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Hall-Brewster v. Boston Police Department

Appeals Court of Massachusetts, Suffolk

September 5, 2019

JEROME HALL-BREWSTER
v.
BOSTON POLICE DEPARTMENT & another.[1]

          Heard: February 12, 2019.

         Civil action commenced in the Superior Court Department on January 23, 2015.

         The case was heard by Edward P. Leibensperger, J., on motions for judgment on the pleadings.

          Dan V. Bair, II (Kevin Mullen also present) for the plaintiff.

          David J. Fredette (Barbara V.G. Parker also present) for the defendants.

          Present: Rubin, Milkey, & Sullivan, JJ.

          SULLIVAN, J.

         Jerome 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 hearing.

         Background.

         We 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.

         1. The Mission Hill assault.

         On 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 assault.[2]

         Hall-Brewster, 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 not there.

         A few 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 video.

         Horan 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.

         The 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.

         2. The Parker Hill incident.

         Early 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.

         Hall-Brewster 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.

         Later 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.

         Hall-Brewster 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 the incident.

         On 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.

         Emily 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.[3] 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.

         Due to a backlog in the crime lab, the testing was delayed until June of 2013.[4] 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.

         3. The murder of Amy Lord.

         The 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.

         4. Reassignment.

         When 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.[5] 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 ...


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