Federal civil rights trial was to begin this week
In an email last week, Barry Scott Turkowitz and his partner Bryan Richardson informed supporters that their five-year court battle with the Provincetown Police Department had come to a close:
“Late Friday, Provincetown, MA paid us off. They decided a 2 week civil trial in Federal Court would reveal too much about town management & police behavior. In pre-trial hearings, our Judge ruled against every one of the town’s requests—leaving them scared and vulnerable and we felt strong with the truth yet again. We're both celebrating a rare victory! After 5 1/2 long years trying to hold Provincetown, MA responsible for what they did to us that night, we can finally put this case behind us. Travel and a new vacation home are in the works!”
Barry Scott is a well-known activist and popular host of The Lost 45s radio show and music events. In 2007 in Provincetown, Scott was DJing at house party when the police responded to noise complaints. Scott was arrested and Richardson taken into protective custody. Both sustained injuries. Scott and Richardson had filed a federal civil rights case against the Town of Provincetown claiming they were detained without probable cause and the two arresting officers used unreasonable force when taking them into custody. That trial was to begin this week. The police involved in the incident were summer officers hired for the resort towns high season. The settlement amount is confidential.
In an email to the Provincetown Banner, Town Manager Sharon Lynn stated “The town, with assistance from town counsel and the town insurance provid...It is customary for a last-minute settlement to be negotiated and this is exactly what occurred late Friday, Nov. 2. We were certainly prepared to commence a jury trial today, as scheduled.”
The circumstances around Scott’s arrest, and the trial, took many twists and turns. In 2008 he was found guilty of resisting arrest, disorderly conduct, and disturbing the peace. Police say that on July 14, 2007 they responded to the home of Ed Foley three times to ask that the music be turned down. On the third visit, Scott turned the music off. Scott says he told the crowd of about 50 people, “They don’t like us and we don’t like them.” Police say he attempted to incite a riot and announced to the crowd, “We hate the police,”
The summer police, Officers Anthony Bova and Michael Barone, arrested Scott. Police say Scott was injured when his face “inadvertently came into contact” with the side of the house. Richardson, who was not charged with a crime or arrested, was injured while in protective custody.
The Gay and Lesbian Anti-Violence Project demanded an investigation by the town. Town Manager Sharon Lynn, state police Sgt. William Burke found that the police had done nothing unlawful.
In August, 2008, however, Scott asked the Supreme Judicial Court (SJC) to interview one of the jurors who decided his case. He reported that on July 23, one day after his trial in Orleans District Court, he received an e-mail from someone purporting to be one of the jurors in the case. Over the course of a brief e-mail exchange the alleged juror told Scott he did not believe Scott was guilty, and he admitted to talking about the case with one of the alternate jurors, which is illegal. The alleged juror also expressed dislike for "summer cops," which Scott argues puts the juror's impartiality in question; some of the officers involved in Scott's arrest were summer officers hired by Provincetown to fill out the force during the tourist season. Scott filed motions earlier this month with Judge Brian Merrick, who presided over Scott's trial, asking both to poll all six jurors who heard the case and to be granted permission to interview the juror who e-mailed him. Merrick rejected both requests, prompting Scott's appeal to the SJC.
"We brought this to Judge Merrick twice now and he's denied us the opportunity even to talk to this juror. He knows that this is illegal and yet he's denied it twice. ... So now we're appealing above his head, going to the Supreme Judicial Court," Scott told Bay Windows at the time. . Merrick formally denied Scott's request to interview the juror August 27. He ruled against Scott's motion to poll the jury on August 5.
The SJC vacated the disorderly conduct decision in 2011.
Scott has maintained that he was not resisting arrest and that the police assaulted him. Scott has also alleged that some witnesses for the prosecution lied about the events at the private party. His 2009 motion for a new trial was denied after a new witness, Quincy police officer Barry DeFranco, testified that he did not observe Scott resisting arrest when he sustained his injuries.
The original police report said that Scott was injured while resisting arrest as police tried to handcuff him. According to Scott and media reports, DeFranco testified that he saw two police officers arrest Scott and he did not resist arrest. Under cross-examination, however, DeFranco replied "negative" when asked if excessive force was used by the Provincetown police.
“Provincetown Police responded and acted appropriately,” Lynn told The Provincetown Banner. “An independent investigation confirmed this and I do not have any doubt the officers’ actions at the scene were conducted within the proper guidelines.”