Facts: On March 26, 2014, Officer Garvey was assigned to the Dudley Station bus terminal in the Roxbury neighborhood of Boston. That afternoon, an MBTA bus inspector requested Officer Garvey’s assistance with a passenger who appeared to be intoxicated and was causing a disturbance. Officer Garvey found and escorted the passenger off the bus and directed her to a nearby bench and then called for assistance. Assisting officers arrived and assessed the situation and concluded that the passenger did not pose a threat to officer safety.
At this time Mary Holmes was walking towards Dudley Station when she observed Officer Garvey leaning over a bench and yelling at the removed passenger. Holmes was familiar with the passenger from her (Holmes) daily commute and attempted to calm the passenger. Holmes watched Officer Garvey shove the passenger to the bench when she stood. When the passenger attempted to take a drink from a vodka bottle, Officer Garvey aggressively slapped the bottle away from the passenger’s hand and lips, picked the passenger by her coat, and with the assisting officers placed the passenger in handcuffs.
Holmes dialed 911 and asked officer Garvey for her badger number: Officer Garvey responded: “It’s 6-7-7, now get the f**k out of my way before I arrest you for impeding on an ongoing investigation.” Holmes moved somewhat but not sufficiently for Officer Garvey, who began pushing Holmes and threatened to pepper spray Holmes if she did not move faster. While Holmes was walking backwards, Officer Garvey continued pushing her with one hand then pepper sprayed Holmes. A struggle followed. Officer Garvey used her baton to hit Holmes in the shins several times and ultimately forced Holmes to the ground. Holmes was taken to the MBTA police headquarters where she was charged with assault and battery on a police officer and held overnight until her court appearance the following morning. Officer Garvey prepared a police report “documenting” the events forming the basis for Holmes’ arrest and charges.
Unfortunately for Officer Garvey, the incident was captured by four MBTA public safety cameras located throughout the bus station and she ultimately lost her job over the incident and was convicted of two counts of assault and battery and two counts of filing a false police report.
Commentary: From a legal perspective, what is interesting about this case is that at trial, former Officer Garvey argued that her use of force was justified by the “police privilege,” which the court explained “permits police officers to use reasonable and necessary force when carrying out their official duties.” If an officer is prosecuted for using excessive force, “the Commonwealth . . . [is] required to prove beyond a reasonable doubt that the [officer’s] use of force was not justified by this privilege.” According to the “police privilege,” if an officer commits an assault and battery “when carrying out his or her official duties,” the government must prove “beyond a reasonable doubt” that the assault and battery was unjustified.
When a civilian commits an assault and battery, the government need only prove beyond a reasonable doubt that the civilian committed an assault and battery. When a police officer commits an assault and battery, the government must prove beyond a reasonable doubt both that the officer committed an assault and battery and that the assault and battery was not permitted--that is--exceeded a “reasonable” amount of force under the circumstances.
