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COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPERIOR COURT

CIVIL ACTION NO.

____________________________________

)

MICHAEL PICARD and HEIDI OLSON, )

Plaintiff, )

)

v. )

Massachusetts State Police Trooper and )

in his individual capacity, )

Defendants. )

____________________________________)

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

AND RELIEF IN THE NATURE OF CERTIORARI

INTRODUCTION

1. This is a civil rights action challenging the constitutionality of Department of Conservation

and Recreation (“DCR”) regulations that unlawfully restrict rights to free speech and

expression on public lands and that were applied to Plaintiffs on November 11, 2021.

rights, and advocating for a Pride Flag to be hung along with other flags being erected by the

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demonstrators on the seawall. At times, Plaintiffs used bullhorns to ensure their voices could

be heard.

4. In response to this peaceful and satirical counter-protest, Massachusetts State Police (“MSP”)

Trooper Surian ordered Plaintiffs to stop using bullhorns and to leave DCR property and then

issued citations against them. DCR then failed to provide Plaintiffs the due process required

legality of Defendant Surian’s actions against them on November 11, 2021, DCR’s failure to

afford Plaintiffs the administrative hearing process required by law, and MSP’s failure to

respond timely to a related public records request.

6. Plaintiff Michael Picard resides in South Windsor in Hartford County, Connecticut.

7. Plaintiff Heidi Olson resides in Gloucester, in Essex County, Massachusetts.

8. Defendant the Department of Conservation and Recreation (“DCR”) is an agency of the

Commonwealth of Massachusetts with headquarters in Suffolk County, Massachusetts. It is

responsible for management of the Lynn Shore Reservation and the property on which the

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10. Defendant Devon Surian is an officer/Trooper employed by MSP, assigned to the MSP

Revere, Massachusetts barracks, and who resides in Suffolk County, Massachusetts.

11. This Court is an appropriate venue for this action challenging the regulations and actions of a

division of the state, pursuant to G.L. c. 223, § 1 and G.L. c. 66, § 10A(c) and because

DCR’s headquarters and the MSP barracks to which Trooper Surian is assigned are in

12. On November 11, 2021, a group of people staged a demonstration near a sidewalk along

Lynn Shore Drive in Lynn, Massachusetts, on public property that is managed by DCR.

13. These demonstrators included individuals who regularly demonstrate in the area, including in

support of former President Trump and in opposition to President Biden (including by calling

out to passersby “fuck Joe Biden”). On November 11, 2021, they affixed flags to the sea wall

that runs alongside the water and next to the sidewalk that is part of the Reservation. The

flags contained messages supporting former President Trump, U.S. troops, and gun rights.

14. Plaintiffs knew that one or more of these demonstrators had previously participated in

demonstrations in which they expressed views that Plaintiffs considered homophobic and

offensive, including with regard to an LBGTQ+ flag flown at Swampscott Town Hall. For

instance, a few days before November 11, the organizer of the November 11 demonstrators

called out to someone displaying the LGBTQ+ Pride Flag that they were “trying to make

everybody gay” and to “make the kids gay.” She called out to someone “take down the gay

flag, faggot.” Based on her own social media postings, a few days before that, she told a

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spray and yelled “do you want it?” and told him to “tell them to take down the gay pride flag,

faggot.” In addition, this same person posted footage of herself apparently on a different day,

in which, after taunting young boys at a school in Swampscott who did not want to talk to

her; she said that the schools were trying to turn boys into “girls, fags, gay.”

15. On November 11, 2021, Plaintiffs arrived together at the location of the demonstration to

asked her if she would support a petition to put LGBTQ flags every 20 feet in Swampscott

and Lynn. In response, she threatened to pepper spray him as shown on her own recording of

the event. At times, he asked people if they wanted to sign a petition in support of gay rights.

17. Plaintiff Heidi Olson asked the demonstrators to put up a pro-LGBTQ+ “Pride” flag and

called for passers-by to encourage them to do so.

18. Plaintiffs each maintained distance between themselves and the other demonstrators and

periodically used bullhorns that were not discernably louder than the voices of the

demonstrators. They did not impede anyone’s passage on the public sidewalks or grass. They

were calm and pleasant in the face of anger coming from some of those they were counter-

protesting.

19. Soon after Plaintiffs arrived, at least one of the demonstrators used a bullhorn, including to

amplify the sound of a siren directed at Plaintiffs

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21. Defendant Surian first told Plaintiffs they could not use bullhorns without a permit, which

they promptly agreed to stop using.

22. Defendant Surian then told Plaintiffs they had to leave the area entirely because they did not

have a permit. At one point, he also told the original demonstrators that they could not protest

on DCR property without a permit but then allowed them to remain for over an hour.

Plaintiffs were engaging in conduct that was “inciting”—presumably referring to the fact

they were engaging in a counter-protest that the demonstrators did not appreciate.

25. After Plaintiff Picard left the area and returned, Defendant Surian told him that if he did not

leave the area, he would issue another citation against him.

26. A few days after November 11, Plaintiffs received citations in the mail for allegedly violating

the Regulation for “amplified sound device use of w/o a permit.” (sic). See Exhibit A (Picard

citation) and Exhibit B (Olson citation) (home addresses redacted).

27. Two DCR regulations (302 CMR 12.04(28)(e) (the Audio Device Regulation), and 302 CMR

12.04(28)(f) ( the Public Address System Regulation)), require advance special permits on

public lands for use of certain “audio devices” or “public address systems” with no objective

standards to guide enforcement discretion and which do not clearly apply to mere bullhorns.

28. These regulations were not cited in the citations Plaintiffs received. The only regulation cited

in each citation was the Disorderly Conduct Regulation (302 CMR 12.04(4)).

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29. 302 CMR 12.04(4) prohibits “disorderly conduct” on DCR-operated public properties, which

is defined to include “unnecessary noise offensive to the general public” (with no objective

standards to guide enforcement), as well as “use of profanity, vulgar or obscene language, or

other language that may incite fighting or harm to DCR personnel or to the public.”

30. Each citation was on a DCR citation form and indicated each Plaintiff was being fined $200

address below WITHIN 21 DAYS OF THE DATE OF THIS NOTICE.”

32. Upon information and belief, neither the demonstrator who threatened to pepper spray

Plaintiff Picard nor the demonstrator who used a bullhorn were cited for their conduct.

33. Plaintiff Olson requested a hearing from DCR by promptly sending a request to DCR in the

pre-addressed envelope that came with the citation. On November 23, 2021, Ms. Olson

received a letter from DCR informing her that her only avenue for challenging the citation

(and purportedly avoiding criminal prosecution) was to seek relief from the Lynn District

Court. Exhibit C.

34. Contrary to the DCR letter, pursuant to 302 CMR 12.21 “A party who is aggrieved by a DCR

decision may appeal such decision in writing within 30 days. Appeals to DCR decisions will

be conducted in accordance with M.G.L. c.30A and the regulatory provisions found at 801

CMR 1.00: Standard Adjudicatory Rules of Practice and Procedure.”

35. In reliance on DCR’s communication, both Plaintiffs sent materials to the Lynn District

Court saying they wanted to appeal their citations. In response, hearings were scheduled by

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the court pursuant to G.L. c. 40, § 21D, even though on its face that statute applies only to

actions taken pursuant to municipal laws, not regulations of state agencies.

36. On December 11, 2021, Plaintiff Picard submitted a public records request to the Public

Records Officer at MSP, seeking all records and recordings related to the November 11,

2021, incident. A copy of that request is attached as Exhibit D. He never received any

their ability to prepare for the appeals of their citations.

38. On March 14, 2022, purportedly pursuant to G.L. c. 40, § 21D, a proceeding was held by a

clerk magistrate in the Lynn District Court as to the citations against both Plaintiffs. Both

Plaintiffs submitted arguments for why the citations could not lawfully be sustained, but the

clerk magistrate nonetheless purported to uphold them. Exhibit E (Olson) and Exhibit F

(Picard) (Plaintiffs’ home addresses redacted). Upon information and belief, no application

for issuance of a complaint against either plaintiff pursuant to the seventh paragraph of G.L.

c. 40, § 21D has been made by DCR or MSP, but the threat of further enforcement action

remains.

39. On March 30, 2022, counsel for Plaintiff Picard alerted counsel for MSP to the issue of

MSP’s failure to respond to Mr. Picard’s public records request. To date, MSP has still not

produced any of the documents responsive to the December 11, 2021 public records request.

40. Both Plaintiff Olson and Plaintiff Picard intend to protest and/or counter-protest in the future

on DCR-operated property. They fear their free speech and due process rights will again be

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curtailed as a result of the challenged regulations and processes applied to them in connection

with their November 11, 2021 counter-protest.

COUNT 1 – Free Speech and Expression

Article 16 of the Declaration of Rights and First Amendment to the U.S. Constitution

41. The foregoing allegations are incorporated herein.

42. The Disorderly Conduct Regulation is unconstitutional on its face because it is content-

based, not narrowly tailored to achieve a significant or compelling governmental interest, is

overly broad, and does not contain standards to guide discretion or give adequate notice of

what is proscribed.

43. The Audio Device and Public Address System Regulations are unconstitutional prior

restraints on speech that cannot be justified, and are facially unconstitutional because they are

are overly broad, are not narrowly tailored to achieve a significant governmental interest, and

45. The Disorderly Conduct Regulation, the Audio Device Regulation, and the Public Address

System Regulation, facially and as applied to Plaintiffs, violate Article 16 of the Declaration

of Rights, as amended, and the First Amendment to the U.S. Constitution.

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COUNT 2 – Due Process

Article 10 of the Declaration of Rights and Fourteenth Amendment to U.S. Constitution

46. The foregoing allegations are incorporated herein.

47. The Disorderly Conduct Regulation, the Audio Device Regulation, and the Public Address

System Regulation are unconstitutionally vague on their face because they fail to give

sufficiently clear notice to those potentially subject to them as to what is prohibited, and fail

was unlawful and therefore are unconstitutionally vague as applied to Plaintiffs.

49. The actions of Trooper Surian and the citations, which rely on the challenged regulations, are

unconstitutional violations of Article 10 and the Fourteenth Amendment.

50. In addition to the foregoing, DCR has denied Plaintiffs the process they are due by failing to

afford them an adjudicatory hearing as required by 302 CMR 12.21 and instead directing

them to challenge the citations in district court pursuant to an inapplicable statute.

Certiorari – G.L. c. 249, § 4

51. The foregoing allegations are incorporated herein.