A Suffolk Superior Court ruled yesterday Boston Police did nothing wrong when they ordered an upstate New Yorker in town for some hating on the left last August to surrender his body armor and helmet - and then arrested him when they found a loaded semi-automatic gun hidden in the armor.
The ruling by Judge Diane Freniere means Suffolk County prosecutors can use the loaded gun as evidence against Nathan Mizrahi, 40, of Norwich, NY when he comes to trial on charges of illegal possession of a firearm, illegal possession of ammunition and illegally carrying a loaded firearm in public. Mizrahi had a New York license for the weapon and ammunition, but New York licenses are not valid in Massachusetts.
At a hearing in June, BPD Capt. John Danilecki testified that when he spotted Mizrahi and a pal on the morning of Aug. 19 walking towards the Parkman Bandstand, where rightists were planning to rally, the two were being swarmed by counter-protesters, screaming "fuck Trump" at them. Both were dressed, Danilecki said, in "US Army fatigues, a steel-plated tactical vest/body armor and military helmet."
Concerned for their safety, Danilecki said he ordered some of their men to surround the pair, and push the counter-protesters back. Danilecki said he asked them if they were heading for the bandstand. Mizrahi, whom Danilecki recalled as "calm and well-behaved," said he was, at which point Danilecki said he could only go if he surrendered his body armor and helmet.
Mizrahi objected, Danilecki stood his ground. The New Yorker relented, after a fashion - he refused to take the armor and helmet off himself, but let Danilecki do it for him. Danilecki told him he could pick them up at the District A-1 station after the rally.
Danilecki handed the armor, which weighed 15 to 20 pounds, off to an officer, who brought it to A-1, where another officer conducted an "inventory" of the armor - routine so that police can guard against allegations they stole something. That officer then "found a loaded firearm in an inside front compartment of the vest under a velcro flap," according to the judge's recounting of the facts. When Mizrahi showed up after the rally to claim his property, police asked him for a license to carry a firearm; when he showed his New York license, he was arrested and charged with the firearms violations.
Freniere said the conditions that day warranted the police actions and that the way police came to realize there was a gun in Mizrahi's vest was reasonable and not a violation of his constitutional rights.
She said Mizrahi knew, or should have known, that police would not let him approach the bandstand carrying items that could be used as weapons because BPD had an intensive "publicity campaign" in the days leading up to the rally - just a week after a fascist used a car to kill a woman in Charlottesville, VA - warning people not to bring items that could be used as weapons, that there would be a heavy police presence and that any potentialy dangerous items could be seized. She continued that by the time Mizrahi arrived, there was also a heavy police presence on the Common - cops in yellow vests swarmed the area, the bandstand was surrounded by metal barriers and "walk-through metal detectors and hand-wand screeners were visible" at the two entryways police had set up for the bandstand.
Finally, Mizrahi got a very direct and person notice from Danilecki that if he wanted to go to the bandstand, he'd have to surrender his armor and helmet, the judge wrote:
Mizrahi made the choice to enter the secured space with the full knowledge that a consequence of that decision was that he would have to turn over his tactial vest and helmet to police and that it would be taken to a police station for safeguarding. Thereby, he consented to the search of those items.
Mizrahi's attorney argued that the seizure of his armor was still unreasonable because Mizrahi was not at one of the entryways to the bandstand, but still in an unsecured part of the Common. The judge rejected that argument:
Although the defendant was not in line to enter the secured rally space, he was on the Boston Common in an area where protesters and counter protesters were gathering and in the close vicinity of the entrance. Mizrahi's choice of clothing - full military camouflaged fatigues, military grade body armor vest and military helmet - gained the attention of the large crowd of rowdy counter protesters, creating an unsafe situation for both Mizrahi and his companions and the Boston Police. It was necessary and appropriate for the police to take steps to determine his intentions and to secure his safe passage to the secured rally area once Mizrahi made his destination known. Said another way, once Mizrahi made it clear to the police that he intended to go into the secured rally area, given that his dress had incited the counter protesters, for safety reasons, he moved to the head of the security checkpoint line.
Freniere also wrote she was crediting the testimony of Danilecki and two officers over the testimony of two of Mizrahi's acquaintances, partly because of the officers' experience and partly because the two acquaintances testified "there were not many counter-protesters in their vicinity immediately before the police approached Mizrahi and another man in their party" (photo of some counter-protesters).
A trial date has not yet been set, according to the Suffolk County District Attorney's office, which says his next scheduled court date is Sept. 5.