DA cannot shield officer, EMT identities from state FOIA disclosure, court rules in fatal police shooting

A Massachusetts Superior Court in March ordered the district attorney to release investigative records to the family of a man killed by police.

The privacy of public officials in the technology era has strained conventional accountability rationales for transparency. Since the advent of access to public information as a democratic norm, public officials and public figures have decried purported invasions of their privacy. The very notion of privacy in modern tort law, for better and worse, traces its roots to precisely such whinging in the late nineteenth century. Access usually prevailed.

Yet in the technological era, privacy complaints have gained new currency, and some of it is legitimate. Even, or perhaps especially, in the intensely emotional context of high-profile police shootings, interests are amped up on both sides. Of course, victims and families demand understanding and accountability, and they are entitled to it. At the same time, it's harder than ever to be a police officer, and passions that expose public servants and their families to harassment and threats pose a genuine policy problem. 

The two sides collided in Massachusetts over the death of Anthony (Antone) Harden in Fall River in 2021. The 30-year-old was shot twice and killed by police in his bedroom. Police investigators concluded that Harden had used a steak knife to attempt to stab the shooter's partner in the neck and head. A district attorney (DA) investigation in 2022 ruled the homicide justified.

Surveillance video shows officer arriving at Harden's apartment.

With the final report, Bristol County DA Thomas M. Quinn III released hundreds of pages of records, including video, audio, and photographs. But there was much that the DA did not release in response to a freedom-of-information request by Harden's brother, Eric Mack, an attorney. Though the family knew, and the lawsuit revealed publicly, the names of the involved officers by the time of the DA's report, the DA would not disclose their names.

The DA also withheld other records identifying responding personnel, including video interviews with emergency medical technicians. WBUR reported that the EMTs said they did not see the steak knife that police said necessitated lethal force.

Mack sued the DA under the state public records law, and the Superior Court in March granted his request for records on all counts. With regard to the identities of police and EMTs involved, the court wrote:

Upon balancing the rights of the parties, the public's need to access against the privacy rights at issues here, I find that the equities favor disclosure. The public officials here are not acting in the capacity of private citizens but in the course of their duties. Plaintiff has a right to have a full understanding of the facts leading to his brother's death including the identities of the public officials involved to ensure accountability and transparency. The failure to disclose this information would raise questions amongst the public about why this information was being withheld, which would only serve to undermine the integrity of the law enforcement departments involved and those reviewing their conduct. Any right to privacy that a public official might have under these circumstances, which is de minimis under the circumstances presented here, is overwhelmed by the public's right to know.

Before the resolution of the public records case, in January, the Harden family threatened Fall River with a $50m lawsuit for Harden's death, if the records were not released.

The case is Mack v. Office of the District Attorney, No. 2284-CV-00248 (Mass. Super. Ct. Suffolk County Mar. 6, 2023), decided by Justice James Budreau.

McMahon debates incumbent insider in DA race

[UPDATE, Sept. 7, 2022.] With 90% reporting, the N.Y. Times lists Quinn prevailing with 65% of the vote to McMahon's 35%. This result is not surprising with a well known, insider incumbent. McMahon's strong showing as an out-of-the-box challenger will, I hope, keep the DA's office mindful of its accountability to the public. And I hope we'll see McMahon again in politics and public service soon.

Shannon McMahon and Thomas Quinn, candidates in the September 6 primary for Bristol County, Mass., district attorney, faced off August 12 in what South Coast Today described as a "bare-knuckles debate," sponsored by Dartmouth media and available on YouTube, below.

McMahon is a former student of my advisership.  I assessed the race in the spring.

Lawsuit alleges excessive force against federal immigration detainees held near public law school

⚠ Warning: indecent language.

Latino detainees of the Bristol County House of Corrections, which is located just three-quarters of a mile from the University of Massachusetts Law School, sued the county sheriff and Immigration and Customs Enforcement, alleging serious physical abuses.

Filed in April, the complaint, stating Bivens and § 1983 claims for excessive force, is available from the federal district court docket at Court Listener. The factual allegations detail incidents of violence and some not so flattering quotations of officers, such as: "Shut the fuck up. You bitches are a bunch of immigrants without papers. You have no rights."

Sheriff Hodgson shakes hands with former President Trump
at a White House event recognizing sheriffs in 2019.
(Official White House photo by Joyce N. Boghosian via Flickr.)

Named in the lawsuit is Bristol County, Mass., four-term "tough on crime" Sheriff Thomas M. Hodgson. This lawsuit is not his first tangle with unsavory allegations.

A 2020 report by the office of Attorney General Maura Healey determined that authorities employed excessive force in violation of the civil rights of federal immigration detainees (press release). New Bedford, Mass., tort lawyer Betty I. Ussach has written letters to local media complaining of the high cost of defending Hodgson's style of criminal justice (EastBayRI, Dartmouth Week Today).

But in past years, Hodgson's name recognition has seemed to work a no-publicity-is-bad-publicity magic in his reelection bids. Hodgson faces a slate of challengers this year.

I wonder whether the geographic juxtaposition of the Bristol prison and the Immigration Clinic at the state's only public law school is not telling of state conflict-of-interest policy, which would complicate if not prohibit clinic litigation against state and local actors. 

Clinic director Professor Emerita Irene Scharf retired just one one month ago. She exited amid some turbulence over how and even whether the law school would take responsibility for existing clients. It remains to be seen what the clinic will look like under new management. Scharf and sociology and anthropology Professor Lisa Maya Knauer have labored diligently for decades on behalf of the immigrant Latino community in south coast Massachusetts. But university personnel at Dartmouth, Mass., far from the aegis of the "flagship campus" at Amherst, must tread lightly in politically sensitive matters, lest they jeopardize the very existence of the system's less favored locations.

The present lawsuit, Morocho v. Bristol County Sheriff's Office (D. Mass. filed Apr. 29, 2022), was filed by Washington, D.C.-based NGO Rights Behind Bars and signed by its Boston-based litigation director, attorney Oren Nimni. Nimni is a graduate of Northeastern Law and an adjunct professor at Suffolk Law. So let the record reflect that monied Boston private law schools can make grief for public officials, too.

Shannon McMahon for Bristol County, Mass., DA

[UPDATE, Sept. 7, 2022.] With 90% reporting, the N.Y. Times lists Quinn prevailing with 65% of the vote to McMahon's 35%. This result is not surprising with a well known, insider incumbent. McMahon's strong showing as an out-of-the-box challenger will, I hope, keep the DA's office mindful of its accountability to the public. And I hope we'll see McMahon again in politics and public service soon.

Shannon McMahon is running for Bristol County, Mass., DA (press release) and has my wholehearted support (in my personal capacity*).

Attorney McMahon, a former assistant DA, is a colleague, friend, and former student, an alumna of UMass Law School, where I work.  She was editor-in-chief of the newly constituted UMass Law Review in the early days of the Commonwealth's public law school project, in 2011, when I joined the faculty and served as law review co-adviser.  At the same time, she worked as a bartender and raised two children.  Oh, and she finished law school at the top of her class.

I deeply valued McMahon even then more as colleague than advisee; she was, and no doubt remains, bold in tackling problems head on.  Her penchant for plain-speaking was a breath of fresh air in the stultifying environment of public higher ed, especially in staid Massachusetts.

McMahon has been accused of irreverence; what I see in her is a refusal to defer to the status quo, a flat denial that things must be what they are because that's how they always have been.  No surprise, then, that McMahon has made headlines (e.g., The Public's Radio) for stepping out as the first challenger in 16 years to give voters a choice before the dynastic incumbent DA can walk away with a third four-year term.

"Given the dynamics of the community right now, between the drug crisis and the mental health crisis and issues with the police and the community, people are angry and upset that nothing is being done to help with the people's problems, and I think right now, and it's imperative, that people have a choice," McMahon told the Herald News.

Massachusetts can be unkind to people who are willing to topple the apple cart to effect needed reform.  The state's veneer of progressivism is a thin veil for a social and political culture that demands conformity and doubles down on socioeconomic hierarchy.

For that very reason, McMahon is perfect for the job, and I hope she's only getting started.

You too can donate at McMahon for DA.  Save the date for a March 28 event.

*As always, this blog is a product of my personal creation, even if it sometimes serves also to fulfill my responsibilities as an academic in teaching, service, and research, and as an attorney in the Bar of the District of Columbia.  The Savory Tort is neither affiliated with nor within the editorial control of my employer, the University of Massachusetts Dartmouth.  I produced this posting, "Shannon McMahon for Bristol County, Mass., DA," on personal time and with no public resources.