John Smith's Reply to Boston Police Officers'  Opposition to Smith's Motion for Partial Reconsideration of Order  Allowing Summary Judgment of Officers Counterclaim for  Alleged Violation of Wiretap Statute M.G.L. c. 272, §99(Q)


 

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MASSACHUSETTS CIVIL ACTION: 01-CV-10890-RBC François Gouin, Jr. Plaintiff v. Dori C. Gouin, Esq., in her professional and individual capacities, Todd D. Posey, William R. Toner, in his official and individual capacities, Edward McMahon, in his official and individual capacities, City of Boston, Paul F. Evans, Police Commissioner of Boston, Mass., in his official and individual capacities, John Does, Jane Doe, Defendants _____________________________________________  PLAINTIFF’S FRANÇOIS GOUIN, JR.’S REPLY TO DEFENDANTS EDWARD MCMAHON AND WILLIAM TONER’S OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL RECONSIDERATION OF ORDER [#142] ALLOWING SUMMARY JUDGMENT OF OFFICER TONER’S AND McMAHON’S COUNTERCLAIM FOR ALLEGED VIOLATION OF M.G.L. C. 272, §99Q [sic]

 

Now comes François Gouin, Jr. ["Gouin"] and submits this reply to DEFENDANTS EDWARD MCMAHON AND WILLIAM TONER’S OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL RECONSIDERATION OF ORDER [#142] ALLOWING SUMMARY JUDGMENT OF OFFICER TONER’S AND McMAHON’S COUNTERCLAIM FOR ALLEGED VIOLATION OF M.G.L. C. 272, §99Q [sic]. Gouin submits this reply in order to correct errors of fact asserted in Defendant officers’ opposition to Plaintiff’s motion for partial reconsideration. He further submits the reply to point out the officers’ failure to deal with legal issues in the motion. All statements Gouin set out here appear in Table 1 of his Oppositional Local Rule 56.1 Statement of Facts. The law, in his memo. FACTUAL ERROR 1 (Defs’ Opp. p.2): "Plaintiff admits that no express consent to tape was given by either Toner or McMahon. Defs. S.J., Exh. D, p. 131, Pl. Motion Dism. [Counterclaim], p. 2; Pl. Ans. Counterclaim ¶14." GOUIN’S CORRECTION: Toner and McMahon refer to a deposition page and two pleadings. None supports the officers’ claim that Gouin "admits that no express consent to tape was given by either Toner or McMahon." In the first exhibit, Gouin admits that he never asked permission to tape. In the two pleadings, the discussion regarding the taping does not come close to admitting anything about consent. Defs. S.J., Exh. D, p. 131, reads: Gouin had been taping before the officers arrived at the condo. Gouin did not need their permission to continue to tape, at least so he believed. It never entered his head to ask their permission. "This is America, after all," at least so he believed. Had Gouin asked permission to continue taping, the officers would likely have taken his tape-recorder and Gouin would have been without proof of what was said and happened on 5 January 2001 at the condominium. He would not have had proof of the officers’ wrongdoing. "The purpose of G.L. c. 272, §99, is not to shield public officials from exposure of their wrongdoings." Com. v. Hyde, 434 Mass. 594, 612, 750 N.E.2d 963, 975 (2001) (MARSHALL, C.J., dissenting, with whom CORDY, J., joins). Pl. Motion Dism. [Counterclaim], p. 2, reads: Given that at all times when Gouin and McMahon were together, the tape recorder was recording and being held openly in Gouin's hand, including the time when McMahon took Gouin's hands and handcuffed them behind his back with the recorder still in one of them, the reasonable conclusion is that McMahon consented to the taping. Similarly, when Toner got off the phone with Dori Gouin ["Dori"], Gouin was still recording and still holding the recorder openly in his hand [Answer to Counterclaim, ¶14]. Pl. Ans. Counterclaim ¶14, reads: 14. Gouin believes that McMahon did consent to the taping, for at all times when Gouin and McMahon were together, the tape recorder was openly in Gouin's hand, including the time when McMahon took Gouin's hands and handcuffed them behind his back with the recorder still in one of them.   FACTUAL ERROR 2 (Defs’ Opp. p.2): Posey did not consent to Plaintiff taping their conversation. Defs. S.J., Ex. B, p.266. GOUIN’S CORRECTION: In his depo, Posey did not deny that Gouin asked for his consent. Posey said he did not recall him asking permission[Oppositional LR 56.1 Statement of FactsPage 6; Exh. D, Posey’s depo, p. 179, lines 20-21].   As Gouin wrote on page 7 of his oppositional LR 56.1 Statement: "He was waiving [sic] the recorder in my face. Yes, I was aware that he was recording" [id. at p. 180, line 2-3]. FACTUAL ERROR 3 (Defs’ Opp. pp.2-3): "In fact, the Plaintiff himself admits that he never obtained consent from Posey to tape. Defs. S.J., Ex. D, p.109." GOUIN’S CORRECTION: Gouin denies waving the recorder and states that when Gouin asked for Posey’s assent to his turning the recorder on, Posey never said yes or no, giving Gouin reason to assume Posey had consented. [T&M Exh. D, Gouin’s Depo., p. 109]. FACTUAL ERROR 4 (Defs’ Opp. p.3):"Posey did not inform the officers that the Plaintiff had a tape recorder and was taping. Defs. S.J., Ex. B, p.291." GOUIN’S CORRECTION: Posey deposed that he did "not know for sure" whether he told the officers that Gouin was already taping. [Oppositional LR 56.1 Statement of FactsPage 6; Exh. D, Posey’s depo, attached to Gouin’s oppositional Statement of Facts, p. 298, line 17] .  On page 291 of Defs. S.J., Ex. B, p.291, Posey was asked: Posey’s failure to deny allows a reasonable inference that Posey might have told the officers that Gouin was taping. On p. 265, Posey did not say he "never discussed the incident with the police officers"; he said he did not recall doing that [T&M’s Ex. B, p. 265, lines 10-11]. In other words, he might have, he just does not remember whether he did. Similarly on lines 2-3 on p. 283 of that exhibit. [Oppositional LR 56.1 Statement of FactsPage 6]. FACTUAL ERROR 5 (Defs’ Opp. p.3):Plaintiff fails to include the fact that the officers first discovered that the Plaintiff had taped the incident, without their consent, at the police station. Defs. S.J., Ex. A, p.45; Ex. D, p.156; Ex. E ("During the booking procedure Officer McMahon observed the suspect holding what he thought was a cellphone, [sic] further investigation determined that the suspect was holding a mini recorder and was secretly recording the officers from the initial call and during the booking procedure."). GOUIN’S CORRECTION: In Table 1 of Gouin’s Statement of Facts, Gouin responded in his "Material, Undisputed" column to Toner and McMahon’s ¶26, which read "The officers first discovered that the Plaintiff had taped the incident, without their consent, at the police station. Ex. A, p.45; Ex. D, p. 156; Ex. E." So defense counsel’s assertion that Gouin failed to include that fact is 100 percent untrue. Beneath that statement in the column of Table 1, Gouin also wrote: "NOTE: Although Gouin put this into the UNdisputed column, Posey did depose that he did "not know for sure" whether he told the officers that Gouin was already taping. [Exh. D [Posey’s depo], p. 298, line 17]." FACTUAL ERROR 6 (Defs’ Opp. p.3): "There is not one substantiated fact to support Plaintiff’s statement that the taping was done openly, . . ." GOUIN’S CORRECTION: Substantiated Fact #1: That Gouin held the tape-recorder openly in his hand is not disputed. Substantiated Fact #2: Posey saw the device. Substantiated Fact #3: McMahon saw the device. Substantiated Fact #4: The tape-recorder was on prior to the arrival of the police at the condominium. Substantiated Fact #5: When a tape-recorder is on, it is recording if there is tape in it and the battery is properly charged. FACTUAL ERROR 7 (Defs’ Opp. p.3): ". . . or to support Plaintiff’s disingenuous argument that the officers "walked into a recording studio" when they responded to the scene. Pl. Motion Reconsid. at p.11." GOUIN’S CORRECTION:On page 4 of his Motion for Partial Reconsideration of the Order Allowing Summary Judgment of the Officers’ Counterclaim for Alleged Violation of M.G.L. c. 272, §99(Q), Gouin’s counsel wrote: "Neither Toner nor McMahon explained how their [sic, his] walking into ‘a recording studio’ was not an interception of the ongoing communications between Gouin and Posey." Clearly, the quotation marks signaled a descriptive expression of the environment, i.e., that poetic license was being taken. The point was that the recording had been occurring within before the police arrived. Defense counsel must have missed the quotation marks, or did not understand the significance of them. CONCLUSIONS OR ISSUES OF LAW WHICH THE OFFICERS FAILED TO DISCUSS OR OPPOSE On pages 4-7, Toner and McMahon discussed only the alleged secrecy of the recording. They did not address or meet any of the issues of law argued by Gouin in his motion. Thus, Gouin concludes, that the officers waive any opposition to the arguments set forth by Gouin. Those issues of fact and law which Gouin raised and the officers left unmet are the following: that the elements of the statute under which the officers have brought their counterclaim, M.G.L. c. 272, §99(q), have significance [Gouin’s Supplemental Memorandum to Motion for Partial Reconsideration of Order #142; ("Gouin’s Supp. Mem. MPR"), pp. 4-6]   that all the words of a statute have meaning [Gouin’s Supp. Mem. MPR, pp. 2-3]   that the officers had no personal interest in the events of 5 January 2001 [Gouin’s MPR, p. 4; Gouin’s Supp. Mem. MPR, p. 6]   that the officers had no property interest in the events of 5 January 2001 [Gouin’s MPR, p. 4; Gouin’s Supp. Mem. MPR, p. 6]   that the officers had no privacy interest in the events of 5 January 2001 [Gouin’s MPR, pp. 5-8; Gouin’s Supp. Mem. MPR, p. 6]   that mere presence of an officer in the condo on 5 January 2001 during the taping is not enough to trigger strict civil liability   that they did not discuss – and have never discussed in their pleadings – what they told Gouin in the condo on 5 January 2001   that they did not discuss – and have never discussed in their pleadings – why they told Gouin what they told him in the condo on 5 January 2001   that they gave no explanation of how they were aggrieved other than that they were merely present in the condo on 5 January 2001   that they gave no explanation of why they told Gouin that he was being arrested for trying "to gain entry" [Compl. Exh. A, p. 9], but then did not charge him with breaking and entering [Gouin’s Oppositional LR 56.1 Statement of Facts (Paper #134), Exh. B(3 of 5)]   that Toner gave no explanation of why he charged Gouin with the four unsustainable criminal charges   that they have been instructed to arrest when responding to an alleged domestic violence call, whether or not there is proof that domestic violence occurred [Gouin’s Oppositional LR 56.1 Statement of Facts (Paper #134), Exhs. G and K]   that M.G.L. c. 272, §99(Q) is not triggered or applicable where there was no criminal charge brought for allegedly violating the wiretap statute, M.G.L. c. 272, §99(C) [Gouin’s Supp. Mem. MPR, pp. 1-6]   that M.G.L. c. 272, §99(Q) is not triggered or applicable where there was no conviction for allegedly violating the wiretap statute, M.G.L. c. 272, §99(C) [Gouin’s Supp. Mem. MPR, pp. 1-6]          that strict civil liability is inappropriate where there was no criminal charge brought for allegedly violating the wiretap statute, M.G.L. c. 272, §99(C) [Gouin’s Supp. Mem. MPR, pp. 1-6]      that strict civil liability is inappropriate where there was no conviction for allegedly violating the wiretap statute, M.G.L. c. 272, §99(C) [Gouin’s Supp. Mem. MPR, pp. 1-6] Gouin contends that the officers’ failure to meet these issues is tantamount to conceding that the facts and conclusions law as stated by Gouin are reasonable. WHEREFORE, Gouin prays that the grant of summary judgment to the officers on their counterclaim be VACATED.


 

Respectfully submitted, FRANÇOIS GOUIN, JR. By his attorney, /s/ Barbara C. Johnson <barbaracjohnson@worldnet.att.net> Barbara C. Johnson, Esq. 6 Appletree Lane Andover, MA 01810-4102 978-474-0833 14 February 2005