News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Articles Posted in Civil Rights/Civil Liberties

Body-cam-pic-3-scaledThe use of body-worn cameras by the Boston Police Department has sparked controversy since its pilot program in 2016 and its official implementation in 2019. While the City and the Police Department have marked this move as an effort to be more transparent with the community, citizens claim that such a goal of transparency cannot be achieved within a broken system. Boston Police Department has equipped more than 1,000 officers over the city with body cameras, yet there have been minimal compliance checks and investigations into the misuse of these cameras and footage. Instead, there are a handful of loopholes that permit officers to use the footage at their discretion, putting civilians’ lives at risk for privacy invasion. To further complicate the limitations police officers have in using their body-worn camera footage, the official Body Worn Camera Policy of the Boston Police Department contains ambiguous and few rules regarding the improper use of footage. In Sec. 4.2 of Rule 405, the department enumerates five improper uses of body-worn camera footage; none of which emphasizes a civilian’s privacy nor prohibits the use of the footage for other cases than the one from which the footage originated. 

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david-von-diemar-jM6Y2nhsAtk-unsplash-scaledA recent Supreme Court case has reaffirmed the rights of individuals against unreasonable government searches and seizures after the First Circuit attempted to expand an exception to the Fourth Amendment. Last year, in Caniglia v. Strom, the First Circuit Court of Appeals (which includes Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) identified a new exception to the Fourth Amendment protection against unreasonable searches and seizures in the home. In the case, police searched a house and seized the owner’s firearms without a warrant and claimed they were allowed to do so because their intent was  to protect against “[t]hreats to individual and community safety.” The First Circuit agreed, finding that the search fell under the “community caretaking exception” to the Fourth Amendment’s warrant requirement. In May, the Supreme Court unanimously rejected the First Circuit’s attempt to expand the “community caretaking exception” in a victory for civil liberties and the rights of individuals against unreasonable government intrusions. 

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Text messages have replaced the old-fashioned phone call: Since 2014, Americans under 50 reported preferring text messages to talking on the phone. American adults under 45 send and receive an average of 85 texts per day. Many people, then, treat texts like talking. But even though the government might need a warrant to intercept your phone call, as of this week, in Massachusetts, the government can read and use your texts that they obtain from someone else’s phone.   

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This is Part 2 in a series. You can read Part 1 here. 

I previously detailed how existing anti-discrimination law is insufficient to protect employees and students who wear their hair in natural or protective styles from discrimination. A national campaign called the CROWN Act, has built an impressive coalition of organizations in support of legislation to remedy this problem. In the last two years, eleven states and a handful of cities and counties have passed this type of legislation. Massachusetts Representative Ayanna Pressley introduced a federal CROWN Act in Congress in December of 2019.  CONTINUE READING ›

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This is Part 1 in a series. You can read Part 2 here.

Last week Jon Oliver took a deep dive into Black hair, and the barriers people with natural and protective hairstyles face in the workplace, in schools, and elsewhere. His segment highlighted stories of a woman who was not hired because she wore her hair in locs, twins here in Massachusetts who received detention and were banned from prom because they wore their hair in braids, and an Ivy-league alumnus who sent a vitriolic, racist letter to his college because a football player for the college wore his hair in locs. Over the weekend news broke that a high school softball player in Durham was forced to cut her beads out of her hair in the middle of a game if she wanted to continue playing. While there has been a growing movement in the last two years for states, cities, and towns to pass versions of the Creating a Respectful and Open World for Natural Hair (CROWN) Act, thus far Massachusetts has not passed any legislation on this issue. Because our current laws do not adequately protect against such discrimination, a legislative fix is necessary.   CONTINUE READING ›

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In a landmark decision published last week, Massachusetts Coalition for the Homeless v. Fall River, the Massachusetts Supreme Judicial Court (SJC) struck down G.L.c. 85, § 17A (often referred to as the anti-panhandling law) as an unconstitutional restriction on protected speech. This decision was hailed as a victory by community organizers and people who are houseless, who have long criticized the law for effectively criminalizing houselessness and poverty.

Section 17A imposed criminal penalties for any person who “signals a moving vehicle on any public way or causes the stopping of a vehicle thereon, or accosts any occupant of a vehicle … for the purpose of soliciting any alms, contribution or subscription or of selling any merchandise.” (emphasis added). However, the law permitted the same conduct for other purposes, like selling admissions tickets and newspapers. The law also explicitly exempted from regulation this same conduct when performed on behalf of a non-profit organization with a police permit. The law imposed a $50 fine for violators.

Plaintiffs John Correira and Joseph Treeful are both houseless and members of the Massachusetts Coalition for the Homeless, an organization that advocates for housing justice and provides direct services and assistance to people experiencing houselessness. Like many people who are houseless, Mr. Correira and Mr. Treeful sometimes stand on public streets and ask motorists and passersby for donations in order to survive. Between 2018 and 2019, the Fall River Police Department charged the two men with more than forty violations of Section 17A. Both Mr. Correira and Mr. Treeful have previously been incarcerated as a result of these charges.

MA-SJCThis week, the Massachusetts Supreme Judicial Court (SJC) issued an opinion in Commonwealth v. Lougee holding that its orders delaying trials due to COVID-19 allow the Commonwealth to hold defendants pre-trial beyond time limits set by statute. The decision applies to pre-trial detainees being held either on grounds of dangerousness under G.L. c. 276, §58A, or after violation of conditions of release under G.L. c. 276, §58B. Both statutes put time limits on how long a defendant can be held in jail without trial: 180 days under section 58A and 120 days under section 58B.  The SJC decision addressed three cases: two in which the defendants were found dangerous and held under 58A, and one in which the defendant violated release conditions and was detained under 58B. In all three cases, a trial judge found that because the defendants had been detained for the statutory time limits, they had to be released. The trial judges did not find that the SJC’s orders postponing trials due to COVID-19 affected the calculation of time limits set by sections 58A and 58B. The Commonwealth appealed and the SJC reversed.

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By: Leah Durst, Legal Internblogger-336371_1920

Former California Congresswoman Katie Hill recently resigned after sexually explicit photos of Hill and a staffer engaged in consensual sexual activity were leaked, allegedly by her abusive ex-husband. Her resignation should trigger broader discussions about the consequences of living in a digital age: how do we view and treat victims and perpetrators of “revenge porn”?  What legal rights are there for people whose sexual privacy has been invaded, and what legal consequences are there for those who access and distribute such material? It turns out that Massachusetts is one of the last states to take up this question at the legislative level. 

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Last week, the Alliance Defending Freedom (ADF), a Christian organization purporting to focus on religious liberty issues, filed a complaint with the Department of Education’s Office for Civil Rights (OCR) on behalf of three female high school athletes in Connecticut. The complaint alleges that the three Complainants—cisgender elite track athletes—are being discriminated against because the Connecticut Interscholastic Athletic Conference (CIAC) permits transgender female athletes to compete in girls’ sportsThe ADF has a history of instituting suits on behalf of cisgender students, arguing that recognizing transgender students’ gender identities harms their cisgender peers. 

Although courts around this country have made clear that being transgender does not make someone any less a girl in the eyes of the lawthe ADF Complaint  consistently and incorrectly refers to transgender female athletes as “boys” and argues that allowing these boys to compete against girls violates girls’ rights to equal athletic opportunities. The Complaint sets forth statistics about male and female athletes to show that in almost every sport male athletes would beat female athletes if they competed head to head. It then argues: “the CIAC permits males with all the hormonal and physiological advantages that come with male puberty and male levels of testosterone to enter and win in girls’ athletic competitions of all sorts, without any exceptions.”  

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Police-lightLast week, the Supreme Judicial Court reaffirmed that in Massachusetts, evidence unlawfully obtained from a police search will be excluded in criminal trials even in cases in which the police had good reason to believe the search was legal. That ruling buttresses a longstanding difference between federal law and Massachusetts law. In federal court, prosecutors can insulate police errors by arguing the police had a good faith basis to use an illegal tactic, and therefore evidence should not be suppressed. Not so in Massachusetts – at least for now.
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