FALL RIVER, MASS. (WPRI) – A Fall River man has been charged with violating the Massachusetts wiretapping statute for recording a police officer talking on his cell phone and cursing while working a street detail.
George Thompson, 51, of Fall River, faces one count each of unlawful wiretap and resisting arrest stemming from the Jan. 6 incident.
According to a review of an arrest report as well as interviews with Thompson and a police official, there is no dispute about whether the arresting officer – Thomas Barboza – was talking on a cell phone and swearing while he worked a construction detail. The officer was disciplined for violating departmental policy, according to the police chief.
But the arrest report states Thompson was “secretly audio taping” the officer by attempting to conceal his phone, and that in doing so broke Massachusetts law.
Thompson claims the phone was in plain view and he was not trying to hide his efforts, noting that the whole incident took place on a public street.
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“I’m sticking [the phone out] with my arm fully extended sitting on the porch,” Thompson told Target 12. “With my arm fully extended, I’m videotaping him.”
Thompson – who spent a night in jail after the arrest – said Officer Barboza confiscated his iPhone. A review of the video would likely clear up the issue of concealment, but Fall River Police Chief Daniel Racine said the iPhone was erased while it was in an evidence room at the police station. They have issued a warrant to Apple Inc. to find out how the phone was reset.
“If a Fall River police officer erased that video, he’s fired and I would suspect the district attorney would take out charges,” Racine said. “If any other individual did that, we will take out felony charges.”
An iPhone can be wiped out remotely in the event it gets lost or stolen, but Thompson denied that he did so, saying he gave his password to police so officers could retrieve the video to use in his case.
“I wanted the police to see it, I wanted everybody in the city to see it,” Thompson said.
Last month Thompson filed a complaint with the police department over Barboza’s conduct while in uniform.
Chief Racine confirmed he disciplined Barboza for talking on his phone during a construction detail and swearing with people in earshot.
Barboza was suspended without pay for one day and forbidden to take lucrative detail work for another 15 days, according to Racine.
“If they are working a construction detail they need to be focused on the construction, focused on the traffic, focused on the pedestrians and ensuring that the construction workers are safe,” Racine told Target 12.
But the chief is standing by his officer for arresting Thompson.
“I think we all have our basic rights,” Racine said. “I think people should not record others surreptitiously or secretively.”
‘I’m video taping you’
Thompson said he was sitting on his porch the morning of Jan. 6 reading the newspaper when he spotted Officer Barboza talking loudly on his cell phone.
“Every other word out of his mouth he’s dropping the F-bomb,” Thompson said. “This is going on 10, 15 minutes.”
According to the arrest report, Barboza claimed that while working the construction detail he “called a work associate to check on his welfare.”
Thompson said he had seen enough when an elderly woman passed by the swearing officer.
“I said to him, ‘Why don’t you cool it with the language there?’” Thompson recalled. “He says, ‘Why don’t you shut the [expletive] up and mind your own [expletive] business?’”
The arrest report makes no mention of that alleged exchange.
Admittedly annoyed, Thompson said he pulled out his iPhone and turned on the camera to record the officer, who continued his phone conversation.
Barboza said he spotted Thompson sitting on his porch “by chance,” according to the arrest report.
“Thompson had a cell phone, as if just resting, holding it close to his body in front of his middle chest area,” Barboza wrote. “At this time Thompson shouted out to me, ‘That’s right, I’m videotaping you!’”
Barboza wrote that he ended the phone conversation and approached Thompson. Thompson said the officer exploded in anger.
“He comes running up the stairs to me looks right into the camera and says, ‘You [expletive] welfare bum, I’m arresting you,’” Thompson said. “I actually thought it was a joke.”
According to the arrest report, Barboza said Thompson fought back when the officer attempted to handcuff him.
“In attempting to placed [sic] the cuff on the right wrist, he resisted pulling his hands apart,” Barboza wrote. “Thompson was at the time holding his video taping phone in his right hand. I then knocked the phone from his hand and pushed him onto the porch floor.”
Thompson said he had a second phone he was using to call the police department asking that a sergeant respond to the scene to oversee the arrest. Two other officers eventually arrived.
Thompson pleaded not guilty at his arraignment the next day. He has another court date on March 13, and he said his lawyer is going to request that the charges be dropped.
Chief Racine said the charges have nothing to do with an officer being recorded and that he would arrest anyone for violating the state’s wiretap statute if police could prove a conversation was secretly recorded.
“You cannot surreptitiously record people, people – not public officials – in Massachusetts,” he said. “That’s the state of the law.”
Thompson said he doesn’t regret recording the officer and believes he was within his rights to do so.
“I regret not having a program that would have saved that video,” he said. “I’m going to be a troublemaker with this – and with this city – until this is investigated right.”
Thompson has hung a sign on the side of his residence that states “Bad cop, no donut,” with Barboza’s badge number.
Two high-profile court cases may have an impact on what happens to Thompson, and both boil down to whether the phone was concealed or not.
In 2008 the 1st Circuit Court of Appeals ruled that the First Amendment rights of a lawyer were violated when he was charged for openly recording the arrest of a teenager in Boston.
But Chief Racine said he’s confident that if the evidence proves Thompson hid the phone, the charges will be upheld because of another court ruling.
A 2001 Mass. Supreme Judicial Court decision found a Braintree man violated the law when he secretly recorded an Abington police officer during a traffic stop.
Massachusetts is one of a dozen “two-party” consent states that prohibit the surreptitious audio recording of someone else. Most other states – including Rhode Island – are “one-party” consent states, where only one person needs to know about the recording device.
When asked what he would say to people who wonder if what transpired was an abuse of power, Racine said his officer was simply following the law and suggested those who see it otherwise need to get lawmakers to change it.
He said he supports the law as it stands now.
“Can you come in here and record me off-the-record surreptitiously? Where does it end?” Racine said, adding it doesn’t matter that the Thompson incident happened on a public street. “I think we have a right not to be recorded secretively. That’s my position. That’s the position of the Commonwealth of Massachusetts as well.”