJC’s rejection of the argument that pension forfeiture can be triggered under Section 15 (4) by a violation of a rule or regulation or code of conduct which does not have the force of law. Implicit in its ruling, however, is that had the statute so provided, pension forfeiture would have surely resulted in O’Hare.

Looking Forward

Unless the legislature further amends Section 15 (4), police officers will be treated no differently than other public employees in assessing pension forfeiture for criminal activity. Interestingly, legislation has been filed to further restrict the scope of Section 15 (4). If enacted, it would limit a complete pension forfeiture to cases in which the prosecutor included such a penalty in the sentencing recommendation, and in the absence of such a recommendation, the local retirement board could implement a partial forfeiture based on its discretion and the facts and circumstances of the particular criminal conviction. In my view, the Legislature should follow the Court’s lead in extending the pension forfeiture’s statute’s reach to off-duty law enforcement officers’ conduct as it has in upholding employment termination proceedings. As the Appeals Court noted in Police Commissioner of Boston v. Civil Service Commission, 22 Mass. App. Ct. 364, 371 (1986): “Police officers must comport themselves in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel. They are required to do more than refrain from indictable conduct. Police officers are not drafted into public service; rather, they compete for their positions. In accepting employment by the public, they implicitly agree that they will not engage in conduct which calls into question their ability and fitness to perform their official responsibilities.” See also Falmouth v. Civ. Serv. Comm’n, 61 Mass. App. Ct. 796, 801-802 (2004) (“[p]olice officers must … behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel.  This applies to off-duty as well as on-duty officers.”)  While I recognize the financial impact a pension forfeiture will often have on the pensioner’s family, that should be a consideration before the law enforcement officer commits a crime that puts their family at perilous financial risk.

 

Attorney Sacco founded the Law Offices of Michael Sacco, P.C. on March 20, 2006, having practiced in various Boston law firms in the preceding 12 years. Since entering private practice in 1994, Attorney Sacco’s practice has focused exclusively in the representation of public pension systems in Massachusetts.


Commonwealth v. Lawson and Commonwealth v. Griffin: Recent Changes in Criminal Responsibility and the Presumption of Sanity

lyons_crystalby Crystal L. Lyons

Case Focus

This past fall, without much portent, the Supreme Judicial Court (“SJC”) created a seismic shift in the law of criminal responsibility when it eliminated the “presumption of sanity” in Commonwealth v. Lawson, 475 Mass. 806 (2016). As a result, the presumption of sanity will no longer carry the Commonwealth’s burden of proof and may no longer be considered as evidence of sanity. In fact, juries will no longer even receive an instruction on the presumption of sanity. Id. at 807, 814-815 & n.8. This article addresses Lawson’s explicit guidance, analyzes its application just a week later in Commonwealth v. Griffin, 475 Mass. 848 (2016), and anticipates the questions that both cases implicitly left open.

Before Lawson, when a question of the defendant’s criminal responsibility was raised, courts were required to instruct juries that they may consider that, because a great majority of persons are sane, there was a resulting likelihood that the defendant was sane. Lawson, 475 Mass. at 815 & n. 8. In Lawson, however, the SJC announced that rather than a true legal presumption, the “presumption” of sanity is instead “merely an expression” of the “commonsense understanding” that a defendant is probably sane because most people are sane.

In Lawson, the SJC recast a defendant’s lack of criminal responsibility as an affirmative defense, akin to self-defense. As an affirmative defense, the defendant must first proffer “some evidence” that, “viewed in the light most favorable to the defendant, would permit a reasonable finder of fact to have a reasonable doubt whether the defendant was criminally responsible at the time of the offense.” Id. at 807, 811. After doing so, “the Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant was criminally responsible.” Id.

Although the SJC appeared to anchor its decision in established precedent, Lawson breaks new ground and will have significant effects in the future. For example, Lawson cited Commonwealth v. Keita, 429 Mass. 843 (1999), for the proposition that the Commonwealth already bore the burden of proving that the defendant was criminally responsible. Previously, however, the Commonwealth’s burden was usually a mere formality where the presumption of sanity alone was sufficient to overcome a challenge. See Lawson, 475 Mass. at 813; cf. Commonwealth v. Vives, 447 Mass. 537, 540 (2006) (characterizing mental illness as a hindrance to the defendant’s ability to form a specific intent rather than as an affirmative defense). Now, however, to prove criminal responsibility, the Commonwealth must establish either:

1)       That at the time of the alleged crime, the defendant did not suffer from a mental disease or defect; or

2)       That if the defendant did suffer from a mental disease or defect, he nonetheless retained the substantial capacity to appreciate the wrongfulness or criminality of his conduct and to conform his conduct to the requirements of the law.

Griffin, 475 Mass. at 856 (citing Model Jury Instructions on Homicide 10 (2013)).

The Commonwealth can establish the defendant’s mental capacity at the time of the offense through either circumstantial or medical evidence. Lawson, 475 Mass. at 815-817. The types of circumstantial evidence that can support the inference of sanity are already well-known from prior cases. They include: the circumstances of the offense; efforts to plan the offense; a rational motive to commit the offense; rational decisions made proximate to the offense; efforts to avoid capture; attempts to conceal the offense or the defendant’s role in the offense; words and conduct before, during, and after the offense; and evidence of malingering. Id. “Where, however, this [circumstantial] evidence provides only weak support for a finding of criminal responsibility,” the Court made clear that “the Commonwealth proceeds at its peril if it chooses to offer no expert to rebut a defense expert’s opinion of lack of criminal responsibility.” Lawson, 475 Mass. at 817. Medical evidence is typically presented through expert testimony.

Even though criminal responsibility is not an element of any offense, because the Commonwealth bears the burden of presenting sufficient evidence for a rational fact-finder to find criminal responsibility, a defendant may now seek a required finding of not guilty on the ground that the Commonwealth presented insufficient proof. Id. at 812. A motion for a required finding on that basis can be raised only at the close of all evidence, however, because practically speaking, evidence of such a defense is typically first offered during the defense’s case, after which the Commonwealth is permitted a full opportunity to rebut any such defense. Id. at 816-817. The circumstantial evidence of sanity described above is generally sufficient to overcome a motion for a required finding except when a defense expert’s view of the evidence shows the Commonwealth’s argument for sanity to be “incredible or conclusively incorrect.” Id. at 817-818.

Just six days after deciding Lawson, the SJC applied its new framework in Griffin. Although the Court affirmed the defendant’s first degree murder conviction for killing his young daughter, in analyzing whether the Commonwealth had met its burden of proving criminal responsibility, the Court first highlighted the Commonwealth’s lack of medical expert testimony. Griffin, 475 Mass. at 855-856. This is noteworthy not only because the defendant had not presented an expert (though he had secured funds to hire one) but also because the circumstantial proof of sanity appeared overwhelming. The Commonwealth’s evidence in Griffin mapped perfectly onto the categories identified in Lawson. It showed that the defendant: acted normally in the days leading up to the killing; before the crime, prepared a last will and testament and left a note at his home apologizing for his “sins” and asking for God’s mercy; had a strong motive for the killing, which he had discussed with others; carefully planned the killing, including assembling all the necessary materials, choosing to walk to minimize the sound of his approach, turning off the electricity to the house and taking off his shoes upon his arrival to reduce the chance of being discovered, and cutting telephone lines to eliminate calls for help; and methodically cleaned the basement crime scene and repacked his materials after the murder. Id. at 856-857. The defendant’s only evidence of lack of criminal responsibility consisted of self-serving pre-trial statements in which he had claimed that God told him to commit the murder (even though there was no indication he was deeply religious or possessed religious materials) and had described the severity of his mental illness (descriptions which were proven by evidence at trial to be overstated). Id. at 857. By highlighting the Commonwealth’s absence of a prosecution expert in these circumstances, Griffin raises the question whether the prosecution should consider using an expert even in the cases that seem to least warrant one.

The Court clarified that a prosecutor may properly address in closing argument the inferences to be drawn from circumstantial evidence and inconsistencies in the defendant’s evidence as that evidence bears on criminal responsibility; in so doing, he or she “does not testify as an unqualified expert witness.” Id. at 860. The Court also clarified that Lawson’s elimination of the instruction on the presumption of sanity was not merely a prospective change. The Court concluded that the instruction had been erroneously provided in Griffin, but that it had not created a substantial likelihood of a miscarriage of justice where “the trial judge strongly and specifically instructed that the burden is on the Commonwealth to the prove criminal responsibility beyond a reasonable doubt” and where “substantial evidence” supported the jury’s finding of criminal responsibility. Id. at 862-863.

Although Lawson’s and Griffin’s affirmation of the convictions might suggest it will be business-as-usual in criminal responsibility cases despite the Court’s shift, the cases raise several important questions. First, what quantum of proof will be necessary for a defendant to sufficiently raise “some evidence” of a criminal responsibility defense, particularly if the defendant presents no direct medical evidence or testimony (whether because expert testimony cannot be secured or perhaps because no previous treatment or diagnosis exists) and relies solely on arguably self-serving statements to sustain the defendant’s burden of production? Second, under what circumstances may a defense expert’s testimony show the Commonwealth’s evidence to be “incredible or conclusively incorrect” and thereby insufficient to overcome a motion for a required finding of not guilty? One can imagine a situation in which an expert testifies that the inferences argued by the Commonwealth are invalid given the defendant’s diagnosis and that the circumstantial evidence presents normal or expected symptoms of the claimed mental illness. Finally, what differences may exist between sufficient evidence to sustain the Commonwealth’s burden of proof of criminal responsibility under the familiar Latimore standard—viewing all evidence and resolving all inferences in favor of the Commonwealth—and what may be necessary to establish “substantial evidence” of criminal responsibility in pre-Lawson cases where the presumption of sanity instruction has already been provided?

The Commonwealth will need to evaluate carefully whether to call an expert in any case that raises a potential criminal responsibility defense. Despite the Court’s assurances in both cases that “the Commonwealth need not offer expert testimony in every case,” Lawson, 475 Mass. at 807; Griffin, 475 Mass. at 855-856, the SJC highlighted in Griffin the lack of an expert for the Commonwealth. That the Court would do so in a case with overwhelming circumstantial evidence of sanity—and no defense expert testifying to the contrary—suggests that the cautious approach for the Commonwealth to avoid the possibility of reversal will be to call a prosecution expert nonetheless. Lawson, 475 Mass. at 817.

Crystal L. Lyons is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office, where she also serves as Captain of the Mental Health Team.  She is a member of the BBJ Board of Editors. This article represents the opinions and legal conclusions of its author and not necessarily those of the Middlesex District Attorney’s Office.


The Unwarranted Secrecy of Criminal Justice Information in Massachusetts

Pyle_Jeff by Jeffrey J. Pyle

Legal Analysis

In the past year, the normally sleepy topic of public records law has caught fire in Massachusetts.  Thanks to extensive reporting by the news media, the public has become aware of widespread problems accessing public records, including questionable denials of access, demands for exorbitant fees, and ineffective administrative oversight.  The Center for Public Integrity has given Massachusetts an “F” grade for its public access to information, and our State Police recently won the 2015 “Golden Padlock Award,” a national “honor” bestowed by Investigative Reporters & Editors to acknowledge “the dedication of government officials working tirelessly to keep vital information hidden from the public.”

As a result of these embarrassments, the legislature is finally giving serious consideration to updating the Public Records Act, G.L. c. 66, § 10, long viewed as the weakest freedom of information act in the country.  House Bill 3665, “An Act to Improve Public Records,” addresses the substantial procedural obstacles to access, including high fees for production, slow response times, and the inability of courts to award attorneys’ fees to requesters who prevail in court.  As of this writing, the bill remains on hold as sponsors consider objections from some cities and towns to its limitations on search fees and copying costs.

Even if this important legislation is enacted, however, significant barriers to access will remain.  Many have noted that the bill does not address the exclusion of the legislature and the courts from the Public Records Act, and the Governor’s Office will be able to continue to declare itself exempt.  Less remarked upon, but of arguably equal significance, the bill does not address the fact that in the last ten years, through statutory enactments and restrictive interpretation of existing law, vast categories of documents concerning the Massachusetts criminal justice system have been removed from public inspection.  These changes have placed the Commonwealth well outside the norm of other states, and deprived the public of crucial information at a time of heightened public concern about criminal justice policies and police misconduct.

This article will focus on three categories of criminal justice records of particular concern.

Arrest Reports, the Investigatory Exemption and the CORI Statute

The Public Records Law, G.L. c. 66, § 10, provides that all records in the custody of covered governmental entities—including state agencies, municipalities, and law enforcement —are presumptively open to the public.  The law also contains numerous “exemptions” to the statutory definition of “public record” that allow covered entities to withhold documents, but places the burden on the government to prove with specificity that an exemption applies.  The exemptions are to be narrowly construed, and where possible, the government must redact sensitive material rather than deny records outright.  See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979).

One exemption allows the government to withhold “investigatory materials,” only if they are “necessarily compiled out of the public view by law enforcement or other investigatory officials” and their release “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.”  G.L. c. 4, § 7 cl. 26(f).  Plainly, this is no “blanket exemption” for all “records kept by police departments,” and it does not permit “every document that may be placed within what may be characterized as an investigatory file” to be kept secret.  Bougas v. Chief of Police of Lexington, 371 Mass. 59, 65 (1976).  Rather, for the investigatory exemption to apply, there must be “specific proof” that the release of a particular record would prejudice the possibility of effective law enforcement.  Because that burden can be established with a showing that release would expose confidential law enforcement techniques or discourage witnesses from coming forward in the future, the conclusion of an investigation does not necessarily eliminate protection.  Nonetheless, courts have ordered the release of citizen witness statements,[i] police incident reports,[ii] and even the interview of a murder suspect,[iii] notwithstanding invocation of the exemption.

The language of the investigatory exemption reflects a legislative intent to balance the legitimate needs of the police against the substantial public interest to know about crime and law enforcement activities.  However, in the last several years, law enforcement agencies have asserted that they need not contend with the narrowness of the investigatory exemption.  They claim that routine police documents, such as arrest reports, incident reports and mugshots are subject to the Criminal Offender Record Information (CORI) statute, G.L. c. 6, § 167 et seq.; that the CORI statute gives police the “discretion” whether to withhold or release such documents; and thus they are “specifically or by necessary implication exempted from disclosure by statute,” in the words of another exemption.

These assertions are incorrect.  While the CORI statute imposes restrictions on the dissemination of “criminal offender record information,” it expressly limits the restriction to information “recorded as the result of the initiation of criminal proceedings.”  G.L. c. 6, § 167.  Routine police documents like arrest reports and mugshots are prepared before and not “as the result” of the issuance of a criminal complaint.  Accordingly, the CORI statute plainly “was not enacted to stop the release of police records,” and does not—“specifically or by necessary implication”—exempt such records from release under the Public Records Act.   This was the analysis of then-Supervisor of Public Records Alan Cote in 2003, in a memorandum deriding a “troubling” law enforcement trend of withholding pre-arrest incident reports under CORI.[iv]

However, in 2010, the Department of Criminal Justice Information Services (DCJIS), which is tasked with implementing the CORI statute, adopted the novel position that the “initiation of criminal proceedings” is not the issuance of a criminal complaint, but rather, the “point when a criminal investigation is sufficiently complete that the investigating officer takes actions toward bringing a specific suspect to court.”  That moment generally precedes arrest and the taking of a mugshot.  The DCJIS later issued a regulation embodying this definition of “initiation.” 803 CMR 2.03(4) and 7.02.  Now, police departments—as well as the current Supervisor of Records—routinely rely on the DCJIS regulations to deny public access to routine police records.

This does not mean that police departments never release arrest reports or mugshots—they often do under another DCJIS regulation that permits, but does not require, the dissemination of CORI records “specifically related to, and contemporaneous with, an investigation or prosecution.”  803 CMR 7.10.  However, when the Boston Globe sought public records concerning the arrests of police officers for drunk driving, police departments almost uniformly relied on the CORI statute to deny the requests.[vi]  Thus, in Massachusetts, reports of arrests—one of the most significant actions the government can take against an individual—are being released only at the discretion of the police, contrary to the strong presumption of openness at the heart of the Public Records Act.

The Boston Globe recently filed a groundbreaking lawsuit challenging the DCJIS regulations and the law enforcement interpretation of the CORI law.  Boston Globe Media Partners, LLC v. Dep’t. of Criminal Justice Information Services, Suffolk Superior Court, No. SUCV2015-01404D.  A decision in the case could affect not only the press and the public, but also attorneys seeking to investigate prior incidents.  If the courts rule in favor of the law enforcement agencies, Massachusetts would become the only state where police are vested with the unfettered discretion over whether and when to grant public access to arrest reports.[vii]

Domestic Violence Records

Massachusetts police departments have long been required to assemble a log of daily arrest reports and keep it open for public inspection.  G.L. c. 41, § 98F.  Journalists use the logs to inform the public about crime in the community and to determine which court proceedings to cover.  But in 2014, the governor signed legislation requiring police departments to exclude from the logs all reports of domestic violence, sexual assault, and the violation of abuse protection orders pursuant to G.L. c. 209A.  Before this change, no type of crime, but for a limited exception, was excluded from public inspection.[viii]  At the same time a different statute, G.L. c. 41, § 97D, was amended to provide that the police must keep all incident reports concerning domestic abuse confidential—that provision had previously applied only to charges of rape and sexual assault.

These changes to the law, included in a larger domestic violence bill, were intended to encourage victims of abuse to report the violence without the risk of embarrassment.  However, the expurgation of the logs can also result in protecting the alleged perpetrators of abuse from publicity, thus arguably removing a deterrent to abuse.  The exclusion also may dampen public awareness about violence in the community,[ix] prevent the public from learning about violence perpetuated by public officials or other persons holding positions of trust, and mask other criminal charges that may accompany domestic violence arrests, such as drug and firearms possession.  While the domestic violence bill did not purport to seal court records (and thus cannot promise true confidentiality to victims), the mandatory exclusion of the information from police logs may hinder the news media’s efforts to learn about crimes in first place.  It may also prevent the public from learning how the police respond to and otherwise handle reports of domestic abuse, thereby creating the risk that the crime could be driven further underground.  This Massachusetts restriction appears to have no equivalent elsewhere in the United States.[x]

Sealing of Criminal Cases

In a celebrated “quartet” of decisions in the 1980s, the Supreme Court ruled that the public has a fundamental right protected by the First Amendment to attend criminal trials and pre-trial proceedings.  One of the purposes of the First Amendment, the Court explained, is to assure “freedom of communication on matters relating to the functioning of government,” and it would be difficult to identify any government function “of higher concern and importance to the people than the manner in which criminal trials are conducted.”  Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980).  Numerous federal courts of appeal have applied the Supreme Court’s reasoning to hold that there is a First Amendment right of access to documents filed in criminal cases.

In 1989, the First Circuit held that a Massachusetts statute requiring the blanket sealing of records of cases resulting in not-guilty findings and other non-conviction dispositions was unconstitutional as written.  Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (1st Cir. 1989).  The court held that records of dismissed or nolle prossed cases may be sealed only upon specific, on-the-record findings that sealing is necessary to effectuate a compelling governmental interest sufficient to overcome the public’s First Amendment right of access to criminal proceedings.  The Supreme Judicial Court followed suit a few years later, ruling in Commonwealth v. Doe that in order to seal such records, the defendant must demonstrate on the specific facts of the case, that “the value of sealing to the defendant clearly outweighs the constitutionally-based value of the record remaining open to society.”  420 Mass. 142, 151 (1995).  The value of open court proceedings is so weighty, and the First Amendment right so strong, that both the Pokaski and Doe courts anticipated that few defendants would be able to seal records under this standard.  Pokaski, 868 F.2d at 506 n. 17; Doe, 420 Mass. at 150 n. 7.

In August 2014, however, the SJC departed sharply from this well-established case law.  In Commonwealth v. Pon, 469 Mass. 296 (2014), the Court decided that the First Amendment does not apply after all, and that henceforth, defendants need show only “good cause,” not a compelling interest, to seal the records of a case ending in dismissal or a nolle prosequiId. at 311-312.  While it remains true that in order to seal these records, defendants must overcome a common-law based “general principle of publicity,” the SJC invited motion judges to abandon the case-specific inquiry required by Doe (and, for that matter, the common law “good cause” test), and instead to “take judicial notice that the existence of a criminal record, regardless of what it contains, can present barriers to housing and employment opportunities.”  Id. at 315-316.  Pon gives great weight to “the compelling governmental interests in reducing recidivism, facilitating reintegration, and ensuring self-sufficiency by promoting employment and housing opportunities for former criminal defendants,” and only the barest acknowledgement of the public’s “general right to know so that it may hold the government accountable for the proper administration of justice.”  Id. at 315 (emphasis supplied).

The SJC’s ruling in Pon once again puts Massachusetts law at the vanguard of criminal justice secrecy, and in sharp conflict with not only the First Circuit’s Pokaski decision but with every other federal court of appeals to have considered the standard for sealing criminal records.  To be sure, the societal goals cited in Pon are important, but the articulated test makes it likely that many more criminal records—including in cases where the defendant admitted to facts sufficient to warrant a guilty finding in exchange for a continuance without a finding—will be shielded from the press and the public.  While acknowledging in a footnote that a “different analysis may be necessary” if “the defendant is a public figure,” the SJC failed to recognize that today’s private figure can be tomorrow’s candidate for election, and it could be highly relevant to voters that a candidate for office once admitted to a crime.  Perversely, the Pon decision also makes it more likely that the public and the media will resort to third-party background check services, which are likely to be less complete and accurate than official court records that are now permitted to be sealed under Pon.

Conclusion

If there is any part of our government that deserves scrutiny by the press and the public, it is the criminal justice system.  More than 130 years ago, then-Supreme Judicial Court Justice Oliver Wendell Holmes wrote: “it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.”  Cowley v. Pulsifer, 137 Mass. 392, 394 (1884).  We are in danger of abandoning that important principle in Massachusetts.

Jeffrey J. Pyle is a partner at Prince Lobel Tye LLP in Boston, where he practices in the fields of First Amendment, media law, and litigation. He is a member of the BBA Council, and previously served as Chair of the Amicus Committee and co-chair of the Civil Rights and Civil Liberties Section.

Endnotes

[i] Globe Newspaper Co. v. Police Comm’r of Boston, 419 Mass. 852, 863 (1995).

[ii] Reinstein, 378 Mass. at 291; Globe Newspaper Co. v. Evans, No. CIV.A 97-4102-E, 1997 WL 448182, at *4 (Mass. Super. Aug. 5, 1997) (Burnes, J.).

[iii] Rafuse v. Stryker, 61 Mass. App. Ct. 595, 600 (2004).

[iv] SPR Bulletin No. 3-03, Nov. 21, 2003.

[vi] Todd Wallack, “Ruling Allows Police to Withhold Officers’ Drunken Driving Records,” Boston Globe, March 11, 2015.

[vii] See www.rcfp.org, last visited September 23, 2015.  According to the Reporters Committee for Freedom of the Press (RCFP), which publishes a 50-state guide to access to public records, there is currently no state where police have unfettered discretion whether to withhold routine arrest reports.

[viii] The earlier exception provides that “any entry in a log which pertains to a handicapped individual who is physically or mentally incapacitated to the degree that said person is confined to a wheelchair or is bedridden or requires the use of a device designed to provide said person with mobility, shall be kept in a separate log and shall not be a public record nor shall such entry be disclosed to the public.”  G.L. c. 41, § 98F (2013).

[ix] After the amendment of G.L. c. 41, § 98F, the City of Waltham noted a significant drop in the overall number of incidents reported in the police log.  See Eli Sherman, “Waltham Police Comply with New Domestic Violence Law; Logs Show Far Fewer Arrests,” Waltham News Tribune, Aug. 28, 2014.

[x] Under California law, the names and addresses of victims of domestic assault may be withheld at the victim’s request.  Cal. Gov’t Code, § 6254.

[xi] Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press–Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); Press–Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).