The U.S. Appeals Court for the First Circuit heard arguments on Wednesday regarding the constitutionality of a Canton protest that resulted in charges against several residents who support Karen Read.
Audio of the approximately 40-minute hearing shows that a three-justice panel of the Appeals Court asked many questions about whether the matter was properly before them, or had become moot.
The civil case reached the appeals court after several people who protested near the pizza shop of Chris Albert – a witness in the high-profile Read murder trial – in November asked a federal judge to issue an injunction barring police from, in their view, unconstitutionally threatening them with prosecution.
The protest took place Nov. 5, when protesters said police ordered them to leave and handed them copies of the state's witness intimidation statute. The protesters asked Casper within days to rule that their protest was protected by the First Amendment, and to prevent police from threatening them with prosecution at a protest they had planned for Nov. 12.
U.S. District Court Judge Denise Casper denied the emergency injunction request on Nov. 10, ruling that, based on the limited information in front of her, the Canton police’s decision to order protesters to leave as a result of the state’s witness intimidation statute did not likely violate the First Amendment.
The protesters – who referenced the coverage of Holden’s Aidan “Turtleboy” Kearney multiple times in their papers – were charged with intimidation of a witness after Casper’s ruling for their conduct on Nov. 5.
Those charges were eventually dismissed after a clerk magistrate in Stoughton District Court ruled police had not met their burden of probable cause.
Kearney still faces his own, separate witness intimidation charges, and has similarly argued in Norfolk Superior Court that authorities are unconstitutionally chilling his First Amendment rights.
Wednesday's hearing did not appear to shed light on where federal appellate judges stand on the intersection of the state’s witness intimidation statute and the First Amendment, as it centered on logistical arguments about whether the appeal was moot.
As a number of the justices pointed out, the contemplated Nov. 12 protest that the plaintiffs had asked Casper to preemptively rule constitutional has long come and gone.
The protesters, for fear of prosecution, did not hold that protest, their lawyer, Marc Randazza, said, and have not held others near the pizza parlor for the same reason.
Randazza argued the appeal of Casper’s denial remained valid, saying the protesters are properly asking for the court to rule that, if they conducted the same protest in the future, police could not charge them with witness intimidation.
In hundreds of pages of court records, Randazza argued the police’s bid for charges was an abuse of power aimed at stifling free speech.
Randazza said the Canton police’s interpretation of Massachusetts' witness intimidation statute – which he argued was itself overly broad – was clearly unconstitutional.
While protesters gathered near Albert’s pizza shop, Randazza noted the shop is near the busiest intersection in town, including other places of business related to the Read case.
Lawyers for the Canton police argued in court papers that the conduct of protesters outside the shop was more invasive than the peaceful protest Randazza described, but said they, at this stage in the legal proceedings, haven’t been allowed to provide pertinent evidence, including video evidence.
A police report affixed to court filings shows Canton police responded to the Nov. 5 protest after being called by an unnamed special prosecutor from the Norfolk District Attorney’s office.
Polie wrote that Albert told them protesters had come to the entrance of his business with a sign suggesting his son had been involved in the death of Read's boyfriend, John O'Keefe.
Authorities allege Read murdered O’Keefe by striking her with her vehicle, but many people believe she was framed by members of Albert’s family.
Read’s first trial this summer ended in a mistrial, and she is slated to be tried again in January. Chris Albert testified at the first trial.
Randazza argued Wednesday that the appeal of Casper’s order is not moot because his clients still want to protest in the busiest intersection in Canton, but remain afraid to do so.
Randazza said that even though a clerk magistrate found there was not probable cause to issue charges against his clients, he does not trust that Canton police would not issue similar charges in the future.
A lawyer for Canton, Douglas Louison, said the Canton police have already pledged not to arrest peaceful protesters so long as they did not stray into witness intimidation.
In court papers, Louison’s firm noted that police handled many other protests throughout town about the Read trial without incident, and provided an affidavit from Canton Police Chief Helena Rafferty.
“The Town does not intend to enforce (witness intimidation statutes) merely if Plaintiffs hold a peaceful protest within eyesight of a witness,” the chief wrote.
The chief wrote in the affidavit that, regarding the protest in question, there is video “indicating certain individuals from the protest did not remain across the street and had in fact made their way in front of (Albert’s pizza shop).
“Signage observed by officers also included ‘Colin Albert was in the house’ and slogans recorded on audio included ‘Chris Albert killed a man.’”
Police wrote in their report that Chris Albert – a town selectman whose brother is a Canton police officer, and whose other brother owns the property where O'Keefe was found on the morning of Jan. 29, 2022 – told them he was fearful of what might happen if protesters entered his shop.
Rafferty wrote in the affidavit that while a clerk magistrate dismissed the charges police sought, the department is “reviewing its ability to appeal these findings.”
The judges during the hearing noted that, even if they find the appeal of Casper’s order moot, the underlying federal case will still be active, and might again make its way up on appeal.
They also, throughout the hearing, mentioned the difficulty of ruling about hypothetical future protests whose specific nature was speculative.
They had not yet issued a ruling in the case as of Friday afternoon.
Randazza, in the underlying federal case, makes an argument that Massachusetts’ witness intimidation statutes are unconstitutional.
He said the statutes are more restrictive than what has been blessed by the U.S. Supreme Court, allowing authorities to charge someone with intimidation for picketing not just outside a courthouse where a witness is to testify, but in any building where a witness is present.
“In fact, the government could shut down any demonstration against police corruption by sending a police officer who is a percipient witness in the court proceeding to the scene,” he argued.
The underlying federal case has been stayed pending the Appeals Court decision; in it, the Canton protesters seek, in addition to a declaration of unconstitutional police conduct, monetary damages.
This article originally appeared on Telegram & Gazette: Karen Read supporters ask US Appeals Court to say pizza shop protest was constitutional
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