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Audio recordings bring lawsuit on RUPD chief

By Nicole Zhao     3/14/12 7:00pm

Officers from the University of Massachusetts at Amherst police department named Rice Chief of Police and Director of Public Safety Johnny Whitehead as a defendant in a class-action lawsuit they filed on Feb. 3.

The complaint was a response to the undisclosed placement of audio recording devices in hallways of the new UMPD facility. The officers claimed that this was a violation of their civil rights granted by state and federal law.

The complaint specifically cites the right of the plaintiffs to be free of unreasonable searches and seizures under the U.S. Constitution's Fourth Amendment and their right to privacy under the 14th Amendment. Massachusetts General Law outlaws audio surveillance of individuals without their consent and a lawful warrant. It is a misdemeanor under the Massachusetts Wiretap Statute to permit "an intercepting device to be used or employed for an interception not permitted or authorized."

According to Whitehead, former UMass-Amherst chief of police, UMPD did not intend to place audio recording cameras in hallways.

"UMass asked for cameras with video and audio capabilities for the booking area and interview rooms in the school's new police station," Whitehead said in an interview. "Without the department's knowledge, a subcontractor installed cameras with both audio and video ability throughout the station, including hallways."

Whitehead said he informed the Rice administration of the matter before assuming his position at Rice. He declined to comment any further because the lawsuit does not directly involve Rice.

UMPD officer Mark Schlosser filed the lawsuit on behalf of all UMPD officers against Whitehead, the university, UMass-Amherst President Robert Caret, Deputy Chief Patrick Archbald and former Chief of Police Barbara O'Connor.

The complaint demands that the defendants acknowledge that the audio surveillance violated the officers' rights and dismantle the audio recording devices in non-booking areas. The officers also demand monetary compensation for damages and attorney costs.

According to a news release by the UMass-Amherst Office of News and Media Relations, UMPD assumed full-time use of the facility in April 2011. It was intended to be outfitted with 42 surveillance cameras, 13 of which would be able to record audio communications.

The complaint states that although audio recording devices were installed in non-booking and non-detention areas, the only sign indicating that both audio and video surveillance were in use was located in the booking area.

Schlosser and other UMPD officers alleged in the complaint that they had private and personal conversations in areas of the facility.

"One device, placed outside a restroom, could actually pick up conversation and sound occurring inside the restroom," the complaint states.

The complaint asserts that officers were never told audio communications would be recorded in addition to video.

According to the complaint, Schlosser first learned that the cameras had enabled audio recording functions on Jan. 15.

On Jan. 24, Archbald sent out an internal memorandum to the UMPD staff stating that it had come to the attention of the department that the cameras had recording microphones.

The memo said a review of the surveillance system had been conducted, the audio function had been promptly deactivated and no hallway cameras had recorded any conversations since UMPD moved into the building.

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

Despite these claims, the complaint states that "based upon all the circumstances, it is the Plaintiff's belief that 'the administration', indeed, knew of the operation of the audio-intercepting devices."

A count in the complaint that names Whitehead as the sole defendant states, "By his failure to train, supervise and/or otherwise manage the UMass- Amherst Police Department and/or its employees, he has displayed a callous and deliberate indifference to the rights of the Plaintiff and the class."

On Feb. 22, Hampshire Superior Court Judge Mary Lou Rup issued a preliminary injunction ordering the police department to stop taping conversations.

UMass-Amherst Executive Director of Media Relations Ed Blaguszewski attributed the supposedly unintentional activation of the audio functions to technological issues.

"Under Whitehead, we built a brand new police station," Blaguszewski said. "It's understandable when you install a lot of equipment with brand-new software that something like this could happen."

Blaguszewski praised the administration for dealing with the situation promptly.

"If you've ever dealt with new technology or new software, some things occur, and you have to deal with them as quickly as you can, and [they] did that," Blaguszewski said.

Schlosser's lawyer, Thomas A. Kenefick III, said it would be precarious to comment on the case.

"As of now, we can't say with moral certainty who is at fault," Kenefick said. "Where the case stands with regards to your incoming police chief, it would be inappropriate to comment. The discovery [of evidence] is incomplete, but the complaint speaks for itself."

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