Attorneys: Boston Police Videos From 'Operation Clean Sweep' Appear To Show Unconstitutional Stops

Newly released videos filmed by Boston police during last year’s “Operation Clean Sweep” show what attorneys say are the unconstitutional stops of dozens of people near the South Bay House of Correction.

More than seven hours of police body camera and handheld footage, released to the American Civil Liberties Union of Massachusetts in a public records lawsuit and provided to WBUR, bring to light some key moments in the Boston police's controversial crackdown of a South End area frequented by people struggling with homelessness and substance use. In all, 34 people were arrested over two nights, Aug. 1 and 2 of 2019.

More than half — 18 people — were arrested solely on active warrants, for offenses ranging from drug possession to assault and battery. The recordings appeared to reveal how police figured out how many of those people had arrest warrants. Officers told dozens of people on Atkinson Street that they couldn't leave the area unless they handed over identification, according to the videos. The police ran their IDs through the criminal record system, which alerts officers to any outstanding warrants.

In some of the videos, officers stopped people walking down nearby public sidewalks. The pedestrians were told they were trespassing — that the Southampton Street Shelter was closed for the evening — and that they were not free to go until their IDs were run.

In footage from the first night of the operation, the officer in charge, Capt. John Danilecki, announced to people crowded along the wall of the shelter that they could leave if they offered up their identities.

"If you want to come forward, give your name … to get out of here. That’s how it goes,” he said. More people walked toward the cruiser to line up.

Stops like these, whether they happen to groups or individuals, are unconstitutional, civil liberties advocates, defense attorneys and constitutional law professors said. Police can request a person identify themselves, but officers cannot hold the person if he or she declines — unless police have what’s known as “reasonable suspicion.” From what the videos showed and police reports detailed, officers don't seem to have that for many of the individuals they stopped.

“Police have to have a reasonable and individualized suspicion that the person they're stopping has either committed a crime or is about to commit a crime. And there was none of that here,” Ruth Bourquin, a senior and managing attorney at the ACLU, said. “They simply decided to capture all the people in a full block on a street in the city of Boston.”

WBUR asked Boston police and Mayor Marty Walsh’s office about the stops — and whether they believed they were constitutional. Both Walsh’s office and a police spokesman did not directly answer questions about the stops themselves. Instead, they pointed to an “alarming increase of violent crime” before “Operation Clean Sweep,” with Boston police saying there was a 41% increase in such crime year-over-year in the area -- though the department did not provide raw numbers. Police also cited an increase in neighborhood complaints.

Appearing on Radio Boston Monday, Walsh said the operation happened over a year ago and that the controversy surrounding it has been “rehashed" and told many times. (The videos were released to the ACLU in this form just this month.)

"I appreciate everyone ... focusing on what happened last summer but anyone that would walk down the street there and saw it, there was a lot of people put in harm's way, including people that were sick and suffering from addiction on the sidewalk there," he said.

A Walsh spokesperson said the mayor prioritizes helping those suffering from substance abuse disorders.

“In recovery for more than 20 years, there is hardly an issue that is more personal to the mayor himself, and he has invested an incredible amount of resources in battling the opioid epidemic and the devastating impact it has on individuals and families across our city, state and country,” a mayoral spokesperson said in a statement Friday.

"They simply decided to capture all the people in a full block on a street in the city of Boston.”

ACLU Attorney Ruth Bourquin

Police Commissioner William Gross recently said the department spent $3 million in overtime on patrolling the area near Melnea Cass Boulevard and Massachusetts Avenue. A police spokesman, Det. Sgt. John Boyle, said the department now has high visibility patrols 24 hours a day, seven days a week, along with a new police street outreach team.

“The Boston Police Department’s priority is to assist and protect all people in the Newmarket Square area, especially the most vulnerable population, as well as the quality of life of the residents and workers in this neighborhood,” Boyle said in a statement.

Walsh was asked if he's concerned that police may still be stopping people in the same manner the Clean Sweep videos showed — given that so many officers have been assigned to patrol the area.

"They’re out there because the community wants them," Walsh said. "The civic association presidents were very upset with me [for] even thinking about pulling back the police out there, so you might want to bring them on and talk to them about it.”

WBUR spoke to two South End neighborhood association members who said what they’re seeing now in terms of drug use and homelessness is about as bad as it was before Clean Sweep. They did not indicate they were very concerned about the appearance of unconstitutional stops. 

In a statement provided after the publication of this article, Suffolk County District Attorney Rachael Rollins said many of those arrested were picked up on warrants outside of her jurisdiction. Those who were in Suffolk County courtrooms had their cases handled “in accordance with the policies of this office” by prioritizing treatment and services for those in need. Her statement did not say how many people that affected.

“I appreciate the ACLU’s efforts raising up this issue and their work to protect the rights of the individuals targeted in this operation,” the DA’s statement said. “I look forward to discussions about the legal, public safety, and public health implications of this operation with the ACLU.”

City Councilor Andrea Campbell, who chairs the council’s public safety and criminal justice committee, said it’s troubling and disturbing that individuals’ constitutional rights may have been violated.

“I think it underscores the importance of body cameras as a means for transparency and accountability,” she said.

She also questioned how and why police show up in certain neighborhoods, and whether law enforcement is the best response to specific crises.

“I think our officers are doing the best they can,” she said. “But the question is, should they be the ones who are the first to show up?”

"We're at a moment in time where we have to critically and thoughtfully think about other means and [decide], what is the right response when it comes to cases of homelessness and or substance abuse?” Campbell added.

City Councilor Ricardo Arroyo wasn't entirely surprised by the apparent unconstitutional stops. He saw similar issues with arrests in his work as a public defender in Roxbury and Dorchester.

He pointed to the language of the police action.

“Somebody made the decision to call this ‘Operation Clean Sweep,’ ” he said. “ 'Clean Sweep' implies that we're talking about trash ... and the reality [is] that these are people that I have actually represented. These are human beings with feelings, with thoughts, with family, with loved ones, with real vulnerabilities.”

What The Videos Show

When cruisers pulled up along Southampton Street to block Atkinson Street near sundown on Aug. 1, 2019, officers intercepted a man in cargo shorts and a reflective vest walking away from the area. The officer wearing the body camera got out of the cruiser and told him to stop: “Stay right here, sir.”

The man asked, “you want my ID right now?” and reached toward his shorts pocket. The officer told him no.

Within a few minutes, an officer on a bullhorn announced to a crowd of people much further down the block, “Ladies and gentlemen, you are not free to leave. You are not free to leave. Stay where you are.”

Other videos of the same area that evening showed people lining up before the driver’s side window of a cruiser. They were queued up to hand over their IDs to an officer checking them, one-by-one, on the cruiser’s computer.

Danilecki yelled to the crowd that everyone could leave if they, too, submitted to an ID check.

The next night, body camera videos show officers stopped a man on a bicycle and another man in a walking boot on the public sidewalk outside the shelter and told them they weren't free to leave.

The man on the bicycle asked why he was being stopped. An officer explained to him that the shelter was closed, saying, “So now anyone here is actually trespassing at this point. So we’re just trying to figure out who everyone is.”

The man on the bike told the officer he doesn’t have any warrants. “Appreciate you being cordial,” the officer replied. Both men were allowed to leave after a few minutes once their names were checked.

The second night of Clean Sweep, Aug. 2, Danilecki was in charge again. The officer who had earlier stopped the man on the bike and the man in the walking boot on the sidewalk told Danilecki his body camera was recording. He asked the captain if he should turn it off.

“Stay live,” Danilecki said. “We got nothing to hide. Because the ACLU might subpoena these records and we want to show them we’re doing everything by the book.”

The more than seven hours of video captured many other encounters, medical emergencies and arrests. Cops searched a car parked on Atkinson Street, and arrested a woman after drugs were found on her. “It’s a bad time to be on the street,” Danilecki told her. Another man was held on suspicion of assaulting another person injured on the sidewalk.

Nurses and EMTs worked to help a man who appeared to be overdosing. A camera zoomed in on a backpack on the ground, dozens of needles spilling out onto the pavement. As night fell, a public works garbage truck showed up and a street sweeper cleaned Atkinson Street.

“It’s never been so clean,” one officer said.

What The Law Says

The videos did not capture everything that went on over the two nights of Operation Clean Sweep. That’s in part because some officers on scene were not wearing cameras. The department had just begun its permanent body camera program two months before, and not all districts were assigned to use them yet. Some officers there were also on overtime, and body cameras aren’t yet required for those shifts.

WBUR asked the police department repeatedly to explain why the stops were made to determine if something not seen in the footage might offer more context. A police spokesman did not answer written questions.

The mayor’s office also did not say whether Walsh saw issues with the stops.

Six attorneys WBUR spoke with concluded the videos appeared to show illegal police stops made without sufficient evidence.

An officer must have reasonable suspicion that someone committed a crime, is currently committing a crime or is about to do so in order to stop that person, said Randy Gioia, deputy chief counsel of the public defender division at the state Committee for Public Counsel Services. Reasonable suspicion could be a tip that a person just broke the law or an officer saw a person acting in a specific, suspicious manner.

“In other words, police officers can't just go up to random people on the street and say, ‘Stop. I need to get your name,’ ” Gioia said. “You can't stop someone, prevent them from moving about the street, unless you have that reasonable suspicion.”

Tracey Maclin, a constitutional law and criminal procedure professor at Boston University, explained that reasonable suspicion is more than a hunch a group of people are doing something wrong. Officers need some cause or reason to believe that a crime has or will be committed.

Individuals can give ID voluntarily if a police officer asks. But if people aren’t doing anything wrong, and are told by police that they aren’t free to leave until they show identification, that’s illegal, he explained.

“They just can’t roll in ... and stop everybody there,” Maclin said. “That’s a fishing expedition.”

In response to questions about the stops, both the mayor’s office and police department talked about a rise in crime in the area in the months before the operation. Earlier the same day of the operation, a Suffolk County House of Correction officer was assaulted by a group of men on his way into work on Atkinson Street. At least one alleged assailant was arrested shortly after the incident and before the two-day police action began.

But attorneys said just being in a high-crime area or a spot known for drug use isn’t enough to detain someone, under the law. It can be a factor, but not the sole reason for the stop.

“They just can’t roll in ... and stop everybody there. That’s a fishing expedition.”

Law professor Tracey Maclin

Arrest reports for at least 14 of the people picked up on warrants did not list any kind of reason for the stop. Officers wrote that they “came into contact” with the person and found an active warrant for that individual. Or they excluded any explanation at all, other than that the stops were part of Operation Clean Sweep.

“As a defense attorney, that would be a big red flag to me,” Gioia said. “What does that mean, 'We encountered this person'? That sounds like they stopped the person for no reason.”

Other incident reports from the operation specifically mentioned why the arrested person was stopped. In one, officers wrote that they saw people passing around what looked like a "crack pipe." In another, an officer observed a group huddled by a loading dock and scanning the area. This was evidence, the officer wrote, of a drug deal.

Arroyo questioned whether officers in the videos knew these may be unlawful stops. And he said he knows from his work as a public defender that a flawed search or stop can lead to a prosecution crumbling.

“Those unconstitutional stops are a large reason for why repeat offenders are released,” he said. “Folks want to blame judges. A lot of it has to do with whether or not the stop or the search was constitutionally correct.”

‘Everybody Has The Same Right’

Jim Stewart works with those who are homeless or struggling with addiction in the South End. For 30 years, he watched again and again as poor and homeless people there were rousted and moved from one area to another. Operation Clean Sweep, he said, wasn’t much different.

“If there's any population that is considered disposable, it's poor and homeless people on the streets,” Stewart said.

Attorneys interviewed for this story argued that a violation of anyone’s constitutional rights should be of grave concern to everyone.

“If you're a homeless person, if you're a billionaire, it doesn't matter,” Gioia said. “Everybody has the same right, the same rights to walk about the street free from police interference.”

People are allowed to congregate and stand on a street corner together without expecting harassment, Maclin said.

“This is not East Germany. It's not the old Soviet Union,” Maclin said. “Whenever a government official walks up to you and says, ‘let me see your papers.’ That's not America, or at least it's not supposed to be America.”

Gioia said these kinds of unconstitutional stops aren’t rare — and they happen to some people more often than others.

“I think if you're a white guy in a suit walking down the street, you're not going to get stopped by the police for no reason,” he said. “If you're a young Black man out and about in the city of Boston, you might be more likely to be stopped by the police.”

Bourquin, with the ACLU, said residents in other areas of the city or state shouldn’t feel immune.

“A massive violation of the civil liberties of residents of the commonwealth should concern us all,” she said. “If police can do this in this neighborhood, what's to stop them from doing it on Newbury Street or in Downtown Crossing or outside the State House as people are preparing to rally?”

Bourquin said this could happen in any Boston neighborhood, to anyone.