A judge has dismissed charges against a local woman for interfering with a Somerville police officer after she videotaped him talking to teenagers in Prospect Hill Park earlier this year.

A judge has dismissed charges against a local woman for interfering with a Somerville police officer after she videotaped him talking to teenagers in Prospect Hill Park earlier this year.

Prospect Hill resident Wenzday Jane had been charged in June with interfering with a police officer. A judge in Somerville District Court dismissed that charge at arraignment on Monday, Dec. 8.

“It was a major inconvenience,” Jane said of the charges. “I really want to emphasize the fact I was recording doesn’t mean I was standing there thinking this officer was in the wrong … it was simply an objective record of an incident happening in a neighborhood I’m concerned about.”

But it was a recording that could have had severe consequences, she said.

“Luckily, I’m a white middle-aged woman with some level of confidence in myself,” Jane said. “If this was me 20 years ago, this charge may have ruined my life, I could have lost my job.”

SPD Deputy Chief Paul Trant said residents have the right to videotape officers and that the department “encourages” residents to do so. But he said the officer was distracted by her actions while taping, not the fact of the taping itself.

“I think this is a unique case, it’s not a case that anyone who videotapes police will have a criminal complaint against them,” Trant said.

Carl Williams, an ACLU attorney who represented Jane, questioned the common law application of charging people for interfering with police officer in the first place. But in any case, he said, Jane was not acting to distract the officer.

“He made a decision as a police officer,” Williams said. “We can pick what we want to focus our attention on.”

Recording or interfering?

On June 16, Jane was walking by Prospect Hill Park when she saw Officer Devin Schneider talking to several teenagers in the park. Jane told the Journal she was concerned about possible criminal activity in the park, which she uses, and wanted to check out what was going on, including recording the scene on her cell phone.

”I figured if I was witnessing, I might as well be recording,” Jane said.

In Schneider’s police report, he said he was talking with the teenagers about an assault one of them was reportedly the victim of. When he saw Jane recording the conversation, he told her that while it was not illegal to do so, it was “discourteous.” When Jane asked the teenagers if they minded her recording, though, they said they did not.

In his report, Schneider wrote that his attention was divided between the teenagers and a person of “unknown intention” and called for backup. When another officer arrived, Schneider and one of the teens moved to a different area of the park, and Jane followed them.

Jane told the Journal she walked over slowly and quietly and with both hands visible, and Schneider told the teenager to leave and turned his attention to her, demanding to see identification. Jane initially refused and asked if she was being charged with a crime, and according to the report Schneider told her if she did not produce identification she would be arrested. Jane did give her ID and Schneider later filed a criminal complaint against her for trespassing – being at the park after it had closed – and interfering with a police officer.

First Amendment rights

Williams and the ACLU represented Jane at a clerk magistrate’s hearing on the charges in July, and Williams said Schneider argued for the charges. The magistrate dismissed the trespassing charge but said probable cause existed for the interference charge, leading to an arraignment in October. The ACLU filed a motion to dismiss that charge then, but the Middlesex District Attorney’s office opposed that motion. The DA’s office did not immediately respond to request for comment.

Jane said she was surprised the DA’s office continued to push the charge.

“It seemed like the prosecutor had a job and the job the prosecutor had was to protect the police,” she said.

Williams said in his experience, an assistant district attorney rarely filed opposition to motions to dismiss in lower courts.

“They spent quite a bit of time trying to sustain a misdemeanor charge,” Williams said.

Like Trant, Williams said the act of recording was less important than the speech it embodies, comparing it to someone holding up a sign critical of police while officers were making an arrest. An officer being subjectively bothered by an action does not mean the person making the action was purposefully interrupting, Williams said, and the ACLU argued Jane was not trying to disrupt the officer.

Prosecutors argued that Jane’s statements that she was recording Schneider counted as interference and also said her trespassing contributed to distracting him, even though that charge had been previously dismissed. The opposition also claims Jane was “uncooperative with police orders to identify herself.”

“In viewing the defendant’s conduct in the light most favorable to the Commonwealth, the defendant’s actions go far beyond what is protected conduct under the First Amendment,” Assistant District Attorney Ryan Rall wrote in the opposition.

Judge Antoinette Leoney disagreed, saying Jane did not intentionally interfere with Schneider, dismissing the charge.

Williams said he thought the interference charge was a “proxy” to go after Jane for continuing to record. The judge’s ruling didn’t address larger issues of prosecuting citizens for interfering with officers under common law, or precedent rather than actual statute. He said the DA’s office could appeal the ruling, though.

“I don’t hope for that, because it could renew the attack on Ms. Jane, but separate from that I would like to see a case like this go up to the [Supreme Judicial Court] or Court of Appeals,” Williams said. “Then there would be precedent.”

Jane said that Schneider’s response was ultimately out of proportion to her actions.

“He has so-called legitimate authority to bring the weight of the justice system against someone just because he feels uncomfortable,” Jane said. “Obviously I’m not a threat … the inability to correctly perceive a threat is a huge problem, not just individually but more systemic in police environments.”