105-C:1 Establishment Authority. –Any town which adopts this chapter may establish a police commission, consisting of 3 commissioners, who shall have been residents of the town for at least 3 years immediately preceding the date of their election or appointment. Source. 1981, 277:1, eff. June 16, 1981.
105-C:2 Referendum. –The following questions shall be submitted to the voters of a town on the regular ballot for the election of town officers if a petition is presented to the selectmen in accordance with RSA 39:3 requesting the same: I. "Shall the government of the police department of the town of __________ be entrusted to a police commission?'' II. "If so, shall such police commissioners be chosen by: (a) Popular election at town election; or (b) Appointment of the governor with consent of the council?'' Source. 1981, 277:1, eff. June 16, 1981.
105-C:3 Establishment. – I. If a majority of those voting in a town in any town election answer the question posed in RSA 105-C:2, I in the affirmative and select the method of establishment set out in RSA 105-C:2, II(a), the voters of such town shall, at the next succeeding annual town election, elect such a police commission. The term of office of each such commissioner shall be for 3 years, except that of the first commission elected under this chapter in any town, one member shall be elected to serve a term of one year and one member shall be elected to serve a term of 2 years. Any vacancy occurring on the commission shall be filled by appointment of the board of selectmen until the next regular annual town meeting. II. If a majority of those voting in a town in any town election answer the question posed in RSA 105-C:2, I in the affirmative and select the method of establishment set out in RSA 105-C:2, II(b), the governor, with the consent of the council, shall promptly appoint such a commission. The term of office of each such commissioner shall be for 3 years, except that of the first commission appointed under this chapter in any town, one member shall be appointed to serve a term of one year and one member shall be appointed to serve a term of 2 years. Any vacancy occurring on the commission shall be filled by appointment of the governor, with the approval of the council, for the duration of the unexpired term. III. No person holding office as a selectman, treasurer, collector of taxes, auditor, highway agent, or head of a police department shall be elected or appointed as a police commissioner under this section. Source. 1981, 277:1, eff. June 16, 1981.
105-C:4 Duties; Powers. –It shall be the duty of the police commissioners to appoint such police personnel, including police officers, staff, constables and superior officers, as they deem necessary and to fix such persons' compensation. The commissioners shall make and enforce all rules necessary for the operation of the police force in the manner most beneficial to the public interest. The commissioners may at any time remove police personnel for just cause and after a hearing satisfying the requirements of due process, which cause shall be specified in an order of removal except that special police officers appointed and designated as such shall serve at the pleasure of the commission and may be removed for other than just cause. Source. 1981, 277:1, eff. June 16, 1981.
105-C:5 Prohibition; Police in Office. –After the election and qualification of the police commissioners under this chapter, no chief of police, police officers, constables or superior officers shall be appointed in any town adopting this chapter except as provided in this chapter. Any chief of police, police officer, constable, or superior officer in office on the date the commission has been duly established, shall be deemed to have been appointed by the commission, subject to the terms and conditions of his original appointment. Source. 1981, 277:1, eff. June 16, 1981.
105-C:6 Compensation. –Police commissioners shall serve without compensation but shall be reimbursed for all actual expenses incurred in the discharge of official duties. Source. 1981, 277:1, eff. June 16, 1981.
105-C:7 Option to Rescind Action. –Any town which has voted to establish a police commission under this chapter may rescind such action by submission of an article in the town warrant as provided in RSA 39:3. Source. 1981, 277:1, eff. June 16, 1981.
So finally, thanks to the Law Offices of Martin & Hipple, we havesomeresolution. A year living under a warrant. Under bond conditions the violation of which could instantly have landed your humble chronicler in jail for any (equally) concocted offense. And a quarter-year waiting for the judiciary to rule on the motion to acquit, despite it being supported by established law: that you have a right to record your servants. Judge Tenney finally has seen fit -- an eighth-year after (even then, only eventually) promising a ruling within 2 weeks -- to sweep away my personal (if still comparatively minor -- a shout-out to CopBlock, NeverTakeaPlea, et al) Sword of Damocles. This is the first such ruling by a NH court. (Hey, Mom! Look at me! I'm a precedent!)
Needless to say, I've been waiting to publish this post for quite some time. So finally, here's what happened. This is what would have come out at the trial that Weare PD inexplicably insisted on pursuing. At taxpayer expense. Even following the 1st Circuit Court's 'Glik' ruling. My arraignment can be seen here. Hearing on defense motions, which (eventually) precipitated this bench ruling, here.
On the date in question, Saturday, July 10th, 2010, several dozen individuals gathered for a rally at Palmer's (now Boondocks) Tavern in Weare, NH, to support a friendly small business that was -- along with its customers -- the ongoing target of Weare PD harassment and intimidation, and to object to general department thuggishness (further details regarding which can be found here). (Goes to state of mind, your honor.) There were multiple and ongoing reports that the department was singling out patrons simply for leaving the parking lot. That they were constantly prowling back and forth in front of the business on Rt 114. That they would park themselves in lots north and south of the Tavern, and stop anyone seen leaving the lot, often on the pretext that the driver had "touched the white line" (AKA the "fog line", on the shoulder of the road). Some detainees reported they'd been told to "stay away from the Tavern" in the future. One activist had already reported being physically threatened by Weare PD while under arrest at the station -- and related "official" recordings had gone mysteriously and conveniently missing. Even the Board of Selectmen had told them to knock it off, reportedly. A Select Board, it must be noted, that may well come to regret its "hands off" approach to dealing with its unaccountable "attack dogs."
I do not trust them. I fear them. Certainly, I suspect that a feeling of foreboding, of trepidation -- not of comfort or security -- is a virtually universal response to any cruiser pulling in behind a traveler on the public road, but for anyone paying attention, Weare has become special. And as Jefferson said, "when the people fear the government, there is tyranny." This was the state of things in Weare in July of 2010. As events unfolded this particular night, for my own self-preservation, I felt a strong rational need to "produce proofs that may be beneficial," and to hold "officers of government ... at all times accountable," as are my explicit Constitutional rights.
Approaching midnight, there were, to my knowledge, only 2 of our party left at the Tavern. There had been reports of several traffic stops related to merely leaving the gathering already. Given the foregoing, we concluded that it was in the interest of our own safety and peace of mind to leave together, to try to slip out of the battle zone using the buddy system. We would head north, and part ways at the intersection of 149 and 77.
As fate would have it, Keith (he can out himself in the comments, if he chooses) pulled onto Rt 114 first. I followed. As I pulled out, I observed headlights coming around the bend heading south toward us. I immediately thought, "aw, shit" -- just as, I have every confidence, the officer thought, "got one!" As the vehicle passed by me, I verified that it was, indeed, a prowl car. In the rearview mirror, I then observed it, now probably still less than 100 yards behind me, make a u-turn in Palmer's driveway -- a u-turn that I suspect the officer would have pulled me over for, had I made it.
I was resigned right then that the die was cast. There was nothing I could have done from that point on to avoid being pulled over. I had been seen leaving Palmer's Tavern (an observation that Keith had mercifully just barely avoided), and the officer had his orders. I was now nothing more than prey. All I could do was not provide a conveniently legitimate reason for the inevitable stop. He quickly pulled in behind me -- needfully exceeding the speed limit to do so -- and the hunt was on. I learned later from Keith that he was also well aware of the officer's presence at this point. Both of us, needless to say, were in heightened driving awareness mode, and certainly well aware of the department's favored "touched the white line" gambit.
The prowl car followed us up Rt 114. Then followed us on a left across Short St. Then followed us on another left south on Rt 77. Approximately 2 miles, in all, in point of fact, before finally turning on the lights some distance down. Once stopped, I called porc411 to alert as to my condition and location. Meanwhile, Keith turned around, and briefly stopped alongside me, asking if I'd like him to video record this forced and empirically unwarranted inconvenience. I responded that I thought that would be lovely. He told me later that he then pulled off the road, got out of his vehicle, and informed the officer that he'd be recording. He said the officer had acknowledged that, so before he'd even approached my vehicle, the officer had already been given an explicit reminder that he had absolutely no expectation of privacy.
Particularly knowing full well that I'd succeeded in providing no legitimate excuse to interrupt my evening, and thus rendering this an entirely extra-legal stop by an entirely extra-legal officer, when he returned to my vehicle, I chose to continue to exercise my NH Constitution Part 1st Article 15 right to produce my own evidence, and so called porc411 again. As I compose this, I still have a perfect recollection of the conversation, even now, a year and a half later, precisely because of that decision. Imagine that. One might expect the state would appreciate that, too, considering Weare PD's repeated inability to produce their own recorded evidence...
The officer -- at this point revealed to be one Brandon Montplaisir -- asked me if I could hang up my phone. I asked if I was required to by law. He said he was just asking so we could have a "conversation." I replied that that wasn't what I'd asked him. He responded that if I was recording, I needed his permission. I helpfully informed him that the RSA required an "expectation of privacy" first (see "Oral communication," 570-A:1, II), and that being in a public space, he had no such expectation, a glaring initial hurdle to invoke their cherished 'wiretapping' statute. He insisted he just wanted to have a private conversation, but he'd "let it be." That, for some reason, was also the end of our "conversation." Now, what it was that he'd wanted to say that he nevertheless didn't want the taxpayers -- his employers -- to hear, well, you'd have to ask him about that -- indeed, I'd encourage it, since I'd really like to know, my own self. But I was and am absolutely confident it had something to do with... staying away from the Tavern.
True to reported form, the officer informed me that all he was claiming in order to justify inconveniencing me this evening was that I had "touched the white line" while he'd stalked me. Touched it twice, in fact. Twice in 2 miles. And around 2 corners, to be precise. An assertion, needless to say, that didn't surprise me, but that I strongly contest, then and now. Which also leaves curiously open the question of what prompted that questionable u-turn to begin with. What was it that attracted his obsessive attention in the first place? Brandon? Any comment...?
Having not done even what he weakly claimed, the officer was on nothing but a "fishing expedition" from the very start, prompted exclusively by my observed place of origin, and he could not legally justify detaining me. He was acting unlawfully. I knew it. He knew it. Indeed, his objective had been to violate my rights. And particularly given their recent history, I felt in fear of my welfare and my liberty. Per Article 8 and RSA 91-A, public servants are "at all times accountable," records of their proceedings accessible (and again, Weare PD's own records somehow keep going missing). Additionally, there's no expectation of privacy, as required by RSA 570-A, on a public road, regardless. And the "proof" that I produced became (officially, prosecution) evidence "that (nevertheless) may be beneficial," as guaranteed by Article 15.
When all was said and done, Weare PD had to admit -- even at the scene -- that I was successful: after following me for 2 miles, taking 2 turns to do it, and detaining me for a quarter-hour, I had provided them no legitimate reason -- no reasonable suspicion -- to detain me that night. None. No truthful reason at all, in fact, other than my observed place of origin: a tavern regarding which the Goffstown District Court has heard testimony that Weare PD had threatened to shut down over the owner's refusal to perjure himself in support of the department's preferred narrative. If it weren't a government agency, surely the Justice Department would be looking into RICO charges, wouldn't ya think...?
And, just perhaps, the only reason I wasn't warned to "stay away from the Tavern" before finally being turned loose was because I was "producing proofs" per Article 15, and holding officers accountable per Article 8 and RSA 91-A.
And for all my trouble, Weare PD wished to threaten my Article 18 ('Penalties to be Proportioned') and Article 33 ('Excessive Punishments Prohibited') rights by, at minimum, harassing me through the expensive (both to me and to the rest of Weare's taxpayers, but not, it should be noted, to Weare PD -- at least not yet...) court system, and potentially abrogating, among other things, my ostensibly unalienable 2nd Amendment right to self-defense via a willfully invalid felony charge, by making the argument, apparently, that EVEN I wasn't aware I was recording. For protecting my rights against my aggressive government by exhibiting the temerity to insist on holding it accountable for its actions. Actions it would prefer that you, its employers, don't learn about, by claiming that you have no RIGHT to learn about them. Back in line, citizen. Or else. These here are SECRET police.
Anyway, what followed was an arraignment, where immediately upon the bang of the gavel, Weare's persec- er..., I mean prosecutor conceded felony charges were laughable. Two trial dates came and went, the second postponed for rescheduling by the court following a hearing on defense motions (to suppress, and for acquittal). Three months of ostensibly learned yet interminable judicial ruminating, while other courts like the directly relevant 1st Circuit made it clear that recording public servants is a protected 1st Amendment right, and already established law.
Finally, we come to this. Motion granted. Weare PD, you lose. Again. Do ya feel the heat yet? Oh, you will. You will...
As Judge Tenney so succinctly put it:
Secondly, RSA 570-A:2 I, does not criminalize activities described in the undisputed facts above because public officials, carrying out official duties in public places, have no reasonable expectation of privacy. Therefore, words they utter do not constitute "oral communication" as defined in RSA 570-A:1 II. ... 'Glik' leaves no doubt that engaging in an audio recording of a police officer in the course of his official duties in a public place is protected speech under the First Amendment. ... The fact that Officer Montplaisir may have been unwilling or unhappy being recorded does not make a lawful exercise of the defendant's First Amendment rights a crime.
What would you have done, citizen? What would you have wanted to do? What would you rationally expect you have a RIGHT to do in an ostensibly free society, in a non-police state, under a SERVANT government? What, indeed, supports the profound arrogance that imbues these public servants with the ludicrous presumption that they're ACCOUNTABLE to that public only on THEIR terms? What activities that even THEY consider questionable, evidently (or else why waste so much of your money covering it up?), is Weare PD trying to be able to continue to hide from its employers? To continue to obligate its employers to unknowingly fund?
The police work for the People. It's time they remembered that. Police, you're all "officers of government ... at all times accountable" TO that public. If you want to be a private citizen, you gotta take off the badge, and relinquish the special privileges that have been granted with it BY THE PEOPLE (yet even then accept the fact that public spaces afford no expectation of privacy, regardless).
And if you didn't enjoy the privilege of hunting me down on a vendetta and detaining me on the side of the road against my will on that summer night, then the issue of recording you never would have come up in the first place, now would it? Face it: you brought this all on yourself. Take some responsibility.
On the job means on the record. Deal with it or get off the job, employee. That's how accountable servant government works. If that's not how it's working, then it's simply not an accountable servant government. Right?
You good with all this, Mr. Citizen and Ms Taxpayer? Are you to be their next prey? What has just this particular farce already cost you (already)? Are you willing to continue to fund this sort of (increasingly typical) police department abuse, from both the standpoint of your civil liberties and fiscal accountability? Will I see you at Town Meeting next February? I believe there's a department budget -- for a department with way too much time on its hands -- that can use substantial trimming...