1

1 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
2

3 RYAN N. SCEVIOUR, )
)
4 Plaintiff )
)
5 -VS- ) CA No. 17-12191-GAO
)
6 COLONEL RICHARD D. McKEON, et ) Pages 1 - 30
al, )
7 )
Defendants
8
-AND-
9
ALI REI, )
10 )
Plaintiff )
11 )
-VS- ) CA No. 17-12232-GAO
12 )
COLONEL RICHARD D. McKEON, )
13 et al, )
)
14 Defendants )

15

16

17
MOTION HEARING
18
BEFORE THE HONORABLE GEORGE A. O'TOOLE, JR.
19 UNITED STATES SENIOR DISTRICT JUDGE

20 United States District Court

1 Courthouse Way, Courtroom 4
21 Boston, Massachusetts 02210
March 15, 2018, 2:11 p.m.
22

23 LEE A. MARZILLI
OFFICIAL COURT REPORTER
24 United States District Court
1 Courthouse Way, Room 7200
25 Boston, MA 02210
(617)345-6787
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1 A P P E A R A N C E S:

2 LEONARD H. KESTEN, ESQ. and MICHAEL STEFANILO, JR., ESQ.,

Brody, Hardoon, Perkins & Kesten, 699 Boylston Street,
3 12th Floor, Boston, Massachusetts, 02116, for the Plaintiffs.

4 KRISTEN S. SCAMMON, ESQ., Torres, Scammon & Day, LLP,

35 India Street, Boston, Massachusetts, 02110, for the
5 Defendant, Colonel Richard D. McKeon.

6 SHEILA E. McCRAVY, ESQ. and TIMOTHY M. BURKE, ESQ.,

Law Offices of Timothy M. Burke, 160 Gould Street, Suite 100,
7 Needham, Massachusetts, 02494, for the Defendant, Major Susan
Anderson.
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1 P R O C E E D I N G S

2 THE CLERK: For a motion hearing in the two cases,

3 first one Ryan Sceviour v. McKeon, 17-12191, and AlI Rei v.

4 McKeon, 17-12232. Will counsel please identify themselves for

5 the record.

6 MR. KESTEN: Good afternoon, your Honor. Leonard

7 Kesten for the government.

8 MR, STEFANILO: Good afternoon, your Honor. Michael

9 Stefanilo, also for the plaintiffs.

10 MS. SCAMMON: Good afternoon, your Honor. Kristen

11 Scammon.

12 MS. McCRAVY: Good afternoon. Sheila McCravy for

13 Defendant Anderson.

14 MR. BURKE: Your Honor, good afternoon. Timothy Burke

15 for Defendant Major Susan Anderson.

16 THE COURT: All right, so we have the two cases with

17 similar motions, and I think the way we'll handle it is, we'll

18 hear from the defendants in each case first and then from the

19 plaintiffs, who can address each case but I think in one

20 presentation. Okay?

21 MS. SCAMMON: If I could go first, your Honor?

22 THE COURT: It seems that Mr. Burke thinks you should.

23 He sat down.

24 MR. BURKE: I spoke so long the last time, your Honor,

25 I thought maybe I'd better disguise myself today.

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1 THE COURT: I don't think it matters. Go ahead.

2 MS. SCAMMON: Good afternoon, your Honor. As our

3 motion papers reflect, we believe that the plaintiffs'

4 complaints in both cases fail to state a claim on any of the

5 counts alleged in the complaint, and, as you noted, your Honor,

6 the cases are substantially similar, so I'm going to deal

7 primarily with the Sceviour motion, and I'll talk about the Rei

8 case sort of as necessary when there's distinctions.

9 Count 1 of the complaint alleges violations of

10 Section 1983. This requires pleading a denial of plaintiffs'

11 constitutional rights. Trooper Sceviour and Trooper Rei were

12 not denied any constitutional rights. With regard to

13 Trooper Sceviour, he received a supervisory operation report.

14 He was not terminated. He did not lose rank. He did not lose

15 pay. He did not lose any benefits.

16 To state a claim under Section 1983, the plaintiff

17 must allege a property interest recognized by state law that

18 was violated without due process. There's no property interest

19 here. The Phillips v. City of Methuen case cited in our papers

20 is directly on point. There the adverse action that the

21 plaintiff relied on was a loss of a supervisory duty, no change

22 in salary, no change in rank, and the court found that he

23 failed to state a claim.

24 Now, plaintiff's opposition contends that he had a

25 property interest in continued employment, employment free from

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1 restrictions, et cetera. They cite no case law. And plaintiff

2 also admits that he failed to comply with the order that he

3 relies on that he says is unlawful, yet still suffered no

4 adverse employment action. He still has his job, his rank and

5 his salary despite that failure. There's absolutely no

6 property interest implicated here.

7 The Baez case that plaintiff cites does not help the

8 cause. First, that was a racial discrimination case, and the

9 basis of the court's decision that a reprimand in the

10 plaintiff's file was sufficient to state a claim was the

11 concern that an employer could for discriminatory purposes,

12 which was alleged, put a reprimand in someone's file and then

13 pull it out when things got ugly. That's not what happened

14 here. There's absolutely no allegation of racial discrimination,

15 and the case is not on point.

16 And even if there is a property interest here, there

17 was no violation of due process. To violate substantive due

18 process, the plaintiff has to allege contact by the colonel

19 that was egregiously unacceptable, outrageous or conscience-

20 shocking. What Colonel McKeon did here was order a revision to

21 a report that had already been impounded by a court on motion

22 of a defense lawyer to avoid pretrial publicity adverse to the

23 defendant and potentially adverse to the prosecution. This was

24 in accordance with his statutory obligations to oversee and

25 impose regulations for the drafting of reports at the State

 6

1 Police.

2 And he ordered the redactions because there was

3 unnecessary information in that report that was not relevant to

4 probable cause for the criminal defendant's arrest or the

5 charges that were brought against her. The colonel when that

6 came to light after it was impounded had an obligation to look

7 at it and determine whether it needed to be changed. If the

8 report was not corrected, it could have gotten out and

9 prejudiced the prosecution. So for all of those reasons,

10 Count 1, Section 1983, fails to state a claim. And everything

11 I just said applies to Count 2, the Mass. Civil Rights Act,

12 which requires the same deprivation of a constitutional right

13 to state a claim.

14 Massachusetts also requires that this was done by

15 threat, intimidation, or coercion. There's no allegation of

16 any of that against Colonel McKeon or any defendant. He is

17 alleged to have enforced an internal procedure to insure that a

18 report was appropriately drafted.

19 And before I move on from the federal claims, I want

20 to briefly address our qualified immunity argument. Qualified

21 immunity applies in cases like this where a government official

22 performs a discretionary function and the conduct doesn't

23 violate a clearly established statutory or constitutional right

24 of which a reasonable person would have known. As I've already

25 indicated, there was no violation of any constitutional right

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1 by my client, and the relevant question for the second part of

2 the test is, would a reasonable defendant have understood that

3 his conduct violated the plaintiff's constitutional rights?

4 And I submit that that's not possible here. Colonel McKeon's

5 order was consistent with the fact that this report had already

6 been impounded, as originally drafted, had been impounded by a

7 court for concerns of adverse pretrial publicity. He had a

8 statutory obligation over the report drafting at the State

9 Police, and he didn't fire, demote, or withhold compensation

10 from the drafter of the report. Apparently the prosecutor and

11 the judge agreed that the report as originally drafted was not

12 appropriate. Therefore, Trooper McKeon is entitled to

13 qualified immunity on the federal counts of the complaint.

14 The next count of the complaint is for civil

15 conspiracy. Plaintiffs' opposition made clear that what he's

16 alleging is a conspiracy under Section 1983. Therefore, that

17 claim fails for the same reasons that the Section 1983 claim

18 fails, because the deprivation of the constitutional right is

19 the most important part of the federal conspiracy case, not the

20 allegations of conspiracy which are conclusorily included in

21 the complaint.

22 The opposition didn't address our motion on the state

23 civil conspiracy claim, but as we indicated, there's a limited

24 cause of action in Massachusetts for a coercive conspiracy that

25 requires peculiar power of coercion over a plaintiff that the

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1 individual would not have had acting independently. I submit

2 that that's not alleged here at all. Nothing that my client

3 has alleged to have done required anyone else.

4 Another is the form of civil conspiracy actionable in

5 Massachusetts as a joint liability conspiracy, which requires

6 the defendant's substantial assistance with knowledge that he's

7 contributing to a tortious claim. There's no tort alleged

8 here. There's no allegation of tortious conduct. There's no

9 allegation of damages. There's really no allegation of

10 conspiracy. There seemed to be disagreement among the alleged

11 coconspirators as to what was going on. And absolutely no

12 knowledge of illegality on the part of my client is properly

13 alleged. In fact, this report had already been impounded.

14 The fourth count of the complaint for intentional

15 infliction of emotional distress is equally unfounded and

16 equally insufficiently pled. As the Court is probably aware,

17 mere insults, indignities, threats, annoyances, and petty

18 oppressions are not enough to make out a claim for intentional

19 infliction of emotional distress.

20 There's no extreme or outrageous conduct alleged here.

21 The conduct has to go beyond all possible bounds of decency.

22 Here this plaintiff received a report in his file. Plaintiff

23 Rei didn't receive even that. There's absolutely no outrageous

24 conduct.

25 The plaintiff relies in his opposition on public

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1 outrage, which as an initial matter doesn't appear anywhere in

2 the complaint, this alleged public outrage; and I submit that

3 merely because the public is outraged at something doesn't make

4 it actionable. In my town, the public is outraged every time

5 the superintendent cancels school. It doesn't mean that

6 somebody can sue him for that under Section 1983 or any tort.

7 And there's absolutely no facts alleged in the

8 complaint that support that Trooper Sceviour suffered severe

9 emotional distress. He doesn't even address this in his

10 opposition. It's not in the complaint. There's no allegation

11 aside from worry about job security, which I would submit is

12 something everybody worries about.

13 And his reputational harm that he relies on is alleged

14 in a very conclusory fashion and relies on public statements,

15 and I submit to the Court that the timeline as reflected in the

16 complaint and in the opposition shows that Trooper Sceviour was

17 not identified by name in any publication until after he filed

18 this lawsuit. So there's no way that my client could be

19 involved in intentionally inflicting emotional distress on

20 someone when they never mentioned him by name until after the

21 lawsuit was filed and his name was publicized, which is also

22 relevant to the defamation claim, which is Count 5.

23 As an initial matter, the complaint doesn't even quote

24 the statement that's alleged to be defamatory, which is alone

25 enough to dismiss this count. And there's absolutely no

 10

1 allegation that Colonel McKeon made a statement of or

2 concerning the plaintiff. There's no allegation that he made a

3 statement that mentioned the plaintiff by name. The plaintiff

4 was mentioned by name in the news article the day after this

5 lawsuit was filed, and the State Police issued a statement that

6 was about proper report writing and other internal matters.

7 The connection to the plaintiff by name would not have occurred

8 without this lawsuit being filed. There's absolutely no basis

9 for a defamation claim in either the complaint or the article

10 mentioned in the opposition, which I submit was not included in

11 the complaint.

12 And just the final elements of defamation are nowhere

13 alleged. There's no allegation of economic loss. As I've

14 stated a number of times, this plaintiff remains employed at

15 the same rank and same salary as before any of this happened.

16 So for all of these reasons and the reasons in our

17 briefing, this complaint should be dismissed for failure to

18 state a claim. Unless you have any questions, your Honor, I'll

19 turn it over.

20 THE COURT: When you say "this complaint," I

21 understand your argument to be addressed at both complaints?

22 MS. SCAMMON: Yes, and, you know, with the observation

23 that there's even less of a property interest in the Rei

24 complaint, if there's one at all, because she was

25 not -- there's nothing that was put in her file. And, again,
 11

1 she was asked to do something that she refused to do and was

2 still not disciplined, and still maintains her job, her rank,

3 her salary.

4 THE COURT: Okay, thank you.

5 Mr. Burke?

6 MR. BURKE: Your Honor, thank you. Your Honor, for

7 all the reasons stated by counsel, we obviously would ask to

8 adopt those as part of our argument. And to shorten this up,

9 my argument, your Honor, would be to ask the Court, if you have

10 a copy of the amended complaint, the first 41 paragraphs in

11 that complaint deal with the accident, the arrest, the

12 interview, and then the drafting of the arrest report, and that

13 takes place -- as I indicated earlier, the accident is on

14 October 16, late that evening. The arrest takes place after

15 that. Field sobriety tests, Breathalyzer tests are done.

16 She's brought back to the barracks where she's interviewed, and

17 that's where the three statements are made that were

18 subsequently redacted from the initial report.

19 So that's what the first 41 paragraphs deal with is

20 the factual scenario leading up to the actual transmission of

21 this initial police report, the arrest report, to the Worcester

22 District Court. And Paragraph 41 states, "The court officer

23 delivered the report along with other relevant documents to the

24 Worcester District Court on the morning of October 17, 2017."

25 The next paragraph states, "Trooper Sceviour heard nothing

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1 further about Ms. Bibaud's arrest on either October 17 or

2 October 18."

3 If you would just follow along with me, so there's

4 another 45 paragraphs in which there is mention made of the

5 actual process in seeking the redaction of those three

6 sentences. I'm going to ask you to go to Paragraph 86.

7 Forty-five paragraphs later you hear what happens after this

8 document, the initial arrest report, is taken to the Worcester

9 County District Attorney's office by the police prosecutor, and

10 Paragraph 86 says, "On the morning of October 17, 2017,

11 Attorney Colby," who we know is the attorney for Ms. Bidaud

12 that morning, "filed a handwritten motion asking the Court to

13 impound Trooper Sceviour's report on the grounds of

14 'prejudicial pretrial publicity.' The motion was granted."

15 So you have a report that's written. Before any

16 action is taken, a court hears this motion to impound. It's a

17 lawful, open-court proceeding, no different than this one, in

18 which the court recognizes that there is a legitimate issue

19 about the potential to pretrial publicity in those three

20 statements that are made. And the statements about oral sex,

21 the fact that her father was a judge, and how she obtained the

22 money for the heroin, none of that information provides any

23 basis for probable cause to the charges that she was charged

24 with, operating under the influence of alcohol, operating under

25 the influence of narcotics, marked lanes, no inspection

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1 sticker, and operating negligently to endanger the public.

2 So on the 17th you have a motion to impound that's

3 heard, a brief hearing, and the court allows that, and we

4 referenced this in our opposition. The motion that's filed is

5 filed under the provisions for impoundment, and there's

6 reference to what the court's discretion is under those

7 circumstances to allow or deny the motion to impound. Whatever

8 the reasons or justification was or was not, the court allowed

9 it. It's an open proceeding, and the prosecution is present as

10 well. But the suggestion is that this, after the note's

11 impounded, and the impoundment order requires the notification

12 to be given to the State Police because they're the persons who

13 drafted the report, that there is an issue with the potential

14 prejudicial content of that report. So buried in Paragraph 86,

15 which should have been Paragraph 43 to give an accurate

16 portrayal of the process that took place, that's how the

17 process begins. The notice is given to the State Police.

18 There is then the decision made to redact the statement as to

19 those three sentences that are potentially prejudicial.

20 If you look at the next paragraphs in which my client,

21 Major Anderson, is given the directive to have the officers

22 redact that portion of the report that the court has determined

23 is potentially prejudicial, there's no threat here. If you

24 look at Paragraph 71 as it pertains to the Mass. civil rights

25 claim that they've identified, putting aside for the moment

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1 whether or not there's an actual constitutional right that they

2 have identified that's supposedly been violated, if you take a

3 look at Paragraph 71 in their complaint, it says, "Trooper

4 Gilbert," he's the union rep, "informed him," the plaintiff in

5 this case, Trooper Sceviour, "that he would be charged with

6 insubordination and consequently would be subject to discharge

7 if he refused to obey Major Anderson's order."

8 That's the only -- there is nothing in this complaint

9 where there's any interference or an attempt to interfere on

10 the part of Major Anderson or any threat or coercion on her

11 part. And in point of fact, your Honor, their complaint

12 identifies that she agrees that they did -- that she doesn't

13 believe they necessarily did anything wrong in terms of putting

14 that information into the document to begin with, those three

15 sentences. You know, we don't criticize him for putting that

16 information in the initial report, but when it's gone through,

17 the issue has been raised in open court that they are

18 potentially prejudicial, a court has issued an impoundment

19 order, you have to do something about it. You can't just

20 ignore it. But they want you to believe somehow that this is a

21 grand conspiracy, at 3:00 o'clock in the morning under a

22 10-watt bulb, and everybody was out to get these officers. For

23 what purpose?

24 The court has indicated that there is a basis for

25 concern. If you go to Paragraph 88 now, which is what takes

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1 place after the redaction occurs, Paragraph 88, quote, "'A day

2 after the altered report with the markings,' revised on

3 October 19, 2017, was delivered to ADA Travers, he brought the

4 matter forward, at which time ADA Travers made an oral motion

5 to redact the original impounded report. The motion was

6 allowed."

7 So you've got a question raised about prejudicial

8 publicity. Notice is given to the police department, the State

9 Police. The redactions are made. Whether you agree with

10 whether they should or should not, it's done in compliance with

11 the court's impounding. They then have the report, the

12 redacted report with the three sentences that are removed, the

13 potential sentences that they're prejudicial. It's brought

14 back after it's redacted and marked in bold that it's revised

15 on that particular day that it's submitted, and it's brought

16 before a judge again, a second judge in open court once again.

17 And that judge allows the redacted motion to be submitted as a

18 record of the occurrence that night minus those three sentences

19 that was deemed to be potentially prejudicial. That's the nub

20 here of this entire case that's turned into a media circus, if

21 you will.

22 And if you look at the circumstances here, there is

23 nothing about this observation report that was done. They've

24 used the word "written warning" as some form of discipline, and

25 if you look at what the observation report is, it's an

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1 observation of conduct. Whether you agree that they should or

2 should not have done it, it doesn't constitute an adverse

3 employment action, and it would describe how much even less the

4 interaction with Trooper Rei was because she received no

5 observation report in the same manner that Trooper Sceviour

6 did.

7 In terms of the qualified immunity issue, you have to

8 be a boob as a police officer and to be completely oblivious to

9 the constitutional rights that everybody knows about to not be

10 given qualified immunity. If you look at this situation where

11 reasonable people, reasonable law enforcement and judicial

12 officials make a determination that this information should be

13 taken out of this report that's potentially prejudicial, how

14 can they not be entitled to qualified immunity? And under the

15 Harlow v. Fitzgerald standard, it requires that public

16 officials should not be forced to go through years of endless

17 litigation prior to making the determination of whether or not

18 they're entitled to qualified immunity. He was clearly

19 entitled to qualified immunity here.

20 If you look at the remainder of the conspiracy count,

21 these are totally conclusory allegations. There is no

22 substantive information that supports any form of conspiracy

23 whatsoever. The suggestion always has been made, from the very

24 day this case come about, that somehow there's some internal

25 extrajudicial activity that's going on, when in point of fact

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1 it's clear they had followed a path that is required and should

2 be required where there is this concern about material in a

3 police report that shouldn't be there that is at least

4 questionable. It was done in open court. There is no

5 violation of anybody's right. They have not demonstrated any

6 type of right, Constitution or otherwise, that they're entitled

7 to, nor does this even rise to the level of -- the extreme

8 that's required for a substantive due process violation.

9 If you look, step back from this, aside from the

10 publicity that's been generated on this case and look at this

11 intrinsically as to how this occurred, why it occurred, there

12 is no legitimate basis for this case to go forward, and it

13 should be dismissed on all of those counts, your Honor, and I

14 ask you to do so in good conscience and good faith.

15 THE COURT: Mr. Kesten?

16 MR. KESTEN: Good afternoon, your Honor. I just about

17 agree with Mr. Burke that if that is the evidence, that if the

18 evidence taken in the light most favorable to his client, with

19 all inferences drawn in the light most favorable to his client

20 is what he's arguing. We are not arguing the merits of the

21 case. This is a motion to dismiss. What you just heard is

22 Mr. Burke's version, along with facts not in the complaint, on

23 which he says this was all legitimate, and that is what juries

24 are for. If he's right, of course we want to point out that

25 this is, according to Mr. Burke, absolutely nothing happened

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1 here; it was all completely legitimate, and there's nothing to

2 worry about, which is why the colonel was forced into

3 retirement, the number two person on the State Police was

4 forced into retirement, and then his client was forced into

5 retirement, as was Lieutenant Colonel Risteen. Everyone

6 involved in this case has been forced out of the police

7 department as a result of what they did. But that's not before

8 you. That's not in evidence. I just want to point that out.

9 So what's the real issue if you look at our complaint?

10 As I understood, that's how we're supposed to do this. We're

11 supposed to look at the other side's facts in the light most

12 favorable to them with all inferences drawn to them as if true,

13 do we have a case? And I think Mr. Burke has just conceded

14 that we do because he's arguing different facts. He's saying

15 you have to look at it another way.

16 Your Honor, what we have alleged here -- and we

17 absolutely have a good-faith basis for alleging these facts.

18 We're not making them up. There's a lot of evidence we already

19 have. And, as you know, I tried to get more evidence. You

20 told us I can't do discovery until you decide this motion.

21 Fine. What we have alleged here is: We have a young trooper,

22 Ryan Sceviour, is about a year and a half out of the academy.

23 He's got a long career coming up, and his career has been

24 severely damaged by the actions of Mr. Burke's client, the

25 colonel and others. He is now forever going to be linked with

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1 a conspiracy to fraudulently alter a police report. It was put

2 out in the press, not by him. This story broke on a website.

3 It did not break because we filed a civil complaint. It broke

4 on a website that the State Police rigged a report to favor a

5 judge's daughter. And the facts as we allege them are

6 straightforward on what we have here, and there will be more

7 facts.

8 So he arrests her. He writes a perfectly good report.

9 Ali Rei writes a perfectly good report. They're filed in

10 court. What happens in court that Mr. Burke says is so

11 innocent and in open court, that is the subject of discovery.

12 So if you want extrajudicial facts, I'll tell you. Ms. Rei and

13 Ms. Bibaud did not have a lawyer on October 17. A lawyer

14 mysteriously appeared for her, and I suggest to you the

15 evidence is going to show -- I know it's going to show -- that

16 that first motion to impound is very sketchy.

17 Now you have the State Police. The motion to impound,

18 your Honor -- I think you have it, I think they attached it --

19 it's impounded until arraignment, the report. The arraignment

20 is scheduled for October 30, two weeks afterwards, and at that

21 point -- and they're transferring the case from Worcester

22 Middlesex County. So everyone in Worcester, everyone in the

23 State Police knows that the Worcester judges, the judges who

24 used to work with Judge Bibaud, are not going to hear to see if

25 this thing should stay impounded. And that is why we suggest

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1 the conspiracy was hatched, to create a new fictitious report.

2 So you understand, your Honor, Mr. Burke conflated it.

3 Why does it shock the conscience? This all shocks the

4 conscience at the highest levels where there's evidence that

5 people in the District Attorney's office were involved,

6 potentially judges, not Judge Bibaud, were involved in planning

7 a situation where that report, Trooper Sceviour's report would

8 disappear.

9 When the State Police write a report, a trooper writes

10 a report, a sergeant approves it, and that's the report. That

11 report went to court on the morning of October 17. It was put

12 into a court file. It could never be removed. And yet

13 Trooper Sceviour was ordered to create a new original report.

14 They unlocked the report. They wanted him to create a new

15 report to hand deliver it to the First Assistant. This is the

16 OUI first, your Honor. The First Assistant District Attorney

17 is not going to (Incomprehensible). Trooper Sceviour here

18 (Incomprehensible), that they were going to create a new

19 report, destroy the old one, put the new one in. Why? As he

20 was told and we pled, because she's the daughter of a judge,

21 and that's what we do for highly favored individuals. And this

22 young man said "no." And he insisted on writing "revised."

23 That report disappeared. Mr. Burke suggests to you that that

24 report was accepted by the court. No, the court never saw it,

25 and that's one of the things we want to find out. That was
 21

1 delivered to the First Assistant, and then it disappears.

2 What happened on Friday, the last day that this case

3 was in Worcester -- it went to Middlesex next -- on Friday the

4 First Assistant brought the case forward, the First Assistant

5 who had received this fake report brought the case forward

6 without the presence of the defense lawyer, out of the blue,

7 and redacted the original report.

8 But what's going on? Why do my clients have to

9 suffer? And if Major Anderson or Colonel McKeon or

10 Lieutenant Colonel Risteen, if they wanted to screw around with

11 court records and commit -- it's a felony to tamper with

12 official documents, but they dragged Trooper Sceviour into it,

13 and they ordered Trooper Sceviour through Major Anderson -- it

14 was a direct order. She told him it came from the top. It

15 came from Lieutenant Colonel Risteen. It came from the

16 colonel, Colonel McKeon. It came to District Attorney Joseph

17 Early, and it came from Secretary Public Safety Daniel Bennett,

18 that's what she said. And, your Honor, if that's true, and for

19 the purpose of this motion I suggest you have to accept that,

20 if that's true, that strikes at the very heart of our judicial

21 system, that the top law enforcement officials in this

22 Commonwealth conspired to alter an official court document

23 which was in court, to destroy it, to create a new one, and, to

24 make it even worse, to lean on these young -- this young

25 trooper, and Trooper Rei who's also young, not as young, to be

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1 involved in this conspiracy. Had he gone along with it and had

2 it been uncovered, his career is over. His career is in

3 jeopardy now. Your Honor, I tell you, everywhere I go people

4 say, why do you (Incomprehensible)? This has been out in the

5 press. The State Police have kept silent. There's something

6 wrong with that report.

7 Now, also this non-conscience-shocking incident is

8 being investigated by the Ethics Commission. It's being

9 investigated by a special investigator out of the State Police

10 and the Attorney General. So the central issue for you is, was

11 there an adverse employment action? Of course there was.

12 These troopers were both ordered -- Trooper Rei was ordered to

13 destroy official documents. She wrote a -- she put stuff in

14 the log, the public log, and Major Anderson, Mr. Burke's

15 client, told her, "I've destroyed it. I've removed it from the

16 computer illegally. I have torn up the paper illegally. I'm

17 giving you the one remaining copy, and you are to destroy it."

18 So now you've got a trooper, a sworn law enforcement

19 professional, who has been ordered to destroy an official

20 record. That's what happened to Trooper Rei.

21 Trooper Sceviour, as I told you -- he's cherry-picking

22 paragraphs -- Trooper Sceviour is given a direct order by a

23 supervisor to commit a crime, as he sees it, and he knows the

24 consequences. Everybody knows the consequences. He works for

25 the State Police. He's given a direct order which he is told

 23

1 has come from the very top of the law enforcement chain, and

2 he's faced with a choice, and that is an adverse employment

3 action. And the actions here, if you take the complaint with

4 all inferences in our favor, certainly rise to the level of

5 conscience-shocking behavior, or at least could a reasonable

6 jury conclude that this shocked the conscience, and I suggest

7 to you it could. And that is the test right now.

8 Mr. Burke's argument is there for summary judgment.

9 That's his argument. He's suggesting to you that the evidence

10 once we do our discovery will show that what he says is true,

11 and if he's right, I'm with him, he wins. If he's right that

12 nothing happened here, fine, he wins. But that is something

13 that requires everyone to find out what actually did happen

14 here. He's resting so much of his argument on what happened in

15 court. Well, we want to know too what happened in court.

16 Your Honor, when there's a motion heard without the

17 presence of defense counsel on the last day that a case is in

18 Worcester County, and it's being transferred because the

19 Worcester County judge and District Attorney have a conflict of

20 interest, imagine, is that a problem? And what we are saying

21 is, it is.

22 What we have alleged -- you want specificity, I don't

23 know how much specificity I can give you, but we allege in the

24 complaint that we have evidence, and we expect to have more

25 evidence, that there was a conspiracy ranging from the top of

 24

1 law enforcement, at least the DA's office. All I know about

2 Secretary Bennett is that Major Anderson told the troopers that

3 it came from him. I don't know how she knows that. I also

4 know that he -- I'm being careful -- I also know that he's

5 denied it and the government denied it, so that's all I know

6 about him. But certainly as to everybody else, the fact that

7 this report, this altered report created on an emergency basis,

8 your Honor, he's left that out. Understand, your Honor, this

9 was on an emergency basis. Trooper Sceviour is on a day off,

10 and he's ordered to go to Holden, 92 miles, immediately to

11 create this new report. I suggest the reasonable inference

12 there is, there's nefarious activity going on: "You have to do

13 it now. You have to personally deliver it to the First

14 Assistant." It was the last day this case was in Worcester.

15 It was leaving. And everyone involved knew, his client,

16 everyone knew that a Middlesex County judge -- actually, it

17 turned out to be a Plymouth County District Court judge would

18 be deciding about this report, whether this report stays secret

19 or not. And I suggest to you they knew it wouldn't, and they

20 decided that the way to go is to threaten two troopers with

21 termination if they did not participate in the conspiracy they

22 were engaged in to tamper with official documents, which is a

23 felony. And that, I suggest to you, if that's what the facts

24 show, if our complaint proves out at summary judgment, that

25 evidence could shock the conscience. And I suggest to you it

 25

1 shocks all of our conscience if that's true, and it does not

2 deserve constitutional protection for the courts to say we're

3 throwing it out because it's not -- there's plenty of cases,

4 cases as egregious as this.

5 These are troopers. These are troopers who have sworn

6 to uphold the Constitution, have sworn to do the right thing,

7 who are being ordered to commit crimes by their superiors, by

8 people in the DA's office and possibly the Secretary of Public

9 Safety. That cannot be (Incomprehensible). And what we ask

10 you right now is, this is a motion to dismiss. Let's go

11 through discovery, and see if Mr. Burke is right that these

12 people, in fact they retired for no reason.

13 Thank you, your Honor.

14 THE COURT: Anything else?

15 MS. McCRAVY: Your Honor, I just briefly want to

16 address the fact that as Attorney Kesten was arguing, there is

17 barely any mention of Trooper Rei. The reason is because the

18 facts of the case as pled by Trooper Rei indicate that she

19 responded to assist Trooper Sceviour as a drug recognition

20 expert at this arrest scene. She was not there to draft an

21 official report, arrest report to be submitted to the court.

22 Her job and sole responsibility was to determine whether

23 Ms. Bibaud was under the influence of narcotics. As a drug

24 recognition expert, she is then required to put her findings

25 into a drug recognition expert report. Instead of doing that,

 26

1 what she did was, she took the findings and she put them into

2 the administrative journal. And I would suggest to the Court

3 that an administrative journal remains open for amendments and

4 edits for five days. I know that that is not part of the

5 pleadings, but it's indicated on the actual administrative

6 journal that it is open for edits for five days. So there was

7 no locked report in terms of Trooper Rei.

8 Unbeknownst to Defendant Anderson, Trooper Rei had

9 already drafted her DRE report at the time that she was

10 contacted by Defendant Anderson. Defendant Anderson simply

11 told her, "You're not supposed to put it in the administrative

12 journal. It's supposed to go into your DRE report." So taking

13 it out of the administrative journal was not a result of trying

14 to make it go away. If that were true, why then would

15 Defendant Anderson provide a copy of exactly what's in the

16 administrative journal, and then instruct Trooper Rei, as pled

17 in her complaint, to take that information and put it into the

18 DRE report? The only thing that was asked to remain out of the

19 DRE report, which, as far as Defendant Anderson, it had not yet

20 even been written, was statements made by Ms. Bibaud regarding

21 sexual favors to get her drugs.

22 During the arrest, Ms. Bibaud had already admitted

23 that she was high on drugs, admitted that she was a drug

24 addict. She provided a urine sample, which certainly was left

25 to show that she had drugs in her system because she admitted
 27

1 to having used them that very morning of the time of the

2 accident. So to suggest that Defendant Anderson tried to

3 somehow change the DRE report is incorrect, as based upon the

4 pleadings that are in the complaint, because Defendant Anderson

5 didn't even know that the report had been written. She was

6 simply telling her, "Take it out of the administrative journal.

7 It doesn't belong there."

8 And as far as this nefarious intent that they try to

9 conjure up by indicating that Major Anderson said she shredded

10 the document, well, if it wasn't supposed to be in the

11 administrative journal, the illegality of destroying that

12 document doesn't exist because it wasn't supposed to be in that

13 document in the first place.

14 Furthermore, as argued by Attorney Burke, the DRE

15 report had already been submitted and included the information

16 that she was told to keep out of the report. And despite her

17 fear of being disciplined, she turns it in anyway, and, lo and

18 behold, nothing happens to her. That is where the story ends

19 as it relates to Trooper Rei. There was no written warning.

20 There was no negative evaluation, no discipline of any sort.

21 There was no phone call on a day off making you drive 92 miles.

22 None of that happened. It was simply a phone call to

23 Trooper Rei saying, "Take it out. I've left the administrative

24 journal in your box. Put the information in your DRE report.

25 Just keep out the information, just keep out the statement
 28

1 regarding sexual favors to get the drugs, as it doesn't relate

2 to the charges that she's been charged with." It wasn't needed

3 to prove probable cause.

4 And if we're talking about information that is outside

5 of the four corners of the complaint, I believe that there was

6 a guilty plea, so there is no other involvement by

7 Trooper Sceviour, by Trooper Rei in regards to this case. It

8 is over. It only continues by virtue of the complaint that has

9 been brought. And I just wanted to make it clear to the Court

10 that there was no tampering of any report that was written by

11 Trooper Rei, as alleged in her complaint.

12 MR. BURKE: Your Honor, may I respond briefly to what

13 Mr. Kesten said? In response to the conspiracy that they have

14 two judges who are partaking apparently, according to his

15 allegation, if you look again at the timetable, your Honor, the

16 report is delivered to the Worcester County District Attorney's

17 office and the District Court the morning of the 17th. The

18 motion to impound it is filed and heard that same morning.

19 When does this conspiracy take place between the second judge,

20 the District Attorney, my client, and the other members of the

21 State Police? It's just factually impossible, but that's the

22 predicate that they're using to suggest that there's impropriety

23 here.

24 And I don't know where they have the authority or the

25 right to argue something about the sudden retirements. The

 29

1 members of the State Police serve at the -- certainly the

2 command staff serve at the discretion of the Governor. For

3 whatever reason he chose to take this action, that's his

4 decision; but that has nothing to do with anything involving

5 this case here as it relates to the complaint and what's

6 contained in their complaint.

7 THE COURT: Briefly.

8 MR. KESTEN: Very briefly.

9 THE COURT: Well, wait a minute. Different client.

10 MS. SCAMMON: Briefly, your Honor. I want to point

11 out that a good chunk of what Attorney Kesten brought forward,

12 the retirements, these purported investigations, is nowhere in

13 the complaint. It's just not in there. He's asking you to

14 draw an inference of nefarious conduct from the fact that

15 people retired and people are under investigation, and it's

16 nowhere in the complaint.

17 And I just want to bring back to the Court the central

18 issue here. These two plaintiffs suffered no adverse

19 employment consequences as a result of anything that happened.

20 There's not even an allegation that that was threatened by any

21 defendant or anybody alleged to have conspired with the

22 defendants. Both of these plaintiffs refused to do what was

23 originally asked of them and yet still suffered no consequences.

24 I submit that that is fatal to the civil rights claims in this

25 case.
 30

1 THE COURT: Mr. Kesten.

2 MR. KESTEN: Since Mr. Burke keeps wanting to argue

3 facts not in evidence, we have texts which set out exactly what

4 happened on the morning of the 17th, but I'm not going there.

5 I went there, but I'm not going there. So, your Honor, I just

6 want to raise one thing: Any reasonable police official, much

7 less a supervisor, knows that ordering people to commit crimes,

8 participate in crimes is illegal, and that's what you'd have to

9 find, that the law was not clear, that the colonel and the

10 major could not order their subordinates to commit felonies;

11 and the law is clear, so there's no qualified immunity argument

12 here.

13 And as to adverse employment action, ordering sworn

14 people to commit crimes under the threat of termination, giving

15 them a direct order, which Major Anderson, as we allege, knew

16 was wrong -- she knew that this was wrong, and she said she was

17 only doing it because they were favoring a judge's daughter --

18 it's in the complaint -- if that's true, that's an adverse

19 employment action. Thank you.

20 THE COURT: All right, I reserve the matters. Thank

21 you. We'll be in recess.

22 THE CLERK: All rise for the Court. Court will be in

23 recess.

24 (Adjourned, 2:57 p.m.)

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1 C E R T I F I C A T E

3
UNITED STATES DISTRICT COURT )
4 DISTRICT OF MASSACHUSETTS ) ss.
CITY OF BOSTON )
5

7 I, Lee A. Marzilli, Official Federal Court Reporter,

8 do hereby certify that the foregoing transcript, Pages 1

9 through 30 inclusive, was recorded by me stenographically at

10 the time and place aforesaid in Civil Action No. 17-12191-GAO

11 and 17-12232-GAO, Ryan N. Sceviour v. Colonel Richard D.

12 McKeon, and Ali Rei v. Colonel Richard D. McKeon, and

13 thereafter by me reduced to typewriting and is a true and

14 accurate record of the proceedings.

15 Dated this 11th day of April, 2018.

16

17

18

19

20 /s/ Lee A. Marzilli

__________________________________
21 LEE A. MARZILLI, CRR
OFFICIAL COURT REPORTER
22

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