Rowinsky v. Massachusetts State Police

Commonwealth of Massachusetts
Middlesex, SS.
Superior Court
Civil Action No.

Peter Rowinski,

Plaintiff

v.

State Trooper John M. Walsh;

Joseph S. Lalli, Commissioner of Public Safety;

Jane Perlo, Secretary of Public Safety;

Colonel John DiFava, Superintendent of the Massachusetts State Police and the Commonwealth of Massachusetts;

Defendants

COMPLAINT AND PRAYER FOR INJUNCTIVE RELIEF

Introduction

This is an action brought on behalf of Peter Rowinsky and all other bicyclists who have been wrongfully stopped, harassed, or removed from public roadways to which they have an equal right to access, pursuant both to equal protection clauses of the United States Constitution and the Massachusetts Declaration of Rights and under Massachusetts statute. Mr. Rowinsky is suing for violation of his civil rights as a result of a wrongful arrest, detainment and prosecution and seeks money damages for these wrongs. Additionally, Mr. Rowinsky is one of many bicyclists who has been singled out for exclusion for the right to use public roads, seeks an injunction enjoining not just plaintiff Trooper John M. Walsh, but all state police law enforcement officials from selectively and illegally stopping and removing bicyclists from public roads to which they have an equal right to use and to which they have a legal right of access, and further seeking an injunction enjoining the Commonwealth of Massachusetts and its law enforcement subdivisions from allowing the such practices to continue and ordering said defendants to institute a program of in-service education and training or all its state police troopers and other law enforcement officers in the rights and obligations of bicyclists on the roadways, so that such harassment of bicyclists now too common a practice, can be abated.

Parties

  1. Peter Rowinsky is an individual residing in the Commonwealth of Massachusetts who is typical of a class of citizens, those who bicycle as a means of transportation and recreation. This class of citizens has been singled out and selectively excluded from certain Massachusetts roadways.
  2. Defendant State Trooper John M. Walsh is and was all times pertinent hereto an officer of the Massachusetts State Police and is sued in both his individual and official capacity.
  3. Defendants Joseph S. Lalli, Commissioner of Public Safety, and Jane Perlove, Secretary of Public Safety, are the persons in charge of supervising the state police for the Commonwealth of Massachusetts and are sued both individually and in their official capacity.
  4. Defendant John DiFava is the superintendent of the Massachusetts State Police and is responsible for the training and supervision of state police officers. He is sued in both his individual and official capacity.
  5. The Commonwealth of Massachusetts is the governmental body under which the Massachusetts state police serve and is obligated to treat all its citizens equally and afford equal protection under provisions of the Massachusetts Declaration of Rights and the United States Constitution.

Statement of Facts

I. Background Facts
  1. In 1984, John Allen, an individual who chooses to bicycle as a principal means of transportation, was stopped and arrested by a Massachusetts State Police Officer while bicycling on Soldiers Field Road, a public road to which all citizens of the Commonwealth have equal access. This stop was illegal and in violation of not just the equal protection provisions of the Massachusetts Declaration of Rights and the United State Constitution, but of the Massachusetts General Laws ' 85, 11b, which gives bicyclists the same rights and responsibilities to use the roadways as operators of any other vehicle. After a trial in the Brighton District Court, the court found that Mr. Allen did have the same right to use Soldier's Field Road as any other individual and found in Mr. Allen's favor. [See Affidavit of John Allen, filed herewith]
  2. This judicial adjudication constituted affirmative notice to the defendants that their state police were not aware of or respecting the rights of bicyclists to equal use of public roads owned and maintained by the Commonwealth of Massachusetts and to equal protection under the law.
  3. These rights of equal access to the roads and equal protection under the law are rights guaranteed by Massachusetts law and by the Constitution of the United States and the Massachusetts Declaration of Rights, of which the defendants, in their official capacities, should have known without the need for such a judicial determination.
  4. On September 6, 1996, Paul Miller and Pamala Fernandes, both citizens of the Commonwealth of Massachusetts, were stopped by a Massachusetts State Police officer, while bicycling on a tandem bicycle on Memorial Drive in Cambridge, a public way which all citizens of the Commonwealth have an equal right to use. After terrorizing them by almost causing a collision with them, the trooper screamed and swore at them before ordering them to get off the roadway, with disregard for their right to use the roadway.
  5. This stop was illegal and in violation of not just the equal protection provisions of the Massachusetts Declaration of Rights and the United State Constitution, but of the Massachusetts General Laws ' 85, 11b, which gives bicyclists the same rights and responsibilities to use the roadways as operators of any other vehicle.
  6. Mr. Miller wrote Governor Weld, complaining about the conduct of the state trooper. Mr. Miller received a response from defendant DiFava, in his capacity at the time as major in charge of Troop H of the state police, incorrectly citing Massachusetts law, in order to exonerate the state trooper's wrongful stop. These facts are further set forth in the affidavit of Pamala Fernandes, filed herewith.
  7. Scott Jenney is a citizen of the Commonwealth who also prefers bicycling as his principle mode of transportation.
  8. On October 16, 1997, Mr. Jenny was stopped by Trooper Joan Conley, a Massachusetts State Police officers, while Mr. Jenny was bicycling through a traffic rotary in Reading on a public way which all citizens of the Commonwealth have an equal right to use, and was ordered to get off the roadway by Trooper Conley, who cited Mr. Jenney for an unknown traffic violation and confiscated Mr. Jenney's driver's license. [See Affidavit of Scott Jenney, [filed herewith]
  9. This stop was illegal and in violation of not just the equal protection provisions of the Massachusetts Declaration of Rights and the United State Constitution, but of the Massachusetts General Laws ' 85, 11b, which gives bicyclists the same rights and responsibilities to use the roadways as operators of any other vehicle.
  10. The state police never returned Mr. Jenney’s driver’s license.
  11. David G. Wilson is a professor of transportation engineering at the Massachusetts Institute of Technology. Professor Wilson also chooses to use a bicycle as his principle means of transportation.
  12. In the evening on November 10, 1998, Professor Wilson was stopped by a Massachusetts State Police Officer while bicycling on Route 28, near the access to Route 93, at the Somerville Medford border. The State Police officer told Professor Wilson that he was not permitted to bicycle on Route 28, even though Route 28, like Soldiers Field Road, was a public road to which all citizens of the Commonwealth have equal access. [See Affidavit of David Wilson, filed herewith]
  13. This stop was also illegal and in violation of not just the equal protection provisions of the Massachusetts Declaration of Rights and the United State Constitution, but of the Massachusetts General Laws ' 85, 11b, which gives bicyclists the same rights and responsibilities to use the roadways as operators of any other vehicle.
  14. Andrew Fischer is an attorney who, as part of his practice, represents bicyclists and has some modest knowledge of Massachusetts laws regarding bicyclists. Mr. Fischer also chooses to bicycle as his principle mode of transportation.
  15. On July 7, 1998, Mr. Fischer was stopped by a Massachusetts State Police Officer Whittier while bicycling on Route 9 in the Chestnut Hill section of Newton, Massachusetts. State Police Officer Whittier ordered Mr. Fischer to get off the road and onto the sidewalk, even though Route 9 is also a public road to which all citizens of the Commonwealth have equal access. 22. When Mr. Fischer tried to explain that not only did he have the right to bicycle on the road but that it was more dangerous to bicycle on the sidewalk, the State Police Officer began yelling and threatened to arrest Mr. Fischer if he did not get off the roadway.
  16. Mr. Fischer made complaint of this to the superintendent of the State Police, Defendant DiFava's predecessor, Colonel Reed Hillman, but the stopping and harassment of bicyclists using public ways has continued. A copy of Mr. Fischer's July 7, 1998 letter to Colonel Hillman is attached hereto as Exhibit A and incorporated herein.
  17. Paul Schimek is a transportation engineer, who for many years was employed by the United States Department of Transportation Volpe Center in Kendall Square, Cambridge. Mr. Schimek also frequently uses a bicycle as his means of transportation.
  18. On October 27, 1998, Mr. Schimek was stopped by a Massachusetts State Police Officer while bicycling on the Jamaicaway, in Boston, Massachusetts. The State Police officer told Mr. Schimek that he was not permitted to bicycle on the Jamaicaway roadway, even though the Jamaicaway is also a public road to which all citizens of the Commonwealth have equal access.
  19. This stop also was illegal and in violation of not just the equal protection provisions of the Massachusetts Declaration of Rights and the United State Constitution, but of the Massachusetts General Laws ' 85, 11b, which gives bicyclists the same rights and responsibilities to use the roadways as operators of any other vehicle.
  20. These stops are examples of an ongoing pattern of interfering with the rights of bicyclists to equal access to the public ways and roads of the Commonwealth, which pattern constitutes a violation of equal protection under the law. This is an ongoing and willful institutional pattern of deliberate neglect of the rights of bicyclists. It is conducted with the perhaps well intentioned belief that it is somehow not safe for bicyclists to share the roadway with other vehicles on Soldier's Field Road, Memorial Drive, Route 28, Route 9 and certain other roads which these defendants consider to be too heavily trafficked with motor vehicle traffic for bicycles. This notion, however well intended, is not only illegal but contrary to every known standard for effective cycling.
II. Facts Regarding the Wrongful Arrest of Peter Rowinsky
  1. On Friday, May 26, 2000, Plaintiff Peter Rowinsky was lawfully operating his bicycle in Memorial Drive in Cambridge, a public road and Metropolitan District Commission Parkway to which all citizens of the Commonwealth have equal access, upon which the plaintiff is expressly permitted to travel as a bicyclists, pursuant to M.G.L., c. 85, ' 11b.
  2. Defendant Walsh, in violation of the plaintiff's right to use Memorial Drive, a public road which all citizens have an equal right to use, ordered Plaintiff Rowinsky to stop riding his bicycle on the roadway.
  3. When the plaintiff did so, he was arrested and charged with refusing to stop for a lawful order of a police officer and disorderly conduct. In fact, the plaintiff had stopped, obeying the order of defendant Walsh but, in fact, the order was not a lawful order.
  4. These criminal charges which defendant Walsh brought against the plaintiff eventually were dismissed by the Cambridge District Court, but only after the plaintiff had been locked up and deprived of his freedom, denied other constitutional rights, including the right to due process and equal protection under the law, incurred legal fees and the expense and inconvenience of defending the criminal charges against him and suffered other damages, monetary and otherwise.

STATEMENT OF CLAIMS

Count I
FALSE IMPRISONMENT
  1. Plaintiff repeats and realleges each of the preceding paragraphs.
  2. Defendant Walsh caused the false imprisonment of the plaintiff.
  3. As a direct and proximate result of the acts of the defendant Walsh in causing the false arrest and false imprisonment of the plaintiff, the plaintiff was deprived of his liberty, was caused great emotional distress, was subject to great humiliation and suffered other damages.
Count II
VIOLATION OF CIVIL RIGHTS
  1. Plaintiff repeats and realleges each of the preceding paragraphs.
  2. The defendants' conduct, as set forth above, in denying the plaintiff and other bicyclists their right to use the public ways of Massachusetts the same as any other citizen who operates a vehicle on a public way, violated plaintiff's civil rights, guaranteed under the United States Constitution, 42 U.S.C. '1983, the Massachusetts Declaration of Rights and M.G.L., c. 2, '' 12H and 12I,including but not limited the right to equal protection under the law, the right to be free from unreasonable seizures, the right to due process of the law, the right of free speech and assembly, the right to be free from unlawful arrest and prosecution without probable cause, and the right to security of the person.
  3. As a direct and proximate result of the defendants' acts, the plaintiff suffered physical injury and pain and suffering, suffered great anxiety and strain, was caused great emotional distress, was subject to great humiliation and suffered other damages, monetary and otherwise.
Count III
VIOLATION OF CIVIL RIGHTS THROUGH STATE POLICY AND PRACTICE
  1. Plaintiff repeats and realleges each of the preceding paragraphs.
  2. Defendants Lalli, Perlov, DiFava and the Commonwealth of Massachusetts maintained and continue to maintain a policy or custom of failing to train its State Police officers adequately and reasonably regarding the rights of bicyclists to use the public ways of the Commonwealth and of failing to educate its State Police officers regarding bicycle law and safe bicycle practice, and of failing to supervise its State Police officers in their encounters with bicyclists.
  3. Said policies and customs evidenced a deliberate indifference on the part of Defendants Lalli, Perlov, DiFava and the Commonwealth of Massachusetts City to the Constitutional rights of Plaintiff Rowinsky. Said policies and customs specifically include the failure to adopt and implement reasonable procedures to prevent State Police officers from stopping bicyclists, including the plaintiff, and interfering with the rights of bicyclists to use the public ways and the roads of the Commonwealth the same as other citizens.
  4. Defendants' official policy or custom proximately caused the plaintiff's injury and damage.
Count IV
PRAYER FOR INJUNCTIVE RELIEF
  1. Plaintiff repeats and realleges each of the preceding paragraphs.
  2. Lack of knowledge of bicycle law and bicycle safety is ongoing problem for citizens, such as the plaintiff, who choose to bicycle rather than use a motor vehicle.
  3. Often, when state police officers stop bicyclists, as described above, the stops are well intended but ill-informed attempts to "protect" bicyclists from mis-conceived "dangers" of riding in traffic. This is the result of state police officers not only not knowing the law, as it applies to bicycling, but not knowing basic rules of bicycle safety and safe cycling techniques.
  4. Plaintiff and others of the bicycle community have sought other relief, as indicated, for example by letters of Miller, Fischer and others, to no avail: therefore injunctive relief is the only way to obtain equal right to use the road and proper training of State Police officers as to rights and responsibilities of bicyclists.

WHEREFORE, plaintiff prays this Honorable Court award the following relief:

(1) that this Court, after hearing, issue a preliminary injunction enjoining the defendants from preventing the plaintiff or any other bicyclist from using the roads and public ways of the Commonwealth the same as any other citizen and enjoining the defendants from interfering with the free use of the roads and public ways of the Commonwealth in the same manner as any other citizen who may use a motor vehicle rather than a bicycle;

(2) that this court, upon final hearing and trial on the merits, issue a permanent injunction enjoining the defendants from preventing the plaintiff or any other bicyclist from using the roads and public ways of the Commonwealth the same as any other citizen and enjoining the defendants from interfering with the free use of the roads and public ways of the Commonwealth in the same manner as any other citizen who may use a motor vehicle rather than a bicycle;

(3) that this Court, after hearing, issue a preliminary injunction ordering the defendants to commence a training program teaching its State Police officers the laws of the Commonwealth regarding the rights of bicyclists to use the roads and ways of the Commonwealth, and regarding bicycle safety and safe bicycling techniques;

(4) that this Court, upon full hearing and trial on the merits, issue a preliminary injunction ordering the defendants to commence a training program teaching its State Police officers the laws of the Commonwealth regarding the rights of bicyclists to use the roads and ways of the Commonwealth, and regarding bicycle safety and safe bicycling techniques;

(5) that this Court enter judgment for the plaintiff against each of the defendants, jointly and severally, in such amount that the Court may deem just and proper, plus interest, costs, and attorney's fees in such amount as that which the plaintiff may be entitled, and

(6) that this court award such other monetary or equitable relief as may be just, proper and appropriate.

PLAINTIFF DEMANDS A JURY AS TO ALL ISSUES.

Plaintiff by counsel

Andrew M. Fischer / JASON & FISCHER
47 Winter Street, 4th Fl., Boston, MA 02108
BB0# 167040

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