The Unnecessary, Unjust Incarceration of Officer Fitzsimmons

The right of North Andover Police Officer Kelsey Fitzsimmons to be free, on bail or otherwise, is the “paradigmatic fundamental right” of a citizen of the United States. The Fourteenth Amendment to the United States Constitution and arts. 1, 10, and 12 of the Massachusetts Declaration of Rights establish a fundamental right to liberty and freedom from physical restraint that cannot be curtailed without due process of law.

When a court limits an individual’s fundamental right to freedom, in furtherance of a compelling government interest, it must utilize the least restrictive means available to do so.

Ms. Fitzsimmons has had a lot to deal with during the past year. She stood before the Essex Superior Court in September indicted by a grand jury. In February she gave birth to a child. A short time later, she was diagnosed with postpartum depression. In June, she was shot in the chest by another police officer.

The gunshot that miraculously did not kill her, required that she be med-flighted to Mass General Hospital, where she spent about 60 days, undergoing numerous surgeries. 

At a recent pretrial hearing in the Essex Superior Court, the trial court motion judge was informed that Ms. Fitzsimmons could not blow into a SCRAM device, without experiencing excruciating pain. The court had ordered the SCRAM device to be utilized to monitor Ms. Fitzsimmons’s use of alcohol.  Ms. Fitzsimmons’s statement to the court that blowing into the device caused her excruciating pain was supported by her probation officer, and by the documented fact that her ribs had been broken by a bullet that penetrated her chest. 

Attorney Timothy Bradl presented the court with affidavits, reports, medical notices, and a surgeon’s letter.  The court appeared to ignore the important and comprehensive information respectfully placed before it. Not wishing to cause her pain, the judge revoked the young woman’s bail and threw her in jail.  Ms. Fitzsimmons had received no notice from the court that merely requesting modification of her conditions of release could subject her to incarceration. Notice and an opportunity to be heard are fundamental due process considerations.

The decision of the trial court motion judge, and later, of the Single Justice, who found no error, on the part of the judge, are inexplicable.   

The trial court judge was clearly required to state in her decision the specific reasons why jail was the least restrictive means available in this situation. The judge did not do so.

The SCRAM device, ordered by the trial court, is certainly not the only way to monitor Ms. Fitzsimmons’s possible use of alcohol. It is but one of a number of methods, that could be utilized for this purpose. A registered phlebotomist could be sent to Ms. Fitzsimmons’s home to test the young officer’s blood during appropriate time periods. A nurse could be sent to her home to conduct tests of the young officer’s urine for the same purpose. Transdermal alcohol sensors of all kinds could be utilized to transmit the results of Ms. Fitzsimmons’s alcohol tests to Auckland, New Zealand, for about three dollars a day. Any one of these methodologies would cost Massachusetts tax payers far less money than sending the twenty- eight year old, depressed new mother to jail.  

One notes that incarceration of any police officer presents heightened physical danger.  The risk of contracting disease is heightened in jail, especially for an individual recently released from the Mass. General Hospital Trauma Unit. Postpartum depression is a recognized psychiatric condition. Jail time is harmful to anyone’s mental health, but especially, to a young female suffering postpartum depression.

The now, old fashioned, words of Louis Brandeis in Curt Muller v. State of Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551, 13 Ann. Cas. 957 (1908) should be carefully considered.

“That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.”

It should be noted, Justice Brandeis, a moral man, meant the human race, not any particular race.

In 2014, Massachusetts Governor Deval Patrick signed anti-shackling legislation, abolishing the harmful and brutal practice of restraining incarcerated women who were pregnant, in labor, or in the postpartum period with handcuffs, leg irons, and waist chains.  The governor was quoted as stating that he was astounded to have to do so at that point in history. One notes the offensive fact that the trial court motion judge would not order a GPS monitor be taken off Ms. Fitzsimmons’s leg for a scheduled surgery.

The technical legal errors in the Single Justice’s decision, reading language into the lower court’s decision that clearly wasn’t there, and reliance on the wrong statute, are not nearly as important as the above simple and obvious considerations. It is hoped that Officer Fitzsimmon’s conscientious attorney, Mr. Bradl, succeeds in his appeal before the full bench of the historic Massachusetts Supreme Judicial Court. It is hoped that the SJC considers the moral guidance provided by Justice Brandeis and former Governor Patrick.