On June 8, 2021, more than ten months after State Trooper Stanley stopped me along Huron Ave and ordered me to stop painting names of unarmed Blacks killed on the guardrail where we held our nightly BLM vigil, I received ‘Notice of Magistrate’s Hearing on Complaint by the Massachusetts State Police against Paul E Fallon.’ Malicious Destruction of Property; estimated damage $1200; hearing date: 9/22/2021.
After I read the legalese. And my hands stopped shaking. And I resolved myself to several nights and days of confused anxiety. I shared a copy with Peter Gately, a fellow kneeler at our vigil, who is also an attorney.
“I can’t believe the State Police are making a fuss about this. Surely, this will go away.” I said with the intonation of a question.
“Most likely, if you want it to.” Peter replied.
“Why wouldn’t I want it to go away?”
“Because this is harassment. You might want to take a stand.” Peter is a mostly retired attorney with a failing body and a brilliant mind. “Declare you were exercising free speech; refuse to admit any wrong.” He offered to represent me, pro bono. His eyes glistened at the prospect.
“Any chance I would go to jail for this?” Peter’s laugh alleviated my doubt. So I figured, worst case, I’d be out $1200. A worthy gamble for an opportunity to gum up the State Police, a notoriously scandalous organization.
I attended the hearing on 9/22. Trooper Stanley made a statement. I declined. The hearing officer offered to settle the charge if I did not pursue similar behavior for a year. I declined. She simultaneously sweetened the deal to six months, while warning me that the penalty amount could exceed $1200. I could tell she wanted this to simply go away. Yet again, I declined. The court agent acknowledged my right to trial.
I was arraigned in December. The pre-trial hearing was set for February 15, 2022. The first public hearing of the case.
Peter laid out the legal argument thus. Back in the 1960’s, protestors of the Vietnam War argued, successfully, that the only way they could exercise their free speech was through civil disobedience, since all of the mechanisms of law and governance were allied with the war. The same logic could be applied to protesting the actions of police against Blacks in 2020.
Our tactics were threefold. First, Peter would contact the City Solicitor and request that the city request the charge dismissed, since my painting of names occurred on city property and Black Lives Matter slogans festooned public spaces all across Cambridge. Second, he would encourage the District Attorney to invoke Nolle Prosequi, a legal position that declares the prosecution will not prosecute. In Nolle Prosequi, the judge has no say, the case is fully dismissed. The third leg—my job—was to contact elected representatives to weigh in on my behalf, enlist supporters to show up at court, and notify any media who might be interested.
When called to account, people—and politicians—show their true colors. The City Solicitor’s office dismissed Peter’s inquiries. So too the city councilors remained mute, including the one who’d sent me an initial note of support. Fortunately, my superb State Representative, Steven Owens, sent a meaningful letter of support to the DA’s office. Folks from SURJ Boston spun an elaborate Signal thread of how my case needed to be coordinated with other efforts, and therefore wound up doing nothing. No one from the media followed up, but a half dozen fellow vigil-kneelers arrived at court.
The Assistant DA for the case took Peter’s calls, and after coordinating with others, arrived at the hearing with a document declaring Nolle Prosequi. My day in court lasted less than a minute.
Afterwards, over coffee, I wondered what value the entire exercise delivered. Peter was philosophical as ever. “We can’t know whose mind we might have bent in this exercise. Did anyone at the city rethink their perspective? Did our fresh ADA come to see things differently? It is unlikely that Trooper Stanley will hear about the outcome. But if he does this again and again, eventually, he’ll be disciplined to allow citizens to express themselves.
“You should also realize you took a bigger gamble than you thought. I never actually said you couldn’t go to jail; I just figured it was wildly improbable. A much larger fine, even jail time, were possibilities, however remote.
“One last thing you might want to think about,” Peter added, “whether you want to have this expunged from your record.”
“My badge of civil disobedience?” I replied. “No way.”