by Lenny Cavallaro, D.M.A.
Most Americans assume they are guaranteed certain protections under the law. Above and beyond the statutes that govern the individual states, they point proudly to the Constitution, that venerable document, complete with its “Bill of Rights” and other Amendments. Unfortunately, as I learned first-hand, the laws of the state and even the Constitution itself can be tossed out the window at the whim of a judge, particularly when the police are involved.
The nightmare I describe below is real, and while the case itself is closed, I hope that readers will take note of how easily my “rights” were flushed away. I consider myself most fortunate, since I was not killed, brutally beaten, or imprisoned under false pretenses – things that happen routinely, particularly to the minority populations. Nevertheless, I feel that the general trend and perverse interpretations of “law” in this country merit careful consideration.
Consider a hypothetical situation: A contractor hires a painter, who dutifully goes up on the scaffold and begins to work. Unfortunately, the employee gets a little sloppy and accidentally knocks the paint bucket off the scaffold, causing injury and property damage to a passer-by. It is reasonable to expect the victim to file litigation not only against the painter (who may have virtually no assets and be working for rather low wages) but also against the contractor (who presumably has “deeper pockets”).
However, if the employer is a city or town – i.e., a municipality – and the employees in question are members of the police force, it is quite likely that the victim of a criminal act may be unable to seek redress of grievances. Various rulings have led to a concept of “sovereign immunity,” both de facto and de juris.
In principle, this runs contrary to the Constitution, specifically the 1st Amendment. In addition to freedom of assembly, press, religion, and speech, the 1st Amendment also guarantees the right “to petition the Government for redress of grievances.” This effectively even provides the right to sue the government in cases of overreach by the government in question.
Well, not quite! In 1961, the U. S. Supreme Court issued a remarkable ruling in Monroe, et al. v. Pape, et al. Chicago police had illegally raided the Monroe home, ostensibly to investigate a murder case. They reportedly ransacked the dwelling, damaging property, emptying drawers out on the floor, overturning beds, etc., before taking Mr. Monroe to the station. He was not allowed to contact his attorney but was eventually released. When he sued the police and the City of Chicago, the latter claimed exemption, and the highest court in the land upheld the claim and dismissed the action against the municipality.
This ruling was partially reversed in 1978 with the ruling on Monell v. Department of Social Services of the City of New York. The justices did not overturn Monroe, but ruled that it may be possible to sue a municipal government for illegal acts under certain circumstances.
The problem is obvious. There is a “gray area” somewhere between Monroe and Monell, and much is left up to the discretion of a judge. Sadly – and particularly if the judge is a Republican – issues involving civilians vs. the police may be thrown out, simply on the grounds that the judge feels that “Monell exclusions do not apply.” That is exactly what happened to me.
I wear many hats professionally, but among these I have a small therapeutic practice in which I utilize various alternative modalities (primarily hypnosis and reiki). In 2013 I began working with a client who soon became a close friend and colleague. I saw her occasionally in my home as well as in my office. I did not charge her for any visits to my place of residence, since I considered her a guest.
My colleague, a psychoanalyst by training, had become fascinated by the work of Wilhelm Reich, an early follower of Freud who soon went off in his own direction. Reich has his adherents and followers to the present day, and many believe in some of his principles, including that our repressions may result in a “body armoring,” and that screaming may help break down some of the armor, resulting in the recovery of repressed emotions.
Among the techniques I occasionally used was trigger-point massage. Trigger-points can be quite painful, so we instruct clients to think in terms of a pain-scale from one to ten. Anything at seven or below is acceptable, but the therapist should reduce pressure if the client indicates the level is above that figure.
My colleague asked me to apply additional pressure if a point proved painful. Her idea was that this might invoke screaming, which could then bring up repressed memories.
At the time I lived in the main house of Veasey Memorial Park, a huge, sprawling building owned by the Town of Groveland (Massachusetts/USA) and administered by the Groveland Conservation Commission. There is but a single apartment in the building, although there are a number of offices as well as large rooms rented out for various social functions. Naturally, it was only possible for my client to “vocalize” (i.e., scream) if no one else was in the building.
Through the first six months of 2013 Veasey had an excellent events coordinator, who always informed me of the schedule. If any part of the building was in use when my client visited, we would have to keep the noise down, but if the rest of the building was vacant, she was free to scream – as she did on two other occasions.
Unfortunately, that coordinator was fired, and her replacement took over during July. On 17 July, my friend asked whether she could drop by between 3 and 5 PM. I met with the new events coordinator, Dannielle [yes, that’s how she spells it!] Ingraham, explained the entire situation, and asked whether the building would be in use. She assured me that she was leaving at 2 PM, and that no one would be in the building before 6 PM. Indeed, when my guest arrived, my car was the only vehicle in the parking lot, and the door to Ingraham’s office was locked.
What I did not know was that Ingraham had had her son drop by to remove her car, while she had locked her office and gone into another room in the building. When the “vocalization” began, she recorded the screams on her cell phone. She later played the recording to Michael Dempsey, Chairman of the Conservation Commission (my de facto landlord) and Jeffrey Gillen, Deputy Chief of Police. On 30 July I was ordered to leave the building by midnight, 31 August. No explanation was given. The next morning, I was called down to an office and confronted by Gillen and another police officer.
Massachusetts General Laws (MGL) offer numerous protections from such recordings. Massachusetts is, in fact, a “two-party consent” state, which means that it is illegal to record a conversation, telephone call, or other “oral communications” without the consent of all parties involved, save when such recordings are part of normal business procedures (e.g., calls to insurance companies). The specific statues:
- Chapter 272, Section 99, Paragraphs C (1) states: “Interception, oral communications [is] prohibited.”
- Chapter 272, Section 99, Paragraph B (2) notes that ”oral communication” means any speech, except such speech as is transmitted over the public airwaves by radio or other similar device.
- Chapter 272, Section 99, Paragraph C (2) defines all terms, and the definitions are consistent with my claim.
- Chapter 272, Section 99, Paragraphs C (3) adds that: “Disclosure or use of wire or oral communications [is] prohibited.” Moreover,
- Chapter 214, Section 1B states that “[a] person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such rights and in connection therewith to award damages.”
One might at least have expected the police, who are sworn to uphold the law, to have admonished Ms. Ingraham that her conduct was illegal. Instead, the police grilled me for considerably over an hour and one-half. At the time I could not afford to retain an attorney, and initially I had no idea what they were talking about, since they indicated that something had happened at night (not afternoon) and gave me a date that had no possible connection with the incident. Indeed, this was almost a page out of Kafka’s The Trial; I was being interrogated about a crime, but they would not tell me what the crime was! With great difficulty I eventually squeezed out the correct information and immediately explained the situation. I also gave them the name and number of my client (whom one cop reached, and who corroborated my story in all details!).
However, they were not finished: They now “needed” to see the inside of my residence. Of course, they didn’t have a warrant, so this was a completely illegal search and contrary to the 4th Amendment of the Constitution. However, they found an easy way to coerce cooperation. I would have to accompany one cop back to the station, while the other would “try” to get a warrant from a judge – a task that might take another five hours. I also now realized that as soon as I was in police custody, the other cop would simply get the management to open up my apartment and conduct a search anyway, with or without the warrant. I had no choice, so I let them in.
They found nothing, of course, but went through drawers, kitchen shelves, and even searched under the bed. My question – what did they seek? – went unanswered.
Deputy Chief Gillen now told me I was “free.” I would be able to pick up a police report the next day, and he would “try to make a copy of the recording as quickly as possible.” I got the report. However, I would never hear the recording, because they had already returned the phone to Ingraham!
Months later I filed a criminal complaint against Ingraham only. This, I felt, was a “sure thing,” and would give me “satisfaction,” since I couldn’t really cite “damages.” Unfortunately, when I arrived at Haverhill District Court for a “probable cause hearing,” I found both Ingraham and Gillen there.
The clerk magistrate was the late Edward Fitzgerald – a man who had never attended law school but would rule on my case. He listened to me and Ingraham, and asked Gillen for a statement. That gave me the opportunity to query the latter:
“You were investigating what you called ‘possible domestic abuse,’ yet the alleged incident had taken place two weeks earlier. Given that there are usually at least two police cars patrolling the town, and given that Veasey has a landline right in Ingraham’s office, let me ask this: If Ms. Ingraham had simply kept recording on her cell phone and called you on the landline, what is the most time it would have taken to get police to the scene, even from the station?”
Gillen answered, “Maybe three minutes.”
“And if this might indeed have been domestic abuse, shouldn’t she have notified the police immediately, rather than two weeks after the fact?”
Gillen never answered, because Ingraham interrupted! “I didn’t think it was domestic abuse,” she declared. “I thought it was some kinky 50 Shades of Grey!”
I turned to Fitzgerald. “And this gave her the right to record me, and him to search my apartment for whips and chains – in violation of State law?”
Fitzgerald thanked us for coming and directed Ingraham, her husband, and me to leave the chamber and await his decision. Gillen remained inside. I waited by the door. No one entered or departed for over five minutes, at which time I resigned myself to the inevitable and went home.
As expected, Fitzgerald ruled “no probable cause.” I appealed, but Judge Mary McCabe upheld his ruling without really listening to anything I said. Gens una sumus – “We are one people”!
I did more research and soon realized that I could not pursue a criminal case any further. Justice was denied, despite recent precedents:
Dillon v MBTA 49 Mass App Ct 309 (2000)
Comm v Hyde 434 Mass 594 (2001)
Comm v Manzelli 68 Mass App Ct 691 (2007)
Comm v Mitchell (SJC 11487 June 18, 2014)
Comm v Morgani 455 Mass 388 (2009)
Comm v Rivera 445 Mass 119 (2005)
Comm v Hearns 467 Mass 707 (2014), and a number of others!
My only remedy would have to be a civil action, and this did not look promising, since I had no “damages.” As tenant-at-will, I was entitled to thirty days notice to leave; they had given me almost 33.
I sought legal counsel, and my attorney suggested federal court. He cited Constitutional violations of 14th Amendment (equal protection under the law – but Ingraham clearly had far more protection than I did!), 4th Amendment (coerced search without a warrant), 1st Amendment (denial of due process by police interference), and even 5th Amendment (protection against self-incrimination, although this was weaker).
We filed in Boston Federal Court.
It is virtually impossible to sue the police without suing the municipality. Thus, the litigation read Cavallaro vs. Town of Groveland.
The Town of Groveland filed a motion to dismiss, arguing that Monell exclusions did not apply here, so it was exempt as an incorporated municipality. Unfortunately, the judge appointed to hear the case was Douglass Woodlock, who had been appointed by President Ronald Reagan. Judge Woodlock must certainly have realized that the 4th and 14th Amendment claims were reasonable enough to grant a hearing, but …
The “but” was simple enough. Republican judges tend to side with police against civilians. Period. Does anyone wonder why the number of police convicted of murder or manslaughter in 2014 was zero? In 2015 it was again zero. “The Counted,” a project of The Guardian, reported that 1,058 Americans were killed by police as of 30 December 2016, and while some of those indicted may yet be found guilty, I am not aware of any convictions as of this date (23 January 2017) and do not anticipate any when the final statistics are released.
The bigger question is not really how much money I squandered, but rather whether our laws actually apply at all when the police are involved. The Groveland cops (notably Gillen) favored the “townie” (Ingraham, whose family runs the local Christmas tree farm) over the “outsider” (me), effectively destroyed State’s evidence (by returning the recording), quashed a criminal investigation, and got away with it! The various statutes cited (MGL 272.99) meant nothing to the magistrate or Judge McCabe. Numerous violations of my constitutional rights – certainly 4th and 14th Amendments, and almost surely 1st – meant nothing to Judge Woodlock.
Artists have long portrayed Justice as blind. Is she also deaf, illiterate, and perverse? Because of our failure to “police the police,” the answer is apparently a resounding “yes”!