UMPD officers file suit against department over audio surveillance

By Alyssa Creamer

As University of Massachusetts Police Chief Johnny Whitehead prepares to leave his position at the University by February’s end, a class action lawsuit has been filed against him, the University and the UMPD by officers within the UMPD. The lawsuit was prompted after the discovery of audio surveillance equipment that was recording on-duty officers from a number of the police station’s ceilings at all hours.

Mark Schlosser, a UMass police officer, on behalf of other members of the UMPD has filed a class action lawsuit against the University, UMass President Robert Caret, the UMass Board of Trustees, the UMPD, Whitehead, Deputy Police Chief Patrick Archbald, and former Police Chief Barbara O’Connor, alleging that undisclosed placements of audio-recording security cameras within the new police station have violated his civil rights and others’ under both state and federal law.

The lawsuit, filed on Feb. 3 in Hampshire Superior Court on behalf of Schlosser and other UMPD patrolmen, accuses UMass and UMPD administrators of the “surreptitious placement” of at least 13 cameras which had been intercepting audio since UMPD moved into its new building in March 2011.

The lawsuit states that while there was a sign in the building’s booking area warning of audio and video recording, officers were allegedly not informed of audio surveillance devices that were in operation throughout the department, particularly in areas of the department they had never known to have surveillance equipment installed before.

Submitted by attorneys Thomas A. Kenefick and Mary H. Patryn, the lawsuit alleges several violations involving both Massachusetts General Laws and the United States Constitution.

The lawsuit asserts that the recording devices violated plaintiff rights under the Massachusetts Wiretap Act, the Fourth Amendment of the U.S. Constitution and Article XII of the Massachusetts Declaration of Rights. It also alleges the installation of these recording devices without consent constitutes an invasion of privacy, citing Mass. Gen. Law chapter 214 section 1B and the U.S. Constitution’s Fourteenth Amendment.

The lawsuit asks that the court prevent further audio surveillance, declare the operation of the audio devices a violation of the plaintiffs’ civil rights and privacy, and award monetary damages to the plaintiffs.

“The audio devices were extremely sensitive and … one device, placed outside a restroom, could actually pick-up conversation and sound occurring inside the restroom,” states the lawsuit.

Schlosser said he and other officers had “private conversations of a personal nature” within range of audio interception, according to the lawsuit.

The officers involved in the suit are dissatisfied and in disbelief of a claim by Archbald that “no hallway cameras have been recording conversations since we moved here to the present time.”

“Based on [Schlosser’s] knowledge of the audio/video device used in the booking area, the audio transmissions from the devices are recorded and stored and/or archived,” states the lawsuit.

Whitehead, who will be leaving his post at the UMPD after two years to assume a role as police chief at Rice University in Houston, was not available for comment on the lawsuit by press time. Calls last night to University spokesman Ed Blaguszewski were also not returned in time for publication.

Yesterday, as reported on by the New England Center for Investigative Reporting, Hampshire Superior Court Associate Justice Mary-Lou Rup issued an injunction order to the UMPD to stop the recording of conversations within its headquarters.

However, according to an internal UMPD memorandum sent from Archbald on Jan. 24 – which has now been used as evidence as part of the lawsuit – the audio surveillance had ceased immediately upon its discovery by the department on Jan. 22.

The lawsuit states “On or about January 15, 2012 the plaintiff learned for the first time, that there was an audio function to some of the surveillance cameras in place within the facility.” However, it does not make clear whether Schlosser or others among the plaintiffs immediately reported these findings to the rest of the department.

Archbald’s memorandum stated that officials within the department were unaware of the department’s ceiling cameras’ live microphones and their recording capabilities until Jan. 22.

In his memo, he said, “No one within UMPD requested in the bid specifications or had prior knowledge that these cameras were enabled for audio.”

Jim Meade, the manager of Residence Hall Security, who, according to the memo, “administers the system” at the police station, was asked by Archbald to conduct a review of the cameras the day after their discovery, and he found that the cameras were indeed functioning with their “Enable Microphone Power” settings “on.”

The memo continues to add: “Now knowing they were enabled Jim deactivated the audio at each hallway camera. This will remain the status for these cameras indefinitely.”

Archbald closes the memo reiterating that, “no one in the administration had knowledge that hallway cameras could be accessed to listen to live audio or to record conversations. As soon as the matter was brought to our attention the capability was disabled and will remain disabled indefinitely.”

The lawsuit, however, disputes Archbald’s account of the circumstances surrounding the department’s discovery of the cameras.

It states: “It is [Schlosser’s] belief that ‘the administration,’ indeed, knew of the operation of the audio-intercepting devices.”

The lawsuit alleges that because of their involvement “with the planning phases for the facility,” O’Connor, Whitehead and Archbald “knew of, should have known of, and/or deliberately chose to have audio devices installed and operational within the facility in areas not designated as subject to audio surveillance.”

The lawsuit continues to add that Schlosser believes that the stations’ dispatchers, who are accountable to Whitehead and Archbald, “had known that the audio-video devices were engaged.”

According to the lawsuit, which is signed by Schlosser, “At no time did [Schlosser] or the class know of or consent to the use of audio surveillance.”

Massachusetts General Law prohibits the nonconsensual audio surveillance of individuals without lawful warrants or other limited exemptions. Under such strict guidelines, the lawsuit alleges it cannot find any situation under which the surveillance cameras placed within the department could be considered within these limited exemptions.

“The defendants had installed, operated and/or allowed the devices to operate despite that they had no warrant to do so, or any other justifiable basis,” states the lawsuit.

According to Massachusetts Wiretap Act, “a person who permits an intercepting device to be used or employed for an interception not permitted or authorized” by the law is guilty of a misdemeanor.

People whose rights have been violated under the Mass. Wiretap Act can sue for damages.

In addition to the Fourth Amendment of the U.S. Constitution, the lawsuit also cites federal and Massachusetts Constitutional protections against unreasonable searches and seizures and violations of liberty without due process of law.

The UMPD currently has 81 employees, including 62 sworn officers, 10 dispatchers, nine administrative staff, plus 26 police cadets, according to a University press release issued in September on the police station’s ribbon-cutting.

Alyssa Creamer can be reached at [email protected] Dan Glaun can be reached at [email protected]