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.

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.

Family in fatal police shooting demands transparency

Fall River Police Department
Photo by Kenneth C. Zirkel (CC BY-SA 4.0)

At a rally in Fall River, Mass., on January 15, the family of Anthony Harden, who was killed by police in November, demanded transparency in the investigation into the shooting.

News reports state that Harden, 30, became involved in a physical altercation with two police officers trying to arrest him at his home.  Harden was confined to the home with a GPS bracelet while charges were pending in an assault case, WBZ reported in December.  According to police, Harden repeatedly stabbed at one of the officers with a metal object, possibly a steak knife, and the other officer shot and killed him.

Bristol County District Attorney (DA) Thomas M. Quinn III investigated and announced in December that police had complied with the department use-of-force policy, WBZ reported.  But the family has not yet seen the full record of the investigation, the Fall River Herald News reported after the "Justice for Anthony" rally on Saturday, and the family alleges inconsistencies between a private autopsy and the DA's conclusion.

In light of the police accountability movement that erupted in recent years in the United States, my Freedom of Information (FOI) Law seminar in the fall semester took up law enforcement transparency as a special topic.  Sifting the voluminous writing on police accountability in scholarly, NGO, and popular literature, I found, probably unsurprisingly, that lack of transparency is often a volatile fuel of misunderstanding and vehement distrust between people and police in these matters.  Worse, it doesn't always have to be.

At risk of generalizing to the detriment of the many, many police officers and departments that uphold the law with integrity, there remains the conventional wisdom that police are notorious for resistance to transparency.  My own youthful interest in FOI law was spurred by, and, in fact, a factor in my decision to go to law school in the 1990s was, frustration dealing with the Rockbridge County Sheriff's Office when I was a student journalist in Virginia.  

FOI "audits," occasionally carried out by media and NGOs to test state open records compliance, invariably test police, because a characteristic reluctance to comply with the law, ironically, juxtaposes so sharply with the urgent life and liberty interests of persons subject to police power.  The classic tension in this vein is nicely encapsulated by Amy Sherrill's report on police compliance for a 1999 Arkansas audit.  The piece might as well have been written yesterday; secrecy in policing is a persistent devil.

For my October class, besides some introductory material such as the law enforcement exemption in the federal FOI Act (FOIA) (subpart (b)(7)), after which the states have modeled many statutory open records exemptions, I assigned:

• State ex rel. Standifer v. City of Cleveland, 2021 Ohio 3100 (Ct. App. Sept. 3, 2021);
• Emanuel Powell, Unlawful Silence: St. Louis Families’ Fight for Records After the Killing of a Loved One by Police, 57 Am. Crim. L. Rev. 65 (2020); and
  
• Somebody: Police, The Intercept (Apr. 14, 2020) (podcast ep. 3).

There is so much to unpack on this topic that I had to be judicious.  The Standifer case, arising from an investigation into police violence in Connecticut, frames the subject with First Amendment access implications and the balance between police transparency and the rights of persons named in police records, including police officers themselves.

I can't say enough about the Powell article.  An attorney with ArchCity Defenders, Emanuel Powell related a personal and powerful narrative with a well informed and reasoned call for reform.

The entirety of The Intercept podcast, "Somebody" season, is worth the time.  For this class, I chose the "Police" episode, especially for its audio recordings of a mourning mother, Shapearl Wells, desperately seeking answers in the death of her son, and what she faces with police who are sometimes understanding but more often defensive, guarded, and harsh with her.  The audio medium demonstrates, in a way a cold transcript could not, the communicative disconnect between Wells and police, and the insult, however unintended, of unnecessary opacity upon an already tragic injury.  Somebody was a joint project of the Invisible Institute and comes with, especially useful for secondary school, a 10-unit teaching guide. 

There are some fascinating online clearinghouses on police data, such as NGO Mapping Police Violence and the Invisible Institute's Citizens Police Data Project, the latter focusing on Chicago, having begun as a collaboration with the University of Chicago.  The annual program of the National Freedom of Information Coalition (NFOIC) in fall 2021 featured informative sessions on police transparency reform and tracking police misconduct records (latter trailer only).  Tomorrow, I plan to attend virtually a plenary panel of the Communications Law Forum of the American Bar Association, "Racial Injustice Exposed on Camera: Police Transparency and Government Access in a Viral World."

I am open to persuasion on the basis of what I might not know about the investigation into Harden's death.  But on the face of it, I see no reason at this point for withholding investigative records, especially the autopsy.  Law enforcement authorities sometimes fear record release because it might compromise the public's position in seemingly inevitable litigation.  But discovery will bring the evidence to light anyway, and public entities shouldn't get to hold their cards tightly when accountability for lost life is at stake.

It's especially troubling that on the Bristol County DA website, there is, at the time of this writing, not a single mention of Anthony Harden.   The last two press releases from the office, before and after announcement of the conclusion in the Harden investigation, regard sentencing in other matters, touting the DA's success.  The 11-page report on the Harden matter, described by The Herald News, I cannot find online, not at the DA's site, nor from the State Police Detective Unit that conducted the investigation.

So one might understand how the Harden family, and families similarly situation around the country, might worry that the political heads of law enforcement are concerned more with reelection than with justice.  Transparency would not necessarily solve all ills, but it might diffuse tension and enhance public confidence by some measure.