Heard: February 12, 2019.
action commenced in the Superior Court Department on January
case was heard by Edward P. Leibensperger, J., on motions for
judgment on the pleadings.
Bair, II (Kevin Mullen also present) for the plaintiff.
J. Fredette (Barbara V.G. Parker also present) for the
Present: Rubin, Milkey, & Sullivan, JJ.
Hall-Brewster appeals from a Superior Court judgment
affirming a decision of the Division of Administrative Law
Appeals (DALA), upholding Hall-Brewster's reassignment
from detective to patrol officer. On appeal Hall-Brewster
contends that he was entitled to notice and a hearing before
the reassignment, and that the DALA decision was not
supported by substantial evidence. We conclude that under the
unique statutory scheme applicable to detectives in the
Boston Police Department (BPD or department), see G. L. c. 7,
§ 4H, Hall-Brewster was entitled to notice and a
predeprivation hearing. We also conclude that the DALA
decision was supported by substantial evidence. Because the
reassignment was properly sustained after a postdeprivation
hearing, Hall-Brewster is not entitled to reinstatement or
back pay, but is entitled to nominal damages for the
violation of his due process right to a predeprivation
summarize the facts found by the DALA magistrate.
Hall-Brewster joined the BPD in 1995. He achieved a detective
rating in 2007, and was assigned to district B-2, covering
the Roxbury and Dorchester areas of Boston. His 2013
reassignment to patrol officer arose out of two cases that he
investigated in 2011 and 2012.
The Mission Hill assault.
October 9, 2011, a pedestrian was assaulted outside a
7-Eleven convenience store in the Mission Hill area of
Boston. The next morning, Detective Kevin Pumphret
interviewed the victim and took pictures of his injuries.
After learning that the store had video surveillance cameras,
Pumphret told the victim that he would check if there was any
video footage of the assault. Approximately a week later, the
victim went to the police station and asked about the status
of his case. Pumphret told him that the case had been
reassigned to Hall-Brewster. The victim called Hall-Brewster,
who at the time was working the night shift, and was unaware
that he had been assigned the case. The victim again inquired
into the status of his case, and told Hall-Brewster that the
video footage would only be available at the convenience
store for thirty days from the date of the
now "a week or so behind," went to the store and
attempted to retrieve the video tape during his evening
shift. He spoke with the store clerk, who was unaware of the
assault. Hall-Brewster left a message for the store owner to
contact him, but the owner did not do so. Hall-Brewster went
to the store again, and on October 20, 2011, talked to the
store owner by telephone, "who agreed to download the
footage and leave it with one of his clerks" for
Hall-Brewster to collect. On October 22, 2011, Hall-Brewster
returned to the store to pick up the video footage. It was
days later, the victim called Hall-Brewster's supervisor,
Sergeant Detective Thomas O'Leary, complaining that
Hall-Brewster had yet to retrieve the video tape. O'Leary
assured the victim that the department would obtain the
footage by October 31, 2011, which it did not do. The victim
called the department again on November 2, 2011, and spoke to
O'Leary's supervisor, Lieutenant Detective Patrick
Cullity. Two days later, Cullity told Sergeant Detective
Timothy Horan, who worked the day shift, to retrieve the
went to the store the next day (November 5, 2011), and
learned that the owner "did not have the technical
skills necessary to transfer [the] footage to a disc."
Horan left a message with Detective Timothy Laham, an
investigator in the BPD forensics unit, asking him to make
the copies at the store. Laham was on vacation when Horan
left the message, but went to retrieve the footage on
November 8, 2011. When Laham arrived at the store on November
8, 2011, he was unable to obtain the video because the
footage had been taped over five hours before his arrival.
victim filed a formal complaint against Hall-Brewster and
Horan after he learned the footage had been erased. On April
29, 2013, after an approximately one-year delay in
investigation, the department's internal affairs (IA)
unit sustained the complaint against Hall-Brewster due to his
failure to recover the video footage.
The Parker Hill incident.
in the morning on September 28, 2012, a woman was attacked
from behind on Parker Hill Avenue in Boston. She was
"choked to the point of unconsciousness, and robbed of
her handbag." When she regained consciousness she had a
wallet in her hand containing an identification belonging to
one Edwin Alemany. She gave the wallet to the police.
Although she did not get a good look at the perpetrator, she
described him as six feet tall and of Hispanic descent.
Police officers went to the address listed on Alemany's
identification, but did not find him there.
arrived at the scene after the victim had been taken to the
hospital. He examined the scene and sent a Gatorade bottle
(bottle), a baseball hat, the wallet, and blood collected
from the wallet to the department's crime lab for
deoxyribonucleic acid (DNA) testing. Hall-Brewster also
checked Alemany's criminal record and discovered that he
had prior felony convictions. This meant his DNA was in the
Combined DNA Index System (CODIS) database.
the same morning, Cullity told "Hall-Brewster to
re-canvass the [crime scene], interview the victim, and look
for Mr. Alemany at the address listed on the identification
found in the wallet." Neither Hall-Brewster nor his
supervising officers, Sergeant Detective Michael Stratton and
Cullity, believed there was probable cause to arrest Alemany
at this time; they thought the district attorney would
require corroboration, although no one contacted the district
attorney's office to verify that opinion. Within the next
few days Hall-Brewster reinterviewed the victim, revisited
the scene, and looked, unsuccessfully, for video cameras. He
also "went by the area" of the address indicated on
Alemany's identification, but did not see him.
did not interview the witness who found the victim after the
assault, follow up with the victim again, investigate whether
the perpetrator had tried to use the victim's stolen
credit cards, or look for Alemany at the other potential
addresses provided to him. Had Hall-Brewster interviewed
Alemany immediately after the incident, he could have
examined him for injuries, questioned him concerning his
whereabouts, and asked him why his wallet was at the scene of
October 2, 2012, Cullity told Hall-Brewster to go back to
Alemany's listed address and use all available resources
needed, including overtime, to find Alemany. Hall-Brewster,
however, decided not to speak with Alemany until he gathered
the results from the DNA tests "for fear of tipping off
how little proof the police had of the perpetrator's
identity and exposing the victim to retaliation if he
confirmed that Mr. Alemany was a suspect." Hall-Brewster
and his supervisors still assumed that they lacked probable
cause to arrest Alemany. No one vetted this assumption with
the district attorney.
Ross, the BPD lab criminalist assigned to the case, e-mailed
Hall-Brewster on October 5, 2012, asking if the bottle,
baseball hat, and wallet belonged to the suspect.
Hall-Brewster did not respond because he thought he had been
clear that the items were from the suspect. Ross e-mailed
Hall-Brewster again on November 9, 2012, and asked him the
same question. Hall-Brewster again did not respond, so Ross
e-mailed him once more on November 19, 2012, along with his
supervisor, Stratton, reiterating her question and this time
stating that she could not test the items until she had the
information she needed. Stratton responded immediately,
acknowledging Ross's e-mail, and later that day, after
speaking with Hall-Brewster, e-mailed Ross again, stating
that he believed the items were from the suspect. The next
morning, Hall-Brewster e-mailed Ross and confirmed that he
believed the items were from the suspect and that all three
items should be analyzed. On November 21, 2012, Ross
submitted only the bottle for DNA testing.
a backlog in the crime lab, the testing was delayed until
June of 2013. The laboratory analysis found DNA on
the bottle but could not match it with anyone listed in the
CODIS database. Hall-Brewster did not ask about the other
items he submitted because he assumed that they had been
tested. They were not tested at that time.
The murder of Amy Lord.
following month, on July 23, 2013, a Hispanic man choked a
woman on a street in South Boston. Later the same morning,
Amy Lord was kidnapped and murdered in South Boston. Shortly
after Lord's death, another woman was stabbed in South
Boston. The perpetrator cut himself during the stabbing and
sought treatment at a hospital. While at the hospital, the
perpetrator was identified as Edwin Alemany, and was charged
with Lord's murder. Alemany was also charged with the
Parker Hill robbery and assault and battery after the
baseball hat was tested and revealed a DNA match.
the police commissioner learned of Lord's murder and the
fact that Alemany's identification had been found at the
scene of the Parker Hill incident, he stated publicly that
there had been probable cause to arrest Alemany in 2012 after
the Parker Hill incident. Soon after, the commissioner told
Deputy Superintendents Kelly Nee and Juan Torres of the
department's bureau of investigative services to
interview Hall-Brewster and to "determine whether he had
a legitimate excuse for not working more diligently to locate
Mr. Alemany" after the Parker Hill
incident. During that interview, Hall-Brewster
stated that he waited for the DNA results to interview
Alemany because (1) he believed Alemany could have been
another victim, (2) he did not think Alemany actually lived
at the address listed on the identification, (3) he had other
active, demanding cases that required his attention, (4) he
did not recall the e-mails from Ross from the ...