February 12, 2019.
N.E.3d 986] Police Officer . Police,
Assignment of duties. Administrative Law,
Administrative Procedure Act, Hearing, Substantial evidence,
Judicial review. Due Process of Law, Taking of
property, Administrative hearing. Division of
Administrative Law Appeals . Public Employment,
Demotion. Practice, Civil, Review of administrative action,
Judgment on the pleadings.
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.
V. Bair, II, Springfield (Kevin Mullen also present) for
J. Fredette (Barbara V.G. Parker, Boston, also present) for
Rubin, Milkey, & Sullivan, JJ.
N.E.3d 987] 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
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 assault.
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.
days later, the victim called Hall-Brewster’s supervisor,
Sergeant Detective [132 N.E.3d 988] 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.
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
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.
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
N.E.3d 989] 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 ...