(CN) - A federal judge refused to issue a restraining order for a man who says Boston police routinely persecute citizens who photograph cops in public, allegedly in violation of wiretap law, but the lawsuit can proceed in its entirety.
Max Strahan claimed to have been taking pictures of a crane truck and construction crew near Boston Commons in August 2008 when out-of-uniform Boston Police Department officer Kenisha Stewart ordered him to stop.
Strahan said he may have inadvertently snapped a picture of Stewart, and she ordered him to delete images of her from his digital camera because it is a violation of the wiretap law to photograph police officers without their consent.
But Strahan said he would not comply until Stewart could prove she was actually a police officer by showing a badge or gun. Since Stewart allegedly ignored Strahan's questions, he said threatened to file a complaint with Internal Affairs, took more pictures of her to prove she was not in uniform and fled to a nearby pizzeria.
"Stewart screamed at him that she was going to get those pictures," according to the court's summary of his complaint.
Stewart caught up with the photographer while he was eating two slices of pizza, so he fled again and was eventually apprehended after another BPD employee allegedly "rammed him with his bicycle."
As more police arrived on the scene, Strahan said the group threatened him with beatings and arrest unless he destroyed the photographs of Stewart.
"One defendant with whom Strahan had had a previous encounter (identified as 'John Doe Motorcycle'), stated to Strahan that if he did not destroy the pictures immediately, he was going to 'beat your ass,' while grabbing his gun,'" U.S. District Judge Douglas Woodlock said, quoting Strahan's complaint.
Fearing for the safety of his camera and his property, Strahan said deleted the offending pictures.
Strahan filed suit and sought a restraining order, claiming that the emotional toll of the incident caused him to vomit and that he now avoids Boston Common because he still feels threatened and intimidated by BPD officers.
Judge Woodlock agreed to let Strahan proceed in forma pauperis
and to consolidate his case with Glik v. Cunniffe
, which also alleges threats of arrest for photographing BPD employees in public.
But Strahan will not get a restraining order compelling an emergency hearing with all the parties to prevent similar incidents in the future.
Calling Strahan's motion an attempt to "side-step" the rules of service of process, Woodlock said he did "not find that requiring the defendants to forego their rights to proper service of process under Rule 4 is justified under these circumstances."
The court noted that the police have done nothing to Strahan in the three years since the alleged incident.
"I find that his assertion that he is under imminent threat of harm by the BPD to be speculative," Woodlock wrote on July 15.
Because Strahan lacks sufficient funds, U.S. Marshals will complete service only on the named defendants in 120 days, as instructed by Strahan, and to advance the costs of service.
Strahan can effect service on the other defendants, such as John Doe Motorcycle, once he has identified them.