MARY T. JEAN, 

Plaintiff; 

vs. 

Defendant. 

NO. 06-40031-FDS 

PLAINTIFF'S FIRST AMENDED COMPLAINT

FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF WITH RULE 19 JOINDER OF ADDITIONAL PARTIES  

COMES NOW MARY T. JEAN and invokes the jurisdiction of this Honorable Court to award her preliminary and permanent injunctive relief against the MASSACHUSETTS STATE POLICE, THOMAS G. ROBBINS, and THOMAS REILLY, as hereinafter set forth.  

I. JURISDICTION  

1.      This Court has jurisdiction in that the civil actions hereinafter pled arise under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. The Constitutional deprivation is that of free speech without prior restraint, protected under U.S. CONST. Amend. I, as statutorily implemented at 42 U.S.C. § 1983 et seq.  

II. PARTIES  

2.      Plaintiff MARY T. JEAN is a citizen of Worcester County, Massachusetts. She has the capacity to sue in that she can demonstrate an injury in fact, causation, and redressability. The nature of the Plaintiff s injury is deprivation of her constitutionally protected free speech by the chilling effects of an impermissible exercise of the Commonwealth's police powers.  

3.      Defendant MASSACHUSETTS STATE POLICE is an entity of the Commonwealth of Massachusetts that has been served through its General Counsel, Ann M. McCarthy, 470 Worcester Road, Framingham, MA 01702-5309 and upon the Office of the Attorney General, Commonwealth of Massachusetts, Government Bureau, One Ashburton Place, Room 2019, Boston, NIA 02108. Massachusetts State Police has been served at both offices but has not answered.  

4.      Rule 19 Additional Party THOMAS G. ROBBINS, Individually, and as Superintendent, Massachusetts State Police, is a natural person who may be served at his principal place of business at 470 Worcester Road, Framingham, MA 01702-5309.  

5.     Rule 19 Additional Party THOMAS REILLY, Individually, and as Attorney General of the Commonwealth of Massachusetts, is a natural person who may be served at his principal place of business at Government Bureau, One Ashburton Pl., Rm. 2019, Boston, MA 02108. 

III. VENUE 

6.      Venue is proper in the D-MA, Central Division, pursuant to 28 U.S.C. § 1391.  

IV. FACTS 

7.      Plaintiff is a private citizen engaged in political activity. Plaintiff operates two internet websites, "worcestervoice.com" and "Conte2OO6.com," the second of which is at issue in this case. The "Conte2OO6" site has arguably been instrumental in encouraging the District Attorney of Worcester County, MA, Hon. John Conte, not to seek re-election as he had previously announced.  

8.      In her legitimate political activities vis a vis Mr. Conte, Plaintiff posted on her "Conte2006" website, a videotaped recording of what she believes to be a warrantless and unlawful entry upon the premises of Mr. Paul Pechonis by the so-called "C-Pac" Unit of the Massachusetts State Police, a unit assigned to the selfsame Worcester County District Attorney. The recording involved was, upon information and belief, automatically videotaped by a child security system at Mr. Peconis's home. The videotape, provided to her by Mr. Peconis, captures what is arguably unlawful conduct by the Defendants here, the Massachusetts State Police. In no way does the Plaintiff’s conduct involve activities for which she has been threatened with felony prosecution under MASS. GEN. L. ch. 277 § 99, an anti-wiretapping statute intended to foil organized crime. She was in no way involved in making the videotape involved and indeed, did not even know Mr. Peconis at the time the videotape was made. 

9.      Understandably, the posting of this videotape on Plaintiffs website is an embarrassment to the Defendant Massachusetts State Police and Mr. Conte. Thus, in retaliation, the Defendant Massachusetts State Police's Counsel sent to Mrs. Jean a self-styled "cease and desist" letter, a true and correct copy of which is attached hereto as Exhibit "A" and incorporated herein by reference for all purposes.  

10.     Plaintiff's position is that Exhibit "A," is an unlawful use by the MASS. STATE POLICE Defendant acting under the authority of the THOMAS G. ROBBFNS defendant, officially and individually acting unlawfully under color of state law to impose the chilling effects of the Commonwealth's police powers to restrain her rights to free speech and expression, as set forth in letter to counsel, a true and correct copy of which is attached hereto as Exhibit "B" and incorporated herein by reference for all purposes.  

11.     On Friday, February 17, 2006, this Court, relying on Bartnicke v. Vopper, 532 U.S. 514 (2001), determined preliminarily that the provision of MASS. GEN. L. ch. 272 § 99(C)(3) that would criminalize publication of lawfully obtained material that itself arguably may have been unlawfully obtained by a third party, Mr. Pechonis in this case, is constitutionally infirm under the First Amendment to the Constitution of the United States. A Temporary Restraining Order thus issued on that date, a true and correct copy of which is attached hereto as Exhibit "C" and incorporated herein by reference. Since Bartnicke arguably invalidates a state statute, joinder of the Massachusetts Attorney General is mandated by FED. R. Civ. P. 19. 

V. FIRST COUNT: VIOLATION OF CIVIL RIGHTS UNDER § 1983 

12.    Plaintiff re-alleges pars. 5-11 in support of this claim.  

13.    At time of trial, plaintiff will prove that the conduct complained of chillingly, and with prior restraint, deprives her of her rights to free speech as prohibited in AMEND. I of the United States Constitution, as implemented in 42 U.S.C. § 1983. She also pleads for reasonable and necessary attorney's fees for herself pursuant to 28 U.S.C. § 1988.  

VI. REQUEST FOR PRELIMINARY INJUNCTION

14.     Plaintiff pleads that unless a Preliminary Injunction issue against the defendants to preclude them from further threatening conduct or in the alternative, enforcement of a constitutionally infirm state statute, she will suffer irreparable harm in that, as alleged above, her further exercise of free speech will subject her to unlawful arrest and prosecution. The harm is imminent. She further pleads that unless a preliminary injunction issue, she will have no other adequate remedy at law to protect her rights to free speech and expression, the deprivation of which for even an instant is without legal redress. She further pleads that because of the record extant in this case, that she is likely to prevail on the merits. She also pleads that any potential injury to her far outweighs any injury sustained by the defendants if injunctive relief were granted. She further pleads that injunctive relief would have a positive effect on the public interests involved.  

15.     Because of the nature of the conduct involved and the inherent public interests at stake, Plaintiff Mary T. Jean asks that a bond be set in a de minimis amount. 

VII. NOTICE OF ORAL HEARING  

16.     NOTICE IS HEREBY GIVEN TO ALL DEFENDANTS that a Preliminary Injunction Hearing has been set by the Court in this case for Tuesday, February 28, 2006 at 9:00 a.m. The taking of evidence is not anticipated and the expected purpose of the hearing is to provide all parties with ample opportunity to present their views on the legal issues. See Campbell Soup Co. v. Giles, 47 F.3d 467, 470 (1^st Cir. 1995).  

VIII. REQUEST FOR PERMANENT INJUNCTION 

17.     Plaintiff also requests that upon completion of trial of this case, a permanent injunction issue to prevent further violations of the unlawful conduct cited herein and enforcement of a constitutionally infirm statute.  

IX. REQUEST FOR RELIEF

18.    Plaintiff asks that upon notice and hearing, she have the preliminary injunctive relief sought. She also asks for permanent injunctive relief. She also asks for reasonable and necessary attorneys' fees as provided by law. She asks for such other and further relief to which she may show herself justly entitled.  

Respectfully submitted,

DANIEL J. SHEA, P.C.

ATTORNEY FOR PLAINTIFF 

CERTIFICATE OF SERVICE 

Service on February 22, 2006 is made to the extant party Massachusetts State Police pursuant to FED. R. Civ. P. 5 and courtesy electronic transmission to Assistant Attorney General Rosalyn Garbose at rosalyn.garbose@ago.state.ma.us. Service on Rule 19 Parties by summons and courtesy electronic transmission on Ms. Garbose.  

/s/ Daniel J. Shea (ECF)

March 30, 2006

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
_______________________________________________
MARY T. JEAN )
)
Plaintiff, )
)
v. )
) C.A. NO. 4:06-CV-40031-FDS
COMMONWEALTH OF MASSACHUSETTS et als )
)
Defendants )
_______________________________________________)
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PRELIMINARY INJUNCTION
The defendants submit this memorandum in opposition to the plaintiff’s request for the
issuance of a preliminary injunction.
FACTS
A. Allegations of the Complaint
On the facts alleged in the complaint, the State Police had reason to believe that both
Mary Jean and Paul Pechonis may have violated G.L. c. 272, sec. 99. They claim that Mr.
Pechonis surreptitiously recorded conversations of troopers who were executing an arrest
warrant in his home. Ms. Jean subsequently obtained the recording from Mr. Pechonis and
broadcast it on her website. Mr. Pechonis also broadcast the recording on his website.
Instead of seeking charges against Ms. Jean under the Massachusetts wiretapping statute,
the State Police took a gentler course and sent her a letter, the first paragraph of which advised
her that Mr. Pechonis had made the recording, secretly and without the knowledge or consent of
Case 4:06-cv-40031-FDS Document 12 Filed 03/30/2006 Page 1 of 12

1 Section 99(C)(1) treats as a felony any “willful” interception or
attempted “interception” [i.e., secret hearing or recording] of a “wire
communication” through the use of an intercepting device without the prior
authority of all parties to the communication. M.G.L. c. 272, §99 (B) and (C) (1).
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the troopers, in violation of Massachusetts General Laws Chapter 272, section 99, and that his
conduct was “subject to prosecution as a felony.”1
As to Ms. Jean’s own conduct, the second paragraph of the letter stated
Unless you cease and desist, within 48 hours of receipt of this letter, from posting this
unlawful tape on the internet or any other publicly accessible site, the Department will
refer this matter to the District Attorney’s office for further investigation and possible
prosecution.
Ms. Jean’s complaint in this action seeks an order “preclud[ing] [the State Police] from
further threatening conduct.” She also claims that she will suffer irreparable harm in that she is
subject to “unlawful arrest.”
B. Plaintiff’s Deposition Testimony
The plaintiff was deposed in this action on March 29, 2006. The full transcript of her
deposition and exhibits will be submitted to the court at the March 31st injunction hearing. In
summary, she testified as follows:

1. She first posted the September 29, 2005 recording, with both video and audio, on
her conte2006.com website on January 29, 2006.

2. She had no involvement in the making of the recording, and had never had any
contact with Paul Pechonis until October 17, 2005, when he e-mailed her; they
spoke by telephone on October 21st or 22nd. She first met with him in the first or
second week of November and again around January 7th. After posting the
recording on her website, she met again with Pechonis in early February and on
Case 4:06-cv-40031-FDS Document 12 Filed 03/30/2006 Page 2 of 12 -3-
Wednesday and Friday of last week.

3. Pechonis contacted her in October to request her help in publicizing his “story” of
the arrest, specifically by writing and posting articles, and by posting the
recording, on her conte2006.com website.

4. She listened to the audio portion of the recording over the telephone and asked
him to send her a digital copy of it over the Internet. He sent it to her as an
attachment to an e-mail on October 21-22. She viewed it and listened to it, and
then wrote an article about the arrest, which she posted on her website on October
23d. She did not then post the recording on the website because the website was
not then fully operational (it became fully operational in January).

5. She knew from prior experience that the secret recording of conversations is
illegal, although she denies then knowing that there are federal and Massachusetts
wiretapping statutes.

6. Pechonis told her that the recording was made unintentionally by a babycam, and
that he did not know know the babycam had been activated when the police
arrived at his house. He did not explain how it had been activated and she did not
ask him. She took his statement that it was unintentional at face value.

7. She knew that the recording was secretly made and that the police had not
consented because Pechonis told her that they did not know it was being made.

8. She asked Pechonis if his making of the recording was legal, and to ask his
lawyer this question and get back to her. If Pechonis had told her that his making
the recording was illegal, she “would not have touched the tape.. I was aware that
Case 4:06-cv-40031-FDS Document 12 Filed 03/30/2006 Page 3 of 12

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recording voices, conversations, was illegal” because of her knowledge of a
clergy abuse case in 2003. He did not get back to her on this subject, and she did
not press the matter with him.

9. Without knowing whether the making of the recording was legal, she did her own
research on whether her dissemination of it would be legal. She researched on the
Internet under the words “babycam” and “videocam.” She found several instances
in which the media displayed babycam recordings that had been used as evidence
in prosecutions involving an abusive babysitter, police brutality, and the like.

10. She did not consult counsel. Based on her Internet research, she satisfied herself
that her dissemination of the recording was legal. She also “assumed” that the
making of a secret babycam recording in a home is legal, but “never questioned
his making it” and did not “look into the legality of that.”

11. The plaintiff first heard of the Massachusetts wiretapping law, M.G.L. c. 272,
§ 99, in the February 14th letter of State Police deputy counsel Ann McCarthy. As
stated in ¶ 6 of her verified complaint, and reaffirmed at her deposition, the
plaintiff believes that the law is only “intended to foil organized crime,” and does
not apply to law abiding citizens such as herself. For this reason, and contrary to
her prior testimony that she “would not have touched the tape” if she knew it was
illegally made, she believes that the statute is not an impediment to her
disseminating the recording, even if it was illegally made by Pechonis.

12. She claims to be chilled in exercising her First Amendment rights, specifically,
that she will be arrested by the State Police and prosecuted by District Attorney
Case 4:06-cv-40031-FDS Document 12 Filed 03/30/2006 Page 4 of 12

2 Section 99(C)(3) treats as a misdemeanor any “willful” disclosure or use, or
attempted disclosure or use, “of the contents of any wire or oral communication,
knowing that the information was obtained through interception.” M.G.L. c. 272,
§99 (C) (3)(a), (b).

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John Conte under the Massachusetts wiretapping law.
13. She claims that she fears prosecution even if she removes the audio portion from
the recording and only posts the video portion.

14. She has not been threatened with prosecution by District Attorney Conte.

15. She claims to believe that the only thing standing between her and prosecution is
the Bartnicki decision and this court.

ARGUMENT
The court should decline to issue a preliminary injunction because the plaintiff cannot
show an imminent threat of irreparable harm, there has been no prior retsraint, and the Bartnicki
precedent is inapplicable because this plaintiff obtained the illegal recording illegally, in that she
got it directly from the interceptor and she knew or had reason to know that it was illegally
made.
A. An Imminent Threat of Irreparable Harm is Not Shown
At the outset, Ms. Jean cannot carry her burden of showing an imminent threat of
irreparable harm. She has not been charged with any crime and, despite her allegation, has not
been threatened with arrest. The government has not sought to enjoin her activity. Her
disclosure of the recording on her website, by itself, is at most a misdemeanor under M.G.L. c.
272, §99 (C)(3), for which she is not subject to arrest.2 The reference in the last sentence of the
first paragraph of the State Police letter to “felony prosecution” expressly refers to the making of
Case 4:06-cv-40031-FDS Document 12 Filed 03/30/2006 Page 5 of 12

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the recording by Pechonis and informs her that his conduct was felonious. It does not refer to the
plaintiff’s dissemination of the recording, which is addressed in the second paragraph. Referring
to her future conduct, that paragraph warns her to cease and desist, now that she knows the
recording was illegally made, and only threatens to refer “this matter to the District Attorney for
“further investigation and possible prosecution” if she does not. Nowhere in the letter is there a
threat to arrest Ms. Jean.
As stated in the letter, any prosecution would be brought by the District Attorney, not the
State Police. The District Attorney is not a party to this action and has made no threat to
prosecute. If he were to bring a charge, Ms. Jean would not be treated any differently from
anyone else subject to the General Laws of the Commonwealth, and she would have an
opportunity to raise her First Amendment claim in a state court proceeding. Given the absence
of state action against Ms. Jean, the absence of any unique harm to her, the speculation about
what harm might befall her, and the availability for relief in state court in the event of a
prosecution, this court should decline to grant relief.
The case is not comparable to the First Circuit’s First Amendment injunction decisions in
which a plaintiff has been subjected to a credible threat of arrest and prosecution. In each of
those cases, it was clear that the authorities already had enough evidence for a prosecution when
they threatened the plaintiff, and so the threat was real enough. See Rhode Island Assoc. Realtors
v. Whitehouse, 199 F.3d 26, 33 (1st Cir. 1999).
By contrast, the plaintiff in this case has not shown that the State Police had comparable
evidence on February 14th when the letter was sent. As of that date, they knew only what they
and the world could see on her Internet website. They had no evidence of whether she had been
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involved in making the recording, how she had obtained it or from whom, or whether she knew
that it was made illegally. They had no basis for a prosecution.
A fair reading of the letter is that it put Ms. Jean on notice that the tape was illegally
made and that she ran the risk of violating the law if she continued disseminating it, now that she
knew of its illegality. It is not a credible threat of prosecution
B. No Prior Restraint is Shown
An injunction should also be denied because Ms. Jean has not demonstrated the existence
of a prior restraint. The complaint alleges that the letter constitutes a prior restraint. The letter
informed her of the statute in question (which she did not know about), advised her that the
recording was illegally made, and warned her that her future dissemination of it is illegal and
would result in referral to the District Attorney’s Office for “possible” prosecution. Such an
advisory does not constitute “informal censorship” as discussed in the obscenity case of Bantam
Books v. Sullivan, 372 U.S. 58, 66-70 (1963), and falls short of being a prior restraint.
The Supreme Court has expressly stated that such an advisory letter is not a prior
restraint: “[W]e do not mean to suggest that private consultation between law enforcement
officers and distributors prior to the institution of a judicial proceeding can never be
constitutionally permissible. We do not hold that law enforcement officers must renounce all
informal contacts with persons suspected of violating valid laws prohibiting obscenity. Where
such consultation is genuinely undertaken with the purpose of aiding the distributor to comply
with such laws and avoid prosecution under them, it need not retard the full enjoyment of First
Amendment freedoms.” Bantam, 372 U.S. at 71-72. The plain language of the State Police
Case 4:06-cv-40031-FDS Document 12 Filed 03/30/2006 Page 7 of 12

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letter indicates that it was provided to aid Ms. Jean in complying with a complex statute. This
court should not discourage such governmental conduct.
C. Plaintiff Has Little Likelihood of Success on the Merits
The court issued its temporary restraining order, based only on the allegations of the
complaint, citing the Bartnicki decision. It now emerges from legal and factual developments in
the last three days that the holding in Bartnicki does not apply to the facts of this case after all.
The new legal development is the decision in Boehner v. McDermott, and the new facts have
been elicited from Ms. Jean on deposition.
Bartnicki v. Vopper Does Not Apply on These Facts
Ms. Jean’s dissemination is not protected by the First Amendment, in the circumstances
here presented, on a close analysis of the decision in Bartnicki v. Vopper, 532 U.S. 514, 518
(2001). In that case, an audio recording of intercepted cell phone conversations was found in a
mailbox with no indication of its origin. After the recipient shared the recording with the local
media, those involved in the conversations sought damages under state and federal wiretap
statutes. The Supreme Court held that Vopper’s dissemination of the intercepted material was
protected speech under the First Amendment. Bartnicki, 532 U.S. at 518.
The Supreme Court expressly indicated that the holding in Bartnicki would not apply in
the circumstances presented here, and emphasized that it was addressing a very narrow question:
“‘Where the punished publisher of information has obtained the information in question in a
manner lawful in itself but from a source who has obtained it unlawfully, may the government
punish the ensuing publication of that information based on the defect in a chain?’” Bartnicki,
532 U.S. at 528 (emphasis added) (citation omitted). In Bartnicki, there was no evidence of
Case 4:06-cv-40031-FDS Document 12 Filed 03/30/2006 Page 8 of 12

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where the recording came from, or that it had been secretly intercepted without the consent of
the parties, or that it had otherwise been obtained in an unlawful manner. By contrast, Ms. Jean
obtained the recording in a manner prohibited by law –- Pechonis gave it directly to her, in
apparent violation of the statute. There is no “defect” in the chain between the interceptor and
the disseminator.
Ms. Jean cannot avail herself of First Amendment protection because she did not obtain
the recording through a lawful transaction. Contrast Bartnicki, 532 U.S. at 520 (recording found
in mailbox); Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 102 (1979) (juvenile’s name
obtained by asking questions of witnesses and investigators); Florida Star v. B.J.F., 491 U.S.
524, 526 (1989) (rape victim’s name obtained from publicly released police report); Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 837 (1978) (“not here concerned with the
possible applicability of the statute to one who secures information by illegal means”); Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469, 472 (1975) (rape victim’s name obtained from
indictments made available to public); New York Times Co. v. United States, 403 U.S. 713
(1971) (no evidence documents were unlawfully provided to newspapers).
Boehner v. Mcdermott is the Applicable Precedent
The present case is very similar to the facts presented in Boehner v. McDermott. In that
case, a couple secretly intercepted a telephone call involving Congressman John Boehner. They
turned the recording over to Congressman James McDermott, who shared the recording with the
media. When Boehner sought damages against McDermott under wiretap statutes that
prohibited dissemination of intercepted material, McDermott claimed that the First Amendment
protected his disclosure.
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The district court disagreed, and distinguished the case from the holding in Bartnicki:
“In Bartnicki, defendant ‘Yocum . . . testified that he had found the tape in his mailbox shortly
after the interception’ and then later delivered the tape to radio commentator Vopper who, along
with ‘other individuals and media representatives,’ published the contents of the conversation
found on the tape [citation omitted]. In the instant case, however, McDermott actively accepted
the tape from the people who had illegally recorded it.” Boehner v. McDermott, 332 F. Supp.2d
149 at 168.(D.D.C. 2004). Similarly, Ms. Jean “actively accepted the tape from [Mr. Pechonis]
who had illegally recorded it.” Id. Ms. Jean’s active participation in helping Mr. Pechonis
disseminate the recording distinguishes the instant case from Bartnicki and leaves her without
First Amendment protection.
Any doubt is dispelled by this week’s decision of the Court of Appeals, affirming the
district court. Boehner v. McDermott, __ F.3d __, WL 769026 (D.C. Cir. slip op. 3/28/06).
Drawing directly from the plurality opinion in Bartnicki, as limited by the concurring opinion of
Justices Breyer and O’Connor, the Court of Appeals distinguished Bartnicki and reached the
opposite result. The court held that the intentional disclosure of an illegally-intercepted
conversation violates the federal wiretapping statute “if the person disclosing the
communication knew or had ‘reason to know’ that it was so acquired.” Boehner, slip op. at 6.
Emphasizing the anonymity of the interceptor in Bartnicki, the court held that McDermott’s
obtaining the tape directly from the interceptors with knowledge that they had violated the
statute by using a police scanner to intercept a conversation, and again when they disclosed it to
him, meant that he had illegally obtained it, under either an aiding and abetting theory or a
conspiracy theory. The difference from Bartnicki “is the difference between someone who
Case 4:06-cv-40031-FDS Document 12 Filed 03/30/2006 Page 10 of 12

3 Notably, in a footnote to the Bartnicki decision, the Supreme Court itself
foreshadowed the later decisions in Boehner by recognizing a significant distinction from the
facts at issue in Boehner: “In the Boehner case [before remand to the District Court], as in this
suit, a conversation over a car cell phone was intercepted, but in that case the defendant knew
both who was responsible for intercepting the conversation and how they had done it.”
Bartnicki, 532 U.S. 522 at fn. 5. See also the concurring opinion in Bartnicki, 532 U.S. at 538
(“No one claims that [the defendants] ordered, counseled, encouraged, or otherwise aided or
abetted the interception, the later delivery of the tape by the interceptor to an intermediary, or the
tape’s still later delivery by the intermediary to the media.”) (emphasis added); Id. at 541 (“I
consequently agree with the Court’s holding that the statutes as applied here violate the
Constitution, but I would not extend that holding beyond these present circumstances.”).
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discovers a bag containing a diamond ring on the sidewalk and someone who accepts the same
bag from a thief, knowing the ring inside has been stolen. The former has committed no offense;
the latter is guilty of receiving stolen property, even if the ring was intended only as a gift.”
Boehner, slip op. at 14 (citations omitted).3
Thus, the so-called Daily Mail line of cases (including Bartnicki) only provides First
Amendment protection to publishers who have not dealt directly with the interceptor. See
Quigley v. Rosenthal, 327 F.3d 1044, 1067 (10th Cir. 2003) (no First Amendment protection for
publisher who knew identity of interceptor), cert. denied, 540 U.S. 1229 (2004).
On her deposition, Ms. Jean has provided facts, not previously known, which bring her
squarely within the scope of Boehner, not Bartnicki. She obtained the tape directly from
Pechonis; she knew he had intercepted the conversation by use of a recording device, without the
knowledge or consent of the State Police troopers; and she even knew that the secret recording of
conversations is illegal. For this reason alone, she is not entitled to the protection of this court.
CONCLUSION
Rather than being enjoined, the State Police should be applauded for refraining from
charging Ms. Jean until she at least understood that she was violating the law. To its credit, the
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State Police recognized that the wiretap statute may be little understood by the average citizen
who might mistakenly think that the statute is “solely a ‘Mafia busting tool,’” as Ms. Jean says
she thinks. Commonwealth v. Mejia, 64 Mass. App. Ct. 238, 245 (2005). Their letter put Ms.
Jean on notice that the recording was illegal because it was made secretly and without consent,
and also that the “class of people subject to wiretaps includes more than ‘full-time professional
criminals.’” Commonwealth v. D'Amour, 428 Mass. 725, 736 (1999) (quoting Commonwealth
v. Thorpe, 384 Mass. 271, 277 n.6 (1981), cert. denied, 454 U.S. 1147(1982)). Even
conversations of police officers performing their official duties are not to be secretly recorded
and disseminated. See Commonwealth v. Hyde, 434 Mass. 594, 599-600 (2001).
The court should decline to enter a preliminary injunction.
Respectfully submitted,
THOMAS F. REILLY
ATTORNEY GENERAL
/s/ Ronald F. Kehoe
Ronald F. Kehoe BBO No. 264260
Assistant Attorney General
Office of The Attorney General
One Ashburton Place, Room 1813
Boston, MA 02108
(617) 727-2200, ext. 3221
CERTIFICATE OF SERVICE
I Ronald F. Kehoe hereby certify that this document(s) filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies
will be sent to those indicated as non registered participants.
/s/ Ronald F. Kehoe
March 30, 2006 Ronald F. Kehoe, Assistant Attorney General
Case 4:06-cv-40031-FDS Document 12 Filed 03/30/2006 Page 12 of 12
 

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
CENTRAL DIVISION
MARY T. JEAN, §
§
Plaintiff; §
§
vs. §
§
MASSACHUSETTS STATE POLICE; § NO. 06-40031-FDS
THOMAS G. ROBBINS, Individually, §
and as Superintendent, Massachusetts §
State Police; and THOMAS REILLY, §
Individually, and as Attorney General of §
the Commonwealth of Massachusetts §
§
Defendant. §
PLAINTIFF’S MOTION FOR RULE 11 SANCTIONS
AND OTHER RESPONSE TO THE DEFENDANTS’
MEMORANDUM IN OPPOSITION TO PRELIMINARY INJUNCTION
COMES NOW MARY T. JEAN and moves that “the defendants” and their attorneys who
have violated FED. R. CIV. P. 11(b)(1) and (2) be sanctioned for material misrepresentations of the
law, and for cause would show as follows:

I. THE OFFENSE
On March 30, 2006, with less than twenty fours hours notice to the Plaintiff before a hearing
on a Preliminary Injunction scheduled by this Court (March 31, 2006, 1030 EST), “the defendants”
filed a Memorandum in Opposition to Preliminary Injunction (Doc.#12). In the Memorandum, “the
defendants” inter alia, attack the “irreparable harm” prong of Plaintiff’s injunctive relief requirement
by making the following material misrepresentation of law to this Court:
“Her disclosure of the recording on her website, by itself, is at most a misdemeanor under
M.G.L. c. 272 §99 (C)(3), for which she is not subject to arrest. Section 99(C)(3) treats as a
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misdemeanor any ‘willful’ disclosure or use, ‘of the contents of any wire or oral communication,
knowing that the information was obtained through interception.’ M.G.L. c. 272, §99 (C) (3)(a),
(b).” Memorandum at p. 5, par. A. An Imminent Threat of Harm is Not Shown (emphasis added).
In fact, the relevant statute provides for the following penalty, the real threat of which
constitutes the immediate threat of irreparable harm:
C. Offenses
. . .
3. Disclosure or use of wire or oral communications prohibited.
Except as otherwise specifically provided in
this section any person who—
a. willfully discloses or attempts to disclose to any
person the contents of any wire or oral
communication, knowing that the information was
obtained through interception; or
b. willfully uses or attempts to use the contents of any
wire or oral communication, knowing that the
information was obtained through interception, shall
be guilty of a misdemeanor punishable by imprisonment
in a jail or a house of correction for not more
than two years or by a fine of not more than five
thousand dollars or both.
MASS. GEN. L. ch. 272 § 99(C)(3)(a), (b)(emphasis added).
Too cute by half.
II. RELEVANT LAW
Anyone presenting a motion must “certify [] that to the best of the person's
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances,” the paper being filed does not violate one of Rule 11's prohibitions.
FED. R. CIV. P. 11(b). With respect to a legal contention, an argument is not frivolous
if the claims, defenses, and other legal contentions therein are warranted by existing
law or by a non-frivolous argument for the extension, modification, or reversal of
existing law or the establishment of new law.
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Roger Edwards, LLC v. Fiddes & Son Ltd., 437 F.3d 140 (1st Cir.2006).
III. THE REMEDY
A sanction imposed for violation of this rule shall be limited to what is sufficient to
deter repetition of such conduct or comparable conduct by others similarly situated.
Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of,
or include, directives of a non-monetary nature, an order to pay a penalty into court,
or, if imposed on motion and warranted for effective deterrence, an order directing
payment to the movant of some or all of the reasonable attorney’s fees and other
expenses incurred as a direct result of the violation. . . . Monetary sanctions may not
be awarded against a represented party for a violation of subdivision (b)(2).
FED. R. CIV. P. 11(c)(2).
Given that the misconduct involved here is material misrepresentation of the law by the
Chief Law Enforcement Officer of the State and the Chief Police Official, the Plaintiff moves that
the Court impose the full panoply of sanctions to deter conduct of thus type. Plaintiff further
suggests that the Court may, on its own initiative, “. . . enter an order describing the specific conduct
that appears to violate subdivision (b) and direct [] an attorney, law firm, or party to show cause why
it has not violated subdivision (b) with respect thereto.” FED R. CIV. P. 11(c)(1)(B).
IV. THE BARTNICKI ANALYSIS
The defendants now urge that the Court depart from Supreme Court precedent in Bartnicki
“as limited by the concurring opinion of Justices Breyer and O’Connor” and follow the D.C. Circuit
in what appears to be second iteration of Boehner v. McDermott. Memorandum at 10-ff. Given the
11th hour interposition of this argument and its attendant lack of notice, and without waiver of her
right to object to it on due process grounds, Plaintiff can nevertheless likely prevail on this argument
upon further briefing for the following reasons.
According to the Defendants’ version, Boehner distinguished itself from Bartnicke “either
under an aiding and abetting theory or a conspiracy theory.” Memorandum at 10. To the contrary,
nothing in Ms. Jean’s deposition supports either of these theories. More importantly, both Boehner
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and Bartnicki are post facto cases in which an intermediate scrutiny is applied. This is a prior
restraint case that demands strict scrutiny. But even assuming, arguendo, that intermediate scrutiny
is applied, this Court, following Bartnicke’s counsel, must determine de novo “whether the interests
served by [the statute] can justify its restrictions on free speech.” Bartnicke. In that case, “[t]he
government identified two interests served by the statute – first, the interest in removing an incentive
for parties to intercept private conversations, and second, the interest in minimizing the harm to
persons whose conversations have been illegally intercepted.” Id. Here, the government can
identify neither. Instead, what has been recorded, intentionally or otherwise, is conduct of public
officials making a public arrest, (the Rodney King scenario), coupled with a six man search of the
premises far outside the lunging-range of a handcuffed defendant surrounded by police in the open
fron door of his home. The only consequence to the government from this publication is correction
of its own activities that arguably violate the Fourth Amendment to the Constitution of the United
States. Thus, even under the lowest level rational basis test, the government cannot prevail. If that
is “harm” to the government, so be it!
V. CONCLUSION AND REQUEST FOR RELIEF
Without waiver of her right to object to the eleventh hour interposition of what appears to
be a second iteration of Boehner v. McDermott [its first iteration at 191 F.3d 463 (D.C.Cir.1999) was
effectively over-ruled in Bartnicke] and the critically public versus private interests involved – facts
that indicate likelihood of success on the merits, coupled with intentional misrepresentation of the
law of consequences by the Defendants that affects the imminent harm issue, the Preliminary
Injunction should be granted. Plaintiff also asks for reasonable and necessary attorneys= fees as
provided by both § 1988 and Rule 11. Upon final trial of the case, a Permanent Injunction is also
requested. Plaintiff also asks for such other and further relief to which she may show herself justly
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entitled.
Respectfully submitted,
DANIEL J. SHEA, P.C.
By: /s/ Daniel J. Shea (ECF)
B.B.O.# 652896
1928 West Bell Street
Houston, TX 77019-4814
(713) 942-7500 Telephone
(713) 942-7507 Telecopier
(832) 647-3612 Mobile
DJS7500@aol.com
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
Service on March 30, 2006 at 2200 EST. is made to the defendants pursuant to Local Rules
on ECF and to those not listed thereon, via FED. R. CIV. P. 5 on March 31, 2006.
/s/ Daniel J. Shea (ECF)
Case 4:06-cv-40031-FDS Document 13 Filed 03/30/2006 Page 5 of 5

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