A young man Tisbury police arrested at the Five Corners intersection for unlawful wiretapping and disorderly conduct at an August 25 demonstration by a national pro-business organization, complete with a 25-foot inflatable rat, will face no charges in Edgartown District Court.
Assistant Cape and Islands district attorney Laura Marshard said that the state agreed to drop charges against Caleb Bacon, 20, of New Hampshire. The decision followed discussions with Tisbury Police Chief Dan Hanavan and Mr. Bacon and his lawyer, Dan Larkosh of West Tisbury.
The state’s decision not to prosecute was preceded by a separate agreement worked out among Chief Hanavan, James Morse, a lawyer and Oak Bluffs police officer, Mr. Larkosh, and Mr. Bacon’s father, in which Mr. Bacon agreed to release the police from civil liability in connection with his arrest.
Mr. Larkosh told The Times the father’s primary interest was to conclude the matter and avoid any court record for his son, a college student. Unlawful wiretapping is a felony.
Mr. Bacon said the facts support his claim that his son was unjustly accused. “We’re very happy the charges have been dismissed and that he can now get on with his life without a felony charge hanging over his head,” Mr. Bacon said.
He described his son as “caught in the middle of a miscommunication between the organizer of the event and the police chief.”
“Looking at the legal merits,” he said, “we were surprised the case went as far as it did. Clearly, no laws were broken. A kid was just in the wrong place at the wrong time. We wish someone would have taken the time to look at the case in a holistic manner and realized that.”
Untimely protest
Just after 8 am, August 25, five members of Americans for Job Security (AJS) began inflating a large brown rat with gleaming white teeth on the wide expanse of brick pavement in front of the Vineyard Haven Post Office.
Stephen DeMaura, president of AJS, told The Times the demonstration was to protest an NLRB rules change, made without Congressional approval, that would give unions an unfair advantage through an expedited election process when attempting to organize non-union businesses .
The rat was intended to refer to a May NLRB decision in which the board said union use of an inflatable rat when demonstrating against an employer or secondary business is not picketing or coercive and does not violate U.S. labor laws, according to an AJS flyer.
The demonstration and rat barely got off the ground when police arrived. Police told the men they could not demonstrate on federal property and that the large rat swaying in the breeze and blocking the sidewalk represented a safety hazard at the congested intersection.
Mr. Bacon, a paid volunteer with no connection to the group, stood off to the side and videotaped the ensuing discussion between Chief Hanavan and Mr. DeMaura.
Visibly exasperated with the continuing discussion and resistance to his order that the men deflate the rat, Chief Hanavan ordered Mr. Bacon’s arrest.
The demonstration at one of the Island’s most congested intersections coincided with the vacation of President Barack Obama. The arrest came one day before the First Circuit Court of Appeals in Boston ruled (see related story) that the Constitution protects the right to videotape police officers making an arrest.
Constitutional issues raised
When police arrested him, Mr. Bacon was using a small camera capable of taking high definition recordings. So called smart phones now allow individuals to take high quality video recordings almost anywhere.
In a telephone conversation Tuesday, Joe Onek, a seasonal Chilmark resident and lawyer whose federal government career included most recent service as senior counsel to Speaker of the House, Rep. Nancy Pelosi, spoke about the larger legal issues against a backdrop of changing video technology available to private individuals and government authorities.
Mr. Onek said wiretap laws such as that used in Massachusetts that refer to secret wiretapping would be ruled unconstitutional if applied to situations similar to the one at Five Corners.
“As far as I can see, I don’t think it makes any difference whether he had the camera openly or not openly,” he said.
As an example, he said suppose a person took photos of someone in the street interacting with the police. “So what?” he said.
Mr. Onek said of the basic Constitutional question, the issue of whether the videotaping is done secretly or not is irrelevant.
Mr. Onek said his concern is not individuals filming government authorities, but the reverse.
“The traditional constitutional law,” Mr. Onek said, “has always been that there is no expectation of privacy in a public place.” For example, a person walking down the street may be viewed on a security camera.
Mr. Onek said those concepts are based on earlier decisions. “What has happened,” he said, “is that technology is changing so rapidly, including retrieval technology, that there may soon be a time when the police or anybody else, through face recognition technology, can get a complete record of every movement of an individual in a public place.”
The older notion that there is no expectation of privacy in a public place may at some point need to be re-examined, he said, against the ever increasing ability of government to use technology to follow an individual’s every movement in a public setting.
“Should they have to get a warrant for that? Those issues are on the horizon because the technology isn’t quite that good yet, but it is going to be soon,” he said. “It is the flip of this issue. It will be the government taking the pictures of private individuals who happen to be in public places.”
Mr. Onek distinguishes between this and a decision to observe an individual based on an investigation for which there is court approval.
