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

Articles Posted in Civil Rights/Civil Liberties

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“This court is very concerned about the disparate impact automobile stops have on persons of color and the national statistics on the fatalities suffered by such communities at the hands of police officers,” wrote Justice Cypher in a fractured plurality opinion for the Supreme Judicial Court in Commonwealth v. Sweeting-Bailey last month. Despite this acknowledgment, the majority of the SJC justices agreed to grant police officers power to continue targeting communities of color and low-income neighborhoods as it confirms that police officers can consider subjective factors in deciding whether to search a passenger in a stopped car.   

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option-2-scaledOn Friday the Supreme Judicial Court handed employees a decisive victory, holding in Meehan v. Medical Information Technology, Inc. that employers cannot retaliate against employees who exercise their statutory rights to file rebuttals in their personnel record. In so holding, the SJC overturned a decision of the Appeals Court from earlier this year (which we discussed on this blog). The Appeals Court had held that while the state’s personnel records law gives employees the right to submit written responses to documents in their personnel records with which they disagree, because the Legislature did not write a provision prohibiting retaliation for exercising that right, an employer could fire the employee for submitting such a rebuttal.  

 The SJC overturned the Appeals Court. In an opinion written by Justice Kafker, the Court held that a termination in retaliation for an employee exercising their rights under the personnel records statute violates the Commonwealth’s public policy. While Massachusetts is generally an “at-will” employment state—meaning an employer has the right to terminate an employee at any time for (almost) any reason—there are statutory exceptions to that rule. An employer cannot fire an employee for discriminatory reasons, or because the employee engaged in certain protected activity, like making complaints about discrimination, health and safety issues, or equal pay issues. Where there is no statute preventing an employer from terminating an employee, the only common law constraint on employers is that they cannot terminate an employee for reasons that would violate a public policy. As Justice Kafker noted in his opinion, the Court previously held the public policy doctrine has been recognized “for asserting a legally guaranteed right (e.g., filing a worker’s compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury)” and for employees performing important public deeds. When an employee’s actions fall under one of these categories they are protected from termination. 

 In Meehan the Court held that the rights created by the public records law fall under the first category of the public policy exception to the at-will employment rule: when an employee files a rebuttal in their personnel record they are asserting a legally guaranteed right. In coming to this decision, the Court noted that the Appeals Court had weighed whether the statutory right set forth in the personnel record law was “important.” While the Appeals Court had concluded it was not, the SJC disagreed. The Court held that “the right of rebuttal and accuracy of information in personnel files” is important for employees to protect their ability to seek other employment, for future employers to have accurate information about the people they hire, and for evaluating employers’ compliance with Massachusetts laws. More importantly, however, the Court held that whether a right is “important” is not a decision a Court should make determining whether an employee was terminated in violation of public policy for asserting a legal right. The Court stated that by passing the personnel record statute, the Legislature had already made the decision that the right is important. This holding will extend beyond the context of the Meehan case; where the Legislature has created a statutory right, Meehan should be read to mean that the exercise of that right will always be protected from retaliation under the public policy exception, even if the statute itself does not contain an anti-retaliation provision.   

Blog-pic-1“Where the police have observed a traffic violation, they are warranted in stopping a vehicle.” The Supreme Judicial Court made this statement more than thirty years ago, summarizing what came to be known as a basic premise of operating a motor vehicle in the United States. 

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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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