Charged with Disorderly Conduct and Unlawful Wiretapping

Stemming from the encounter on Saturday, 03/20/2010, with three Hadley police officers, during which I was given a traffic ticket, my camera was seized, and the threat of arrest was renewed, I found a notice in my mailbox on Thursday, 04/01/2010, summoning me to the courthouse in Belchertown on Tuesday, 04/27/2010, to be arraigned on charges of disorderly conduct (M.G.L., c. 272 §53) and unlawful wiretapping (M.G.L., c. 272 §99). A few observations on the summons:
  • As on the traffic ticket, my name on the summons was given as my original name, Eli Cooper, rather than my current name, Eli Damon.
  • The name Judge John Payne appears on the summons. John Payne is the judge who denied my attorney's motion to dismiss the disorderly conduct charge in the West Springfield case. However, Andrew Fischer has assured me that this is an irrelevant coincidence.
  • The unlawful wiretapping charge is associated with State law, not Federal law, as Officer Kuc originally claimed.

Analysis of Charges

Traffic Ticket

The traffic ticket cites M.G.L., c. 89 §11B, which does not exist, and describes my violation as "failure to keep right while being overtaken", which does not constitute a violation of any traffic regulation in the sense in which Officer Kuc interpreted the phrase.

On 04/15/2010, I received a notice in the mail of the hearing I had requested regarding the ticket. The notice indicated a different charge, "KEEP RIGHT NO VIEW", citing M.G.L., c. 89 §4, which requires that "[w]henever ... there is not an unobstructed view of the road for at least four hundred feet, the driver of every vehicle shall keep his vehicle on the right of the middle of the traveled part of the way ..." This requirement is totally irrelevant to the situation since I was "on the right of the middle of the traveled part of the way" and my view was unobstructed. When I called the Registry of Motor Vehicles (which handles all traffic tickets) the next day and asked about the discrepancy, I was told that someone at the Registry had changed the charge because the original charge was incorrect and I got the impression that this was a usual practice. I find it very odd that someone at the Registry would claim to know the correct charge since they did not witness the incident.

In Mitchell Kuc's report on the encounter, (see these, more legible, transcriptions of reports of the 09/12/2009 and 03/20/2010 encounters) he cites M.G.L., c. 85 §11B. which, far from describing a traffic violation that I was committing when he stopped me, is precisely the section that affirms the lawfulness of my behavior.

In his testimony on 09/08/2010, Mitchell Kuc asserted my violation was a failure to facilitate overtaking (Chapter 89: Section 2 of the Massachusetts General Laws).

When I go to court I will have to make sure to get a clear indication from the judge which charge I must defend myself against.

Disorderly Conduct

The disorderly conduct charge is bogus as I describe in regard to the West Springfield charge and as my attorney in the West Springfield case described in his motion to dismiss the charge. The disorderly conduct charge relies on two conditions : (1) that I was creating a hazardous condition, and (2) that my actions served no legitimate purpose of me (the actor). In fact, neither of these conditions hold. (1)

As any reputable source on bicycle safety will point out, controlling a lane, far from creating a hazardous condition, is often essential to avoid creating a hazardous condition. Examples of such sources are: Cyclecraft by John Franklin, which is ­ endorsed by the Smart Cycling, CAN­-BIKE, and Bikeability cycling training programs, the national cycling training programs of the United States of American, Canada, and the United Kingdom respectively (section on lane position), and Bicycling Street Smarts by John Allen, which is ­ endorsed by the transportation departments of Arizona, Florida, Idaho, Ohio, and Pennsylvania as the official bicycle driver's manual of their respective states (section on lane position). Lane control is even taught in literature endorsed by the Massachusetts Department of Transportation (MassDOT) and the Executive Office of Public Safety and Security (EOPSS), namely that of the Same Roads Same Rules program. In particular, see the pages Bicycles Are Vehicles Too, Give Yourself Some Space, Bicyclist Myths, and Motorist Myths.

My behavior clearly did not create a hazardous condition and Mitchell Kuc reported no signs of one. Moreover, my behavior did serve a legitimate purpose, namely to avoid creating a hazardous condition, which I explained to him on several occasions, and which Andrew Fischer pointed out in his letter to Hadley Chief of Police Dennis Hukowicz. Mitchell Kuc's behavior is frustratingly illogical. He states in his report that my purpose, safety, was not a legitimate one. "COOPER travelling down the middle of the travel lane serves no legitimate purpose to him other than for him to exercise his opinion of the law, which he states that the law allows him to do and that it is safer than travelling to the far right." It is hard to imagine that anyone could consider safety not to be a legitimate purpose. In fact, he clearly considers safety to be a legitimate purpose since he cites it as his purpose for repeatedly stopping me, seizing my person and property, threatening me, and charging me with disorderly conduct.

Moreover, the exercise of any explicitly affirmed legal right is automatically considered to be a legitimate purpose. Andrew Fischer explains this legal right very well in his letter to Dennis Hukowicz , and the literature endorsed by the Massachusetts Department of Transportation and the Executive Office of Public Safety and Security provide further reinforcement. Mitchell Kuc even admitted to me verbally on 09/12/2009 that my behavior might have been lawful "but I don't care about the law." He admitted this again in his report on the encounter of 03/20/2010. "In speaking to COOPER, I advised him that I was aware that bicyclists are not restricted to travel only on the right of the road or to a bike path and that I was further aware that bicyclists are entitled all the same rights to a vehicle." His behavior is so illogical and contradictory that he reminds me of the pet store owner in Monty Python's dead parrot sketch.

Unlawful Wiretapping

In the past few years it has apparently become common practice for police officers in Massachusetts (and other states) to abuse the State wiretapping statute in order to retaliate against people who attempt to document other crimes the officers commit while on duty and to consequently suppress and discourage these acts of documentation. There are several flaws with the unlawful wiretapping charge. One flaw, which is not helpful to me but should be mentioned anyway, is the statute itself. The statute does not mention the issue of whether it should be applied when those being recorded do not have a reasonable expectation of privacy nor whether it should be applied to recording on-duty public officials or in public places, in which case there is not a reasonable expectation of privacy. Applying the statute in such cases strikes me as a violation of the right to freedom of the press (and possibly other constitutional rights as well). Unfortunately, the State supreme court upheld the application of the statute to such cases in Commonwealth versus Michael Hyde. However, Chief Justice Margaret Marshall attached a poignant dissenting opinion to the decision.

More relevant to my case is that the statute
does not require the person recording to notify those being recorded of the recording, only that the recording not be secretive. See the definition of "interception" in Paragraph B: Subparagraph 4 and the definition of the offense in Paragraph C: Subparagraph 1 of the statute. In other words, I am only responsible for my own behavior, not for others' ignorance. With the camera strapped to the side of my helmet and hanging two inches from my face it should be totally obvious that I was not being secretive in my recording. (See photographs of my model of camera here and here.) Additionally, I began recording about a half an hour before Officer Kuc entered the scene and I can hardly be blamed for him stepping into the middle of my production. The Michael Hyde decisions says that "[t]he problem here could have been avoided if, at the outset of the traffic stop, the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight." Other defendants have been acquitted of unlawful wiretapping charges because they had held their cameras in plain sight. The principal example is Simon Glick, who was charged with unlawful wiretapping by Boston police officers in on 10/01/2007, when he used a cell phone to record them using excessive force in making an arrest. His charges were eventually dismissed and he has filed a civil rights lawsuit against the officers and the city of Boston.

Follow-up

I sent a civil rights complaint to the Attorney General's office. Alan Jay Rom, who I had spoken to earlier regarding my previous civil rights complaints, responded by phone and gave me the impression that he would help me. He made a phone call to Hadley Police Chief Dennis Hukowicz (as well as one to West Springfield Police Chief Thomas Burke regarding my encounters in West Springfield) but then called me back and denied that I had suffered any civil rights violations and told me that he would not help.

I met with Hadley Town Administrator David Nixon on 04/15/2010. He was very respectful and pragmatic. He did not quite understand the issues but he freely acknowledged this. He showed much interest in learning more about cycling issues but he denied the civil rights issues. I gave him a booklet of information on the relevant points of traffic law and traffic safety, which he accepted gratefully. So the meeting had great teaching value but not much advocacy value. He told me that he could not legally intercede for me and, as I said, he did not seem to appreciate the primary issue anyway.

I met with Bill Newman, an attorney with the American Civil Liberties Union of Massachusetts. As a result of that conversation the ACLU of Massachusetts has agreed to help me, through Bill Newman, to fight the wiretapping charge but not the disorderly conduct charge. He will work with whatever attorney represents me directly.
 
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