Swampscott Police Had Probable Cause In Protest Arrest: Report

SWAMPSCOTT, MA — An independent investigation into the arrest of a Black Lives Matter protester in Swampscott on Dec. 12 determined that while Swampscott police acted properly based on the immediate information they had at the time, some aspects of the post-arrest conduct and investigation were flawed.

Swampscott police made the arrest on Dec. 12 after an 80-year-old woman, identified as a supporter of former President Donald Trump, threw water at a man identified as a Black Lives Matter protester. A witness and department viewer of a livestream of the dueling and contentious protests described the Black Lives Matter protester as retaliating with a close fist toward the woman.

He was arrested at the scene and charged with assault and battery against an elderly or disabled person.

Video evidence later showed he did not strike the woman with a closed fist and may have used an open hand to deflect the water bottle, according to the report.

Police Chief Robert Madigan and town officials requested an independent investigation amid the conflicting reports of the incident and accusations the officers violated the civil rights of the man arrested.

The investigation from Municipal Resources Inc., of Plymouth, N.H., which included a panel of four retired police chiefs, determined that officers did have probable cause for the arrest, but did not follow "best practices" in the post-arrest investigation and with some post-arrest conduct.

"Both officers sufficiently established probable cause to effect an arrest via (department) policy (on warrantless arrests) where probable cause is defined as: "if, at the time of arrest, the facts within the knowledge of the arresting officer (or within the collective knowledge of the police) are reasonably trustworthy and are sufficient to warrant a person of reasonable caution and prudence to believe that the person being arrested has committed or is committing the crime for which the arrest is being made," the report said.

The report said it was a justifiable arrest based on that "the need to take an immediate enforcement action was due, in part, to the aggressive and volatile behaviors of people in the crowd; to delay may have escalated the crowd's behaviors."

The report also supported the officers' decision not to charge the woman since they did not witness the water-throwing and that an arrest at the time based solely on witness reports would have been a misdemeanor that did not meet department policy for a mandatory charge.

The report also determined that at no time did police show bias based on race, age, gender or apparent political affiliation.

Where the report was critical of officers was post-arrest when it determined the investigation was conducted "in a disjointed and cursory manner" inconsistent with department policy. The report determined officers did not immediately document witnesses who came forward to contradict the initial observations and did not properly follow up to determine the extent to which the man arrested struck the woman and whether she sustained injuries that would have been consistent with contact.

The report also criticized an officer for using profanity when leading away the man arrested. While the officer — heard telling the man to "shut the (expletive) up" — said he used the directive as a de-escalation technique, the report concluded using that language is not consistent with proper de-escalation methods.

The report will be discussed at the Swampscott Select Board meeting Wednesday night at 6 p.m.

"This report ensures that the town of Swampscott has objectively and effectively conducted a top-to-bottom review of how the Swampscott Police Department handled this incident," Swampscott Town Administrator Sean Fitzgerald said in releasing the report. "It is imperative that the findings contained in this report now result in changes to ensure that the Swampscott Police Department meets the highest ethical and professional standards of Public Safety and Public Service."

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(Scott Souza is a Patch field editor covering Beverly, Danvers, Marblehead, Peabody, Salem and Swampscott. He can be reached at Scott.Souza@Patch.com. Twitter: @Scott_Souza.)

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