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Police flyers prompt legal, social questions

Corey J. Allen

After a weekend that saw an unprecedented three murders in the city, Boston Police Commissioner Edward Davis made a public appeal on Memorial Day for information on 10 unidentified males whose photographs appeared on a flyer posted throughout several Roxbury and Dorchester neighborhoods.

While police officials made clear that the men were not wanted for a specific crime, the flyer was distributed a day after the murder of Nicholas Fomby-Davis, giving the distinct impression that the men were somehow involved in the tragedies.

Two men were arrested in that case. But because of the timing of those arrests and the release of the flyers, it appeared that the unidentified men may have been involved.

But according to the police department, the men on the flyer were only known to affiliate with unnamed criminals and unidentified gang members.

And therein lies the problem.  

“Unless these young men are wanted for a crime, I think the posting of their pictures raises fundamental issues of privacy and defamation of character,” said Professor Robert Johnson of the UMass Boston Africana Studies Department, who is also a practicing attorney. “The posters create an impression that these young men are wanted by the police for criminal activity when in fact they are innocent until proven guilty by a court of law.”

Although this type of public display of non-fugitive persons may be “new” in the Boston area, there was a similar case in Louisville, Ky., Paul v. Davis, 1978, where a man’s photograph was accompanied with a warning to store owners that he was an “active shoplifter.”

The U.S. Supreme Court ultimately decided that the Louisville police chief did not violate the man’s constitutional rights because the chief believed the information to be true based on the man’s prior arrest for shoplifting.

Chris Ott, communications manager for the Massachusetts ACLU, said that although the constitution may not have been violated in this recent case, that there may be other statues being challenged.

“It could be that the men who were pictured on the flyer have legal recourse under state libel law,” Ott said. “But as a constitutional matter, the [Supreme] Court ruled in the Paul v. Davis case, that harming someone’s reputation by itself is not a constitutional violation.”

Though well-intentioned, the release of the flyers may have an unintended affect on the streets.

“I think seeing their picture in the newspaper [provided] by the police is like wearing the scarlet letter.” said Dan Vega, a 30-year-old financial account manager from Dorchester, comparing the men to Hester Prynne, an unwed Puritan mother with an “A” for adultery stitched onto her clothing to shame her in Nathaniel Hawhorne’s 1850 Boston-based “The Scarlet Letter.”

Vega said he believes that if the men are criminals, they and others who aspire to be infamous may feel authenticated by being branded as such.

“It may be cool to wear the scarlet letter,” Vega added. “But the police still need to do what is necessary to ensure public safety.”

And that doesn’t mean unwillingly encouraging criminal acts by some to gain street recognition.

Lisa Fliegel is a licensed mental health counselor who is the senior consultant for the In Real Time Project, a collaboration between The Boston Institute for Psychotherapy and the Louis D. Brown Institute.

“BPD is inviting over-identification and self fulfilling prophecy,” said Fliegel, quickly pointing out what some teenagers might think. “… ‘Oh they think I’m a gangster? I’ll show them what a gangster [does].’”

There is also concern that displaying the men, who are not being formally sought for any crimes, could make them victims themselves.

A public defender practicing law in eastern Massachusetts, who asked not to be identified, agreed that distributing the flyer in the neighborhood of a 14-year-old victim could potentially leave the Boston police responsible for any vigilantism against the men or their families.

“If something [violent] happened to one of those guys, I think both morally and legally, it comes right back to the Boston Police Department,” the attorney said.

But there is something larger at stake.

“Can we take a step back and ask why is it that we are hunting, in a sense, these poor men of color?” the public defender asked. “Is something genetically wrong with them … or do we have some larger societal flaws that are creating conditions so that people are living in an environment that their choices are so narrowed, that this is a lifestyle that they are stuck with at disproportionate rates?

“By continuing to zero in and blaming each individual as though they randomly chose to be bad, and all of these bad people just happen to be young men of color, I think we allow ourselves to be distracted by not only injustices, but the unwise decisions we are making that cost everybody money, safety and happiness.”