Boston Lawyer Blog

SJC to Consider Admissibility of Alleged Victims’ Subsequent Violent Actions

Published on: December 2, 2024 | by Jennifer M. Herrmann

This week, the Supreme Judicial Court will hear argument in Commonwealth v. Andrade, a case in which I wrote an amicus brief on behalf of the Massachusetts Association of Criminal Defense Lawyers. This case addresses an important question about what evidence a criminal defendant can introduce to argue that they were not the first aggressor in a violent altercation.

Twenty years ago, the Supreme Judicial Court decided Commonwealth v. Adjutant, holding that a defendant can offer evidence of an alleged victim’s violent reputation and conduct to prove that the victim, rather than the defendant, was the first aggressor. This holding is one of a few limited exceptions to the general rule barring propensity evidence, or evidence of a person’s character trait to prove that they acted in accordance with that trait. The court in Adjutant decided that evidence reflecting a victim’s propensity for violence, whether or not the defendant knew about that propensity, would help the jury “make an informed decision about the identity of the initial aggressor.”

Andrade concerns a domestic dispute between a father and son. At trial, the court did not allow the defendant—the son—to introduce evidence that about one year after the charged incident, the father assaulted his wife. On appeal, Andrade presents a narrow, but new, question to the court: does the holding in Adjutant that a defendant can introduce evidence of a victim’s violent acts include conduct that happened after the charged incident?

Attorney Ana Muñoz Speaks to Massachusetts Lawyers Weekly About New SJC Decision

Published on: September 13, 2024 | by Ana Muñoz

Attorney Ana Muñoz spoke to Massachusetts Lawyers Weekly this week about the SJC’s decision in Patel et al. v. 7-11 Inc., et al. The Court answered a certified question from the First Circuit about how to address claims by franchisees that they have been misclassified as independent contractors. Muñoz, who wrote an amicus brief in the case on behalf of the Massachusetts Employment Lawyers Association (MELA), noted that in its decision “the SJC also reaffirmed its commitment to ensuring that people are paid for their work by adopting a broad reading of the Wage Act under which a label like ‘franchisee’ will not be determinative.” Read the full story here: Bar sees balance in SJC’s ruling in 7-Eleven case | Massachusetts Lawyers Weekly (masslawyersweekly.com)

Supreme Judicial Court Holds That a Switchblade is Protected Under the Second Amendment

Published on: September 10, 2024 | by Ana Muñoz and Niamh Gibbons

As we recently wrote, states’ firearms regulations have faced legal challenges across the country since the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen, which held that individuals have a Second Amendment right to carry a handgun in public for self-defense. But how does Bruen affect regulations of other weapons besides firearms? Last week, the Supreme Judicial Court (SJC) held that its logic governed whether a switchblade qualifies as an “arm” under the Second Amendment. In Commonwealth v. Canjura, the defendant challenged the Massachusetts switchblade ban. Massachusetts General Laws Chapter 269, § 10(b) outlawed switchblade knives, defined as knives with a spring release device, as well as several other dangerous weapons. Violations of the statute are punishable by up to five years in state prison. In Canjura, the SJC held that the ban violated the Second Amendment under the two-part test the United States Supreme Court set out in Bruen. That means the switchblade band is no longer enforceable.

What is the Bruen test?

Under Bruen, the party challenging a weapons regulation must first show that their conduct falls within the plain text of the Second Amendment and is therefore presumptively protected. If the conduct is protected, the burden then shifts to the government to show that its regulation is “consistent with the Nation’s historical tradition of [weapons] regulation.”

SJC Opinion Addresses Racially-Motivated Social Media Surveillance by Police

Published on: September 9, 2024 | by Tom Miller

In 2018, Richard Dilworth was charged with a variety of firearms offenses after an officer from Boston Police Department’s gang unit sent him a friend request on Snapchat under a false identity and viewed Dilworth’s videos showing what appeared to be guns. In 2022, a judge dismissed the case after prosecutors refused to provide discovery about police practices regarding social media surveillance. The prosecution appealed. This week—almost seven years after the beginning of the investigation—the dismissal was affirmed by a unanimous Supreme Judicial Court in an opinion that addresses a number of important legal issues for criminal defendants.

Over the course of the protracted case, Dilworth, who is Black, made a series of discovery requests aimed at developing a defense of selective enforcement based on race. The defenses of selective enforcement or selective prosecution typically require a defendant to show three things: (1) that a broader class of people than those prosecuted or investigated has violated a law, (2) that the failure to enforce the law across the board was either consistent or deliberate, and (3) that that the decision not to enforce or prosecute was based on a protected class like race. Dilworth accordingly sought information about individuals whose social media accounts police were secretly monitoring; he also requested user icons or bitmojis and the user names for the fake Snapchat accounts used by police, on the ground that these would “demonstrate the demographics of the groups they are trying to infiltrate.”

The judge granted most of Dilworth’s discovery motions, relying in part on the SJC’s landmark decision in Commonwealth v. Long, issued in 2020 during the pendency of Dilworth’s case. In Long, the SJC held that under constitutional guarantees of equal protection, a defendant subject to a traffic stop by police has a right to discovery about police practices in order to make out a selective enforcement claim, as long as the defendant can raise a reasonable inference that the particular stop at issue was motivated by race.

Nine Zalkind Law Attorneys Named in 2025 Edition of Best Lawyers in America

Published on: August 15, 2024 | by Zalkind Duncan & Bernstein LLP

Zalkind Duncan & Bernstein LLP is proud to announce that the following attorneys are listed in the 2025 edition of Best Lawyers in America. Best Lawyers is the oldest and most respected peer-review publication in the legal profession and rates attorneys by conducting exhaustive peer-review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. Congratulations to all!

Inga S. Bernstein – Criminal Defense: General Practice, Criminal Defense: White-Collar, Employment Law – Individuals, Litigation – Labor and Employment

David Duncan – Appellate Practice, Criminal Defense: General Practice, Criminal Defense: White-Collar.

Legal Challenges to New Title IX Regulations Continue—With One Snag

Published on: July 31, 2024 | by Tom Miller

The Biden administration’s new Title IX regulations were scheduled to go into force on August 1 of this year, but have already come under legal attack. We’ve previously covered two successful legal challenges that enjoined the enforcement of the new regulations in certain states. This week, however, other opponents of the regulations—including the states of Alabama, Florida, Georgia, and South Caroline, joined by several private advocacy groups—encountered a setback when a federal judge in the Northern District of Alabama (appointed by President Trump) denied their request for a preliminary injunction. The next day, another Trump-appointed federal district judge in Oklahoma granted a preliminary injunction in a challenge brought by that state. CONTINUE READING ›

Distribution of “Revenge Porn” and Deepfakes is Now an Offense in Massachusetts

Published on: July 15, 2024 | by Niamh Gibbons

Last month distribution of “revenge porn” – nude or sexually explicit photos or videos shared online without the consent of the person pictured – became a criminal offense in Massachusetts, as part of a bill aimed at protecting victims of abuse The Commonwealth became the second-to-last state in the country to outlaw this kind of distribution (leaving South Carolina the lone state without a law specifically addressing this issue). Congress also passed a law in 2022 that allows victims of revenge porn to sue in federal court to recover damages from the person who disclosed the images and to enjoin further sharing. The new Massachusetts legislation closes several legal gaps in state law and contains measures designed to prevent harmful online exploitation.

The typical revenge porn case involves photographs taken by or sent to an intimate partner, who then either shares them with others or posts them online. The term “revenge” porn comes from cases where the images are distributed to get revenge on a former partner by damaging their reputation or to blackmail them. However, people often share such images for other reasons, such as wanting to share an image with friends or for economic gain or entertainment. Because revenge is not always the motive, other terms such as image-based sexual abuse or nonconsensual distribution of intimate images are gaining currency as more accurate descriptions of the offense.

What is criminalized under the Massachusetts statute?

Department of Correction Begins Search for New Commissioner and Should Consider Input from Incarcerated Individuals

Published on: July 12, 2024 | by Lucie Gulino

While the DOC has a rehabilitative mission on paper, it has a reputation for violating the civil rights of its incarcerated population and discriminating and retaliating against its employees. Ten years ago, Zalkind Law sued the DOC for discrimination because the DOC paid a female deputy superintendent significantly less than her male counterparts in the same role and for retaliation based the DOC’s failure to consider her for promotion after she complained of the DOC’s unlawful practices. In 2020, the Department of Justice launched an investigation into the DOC’s treatment of incarcerated people who are facing mental health crises and found the DOC fails to accommodate prisoners suffering from serious mental health issues and instead exposes them to conditions that harm them or place them at serious risk of harm. In 2021, Robert Silva-Prentice and Dionisio Paulino, two men of color, incarcerated at Souza-Baranowski Correctional Center sued the DOC for violating their civil rights under state and federal laws when a group of armed officers retaliated against Black and Latino men at the prison after an altercation between incarcerated men and officers broke out at the prison on January 10, 2020. According to the complaint filed in Massachusetts District Court, these officers—at the direction of then-Deputy Commissioner, Paul Henderson—stormed into Mr. Silva-Prentice’s and Mr. Paulino’s cell and beat, tasered, and kicked them, pulled out their hair, slammed them into concrete walls and a metal doorway while directing racial, ethnic, and sexual slurs at them. There is a jury trial set for August 5, 2024. Additionally, just last year, former corrections officer, Eric Smith, a Black man, prevailed in his discrimination and retaliation case against the DOC in state court and won a jury verdict of $2.8 million. The DOC’s history of violating civil rights makes the selection for a new Commissioner particularly important.

To guide the process of finding a new leader of the DOC, the Healey administration has created a six-person search committee:

Deirdre Calvert, Director of the Massachusetts Bureau of Substance Addiction Services

Legal Challenges to New Title IX Regulations Begin, Blocking Legal Protections for Gender Identity in Education

Published on: July 1, 2024 | by Tom Miller

Title IX, passed by Congress over fifty years ago as part of the Educational Amendments of 1972, begins with a deceptively simple sentence: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Since 1972, the law has been interpreted by the courts, by the Department of Education (the agency charged with implementing the law), and the Department of Justice (responsible for Title IX enforcement in federal agencies). This April, the Biden administration finalized a long-awaited set of new regulations, which will replace those put in place in 2020 under President Trump. Among other provisions, the new regulations radically change the procedures for reporting and adjudicating allegations of sexual misconduct at colleges and universities. The new regulations also make clear that the term “sex” as used in Title IX includes sexual orientation and gender identity. Before the Biden regulations go into force in August, however, they are already coming under legal attack. In June, two federal district courts, one in Kentucky and one in Louisiana, issued preliminary injunctions blocking the enforcement of the new regulations in ten states: Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia.

The plaintiffs included the affected states, plus an association of Christian teachers and a female student-athlete in the Kentucky case, and a group of local public schools boards in the Louisiana case. They primarily challenged the new regulations’ inclusion of discrimination based on gender identity within the ambit of discrimination “on the basis of sex,” with a view to its effects on primary and secondary education. Following the pattern of recent conservative attacks on trans and non-binary people, the plaintiffs objected to how the inclusion of gender identity would require public schools to allow students to use bathrooms and to play on sports teams associated with their gender identity, as well as potentially mandating that teachers and classmates use the pronouns used by a student themselves.

Legislature’s Expansion of Abuse Prevention Orders Raises Concerns of Vagueness and Confusion

Published on: June 26, 2024 | by David Russcol

As part of a bill broadly aiming to protect victims of abuse, including revenge porn and deepfakes, the Massachusetts legislature recently enacted an amendment to the restraining order statute that may have substantial unintended consequences. Although the well-intentioned provision allows a person suffering from “coercive control” to seek an abuse prevention order, there are numerous undefined or poorly-specified terms that are likely to create confusion in the courts. In addition, the amended statute may allow children to obtain restraining orders against their parents for normal parenting decisions, surely not what the General Court had in mind. CONTINUE READING ›