A Boston Police officer who was already on probation for a domestic-violence incident and who was arrested yesterday on new domestic-violence charges had the more serious of the two charges dismissed before his arraignment after his attorney convinced a Dorchester Municipal Court judge that pavement is not considered a dangerous weapon in Massachusetts.
The Suffolk County District Attorney's office today filed a motion asking the judge, whom it did not name, to reconsider, because, in fact, Massachusetts does consider pavement a dangerous weapon if somebody is slamming somebody else's head into it.
Alexis Herrera-Brea, on the force since 2017, was arrested yesterday on charges of assault and battery with a dangerous weapon, a felony, and domestic assault and battery, a misdemeanor, for an incident sometime this year involving what police called "a non-intimate family member."
In its request to restore the felony charge, prosecutors wrote:
[T]here are sufficient facts to establish probable cause to believe that the defendant intended to inflict serious harm by slamming the alleged victim into the ground of a driveway with such force that he (the alleged victim) thought he might have a concussion.
Before his arraignment yesterday, Herrera-Brea's attorney, Benjamin Megrian, asked the judge to dismiss the more serious charge because of a 1996 court decision, also centered on a man pounding somebody's head into pavement, that pavement is not legally a dangerous weapon, essentially because pavement is just part of the surroundings, not a weapon that an attacker directly controls.
The DA's office says the judge refused to give a prosecutor more than a few minutes to research the case and then dismissed the charge at a hearing yesterday afternoon.
The problem is that while the Massachusetts Appeals Court did rule that pavement is not legally a dangerous weapon, the Supreme Judicial Court, which is the state's highest court, overturned that decision several months later and ruled that pavement can, in certain circumstances, including pounding somebody's head into it, be considered a dangerous weapon.
Megerian's hand-written request to dismiss the charge cited the Supreme Judicial Court ruling but used the logic of the appeals-court decision.
In a statement, DA Rachael Rollins said:
We have every intention of pursuing criminal charges in connection with this domestic violence allegation. In this case, the legal standard suggested by defense counsel had been overturned and we didn’t catch his error. Additionally, insufficient time was allowed by the Court to review the Motion to Dismiss and the legal precedent cited
In her statement, Rollins said that "Officer Herrara-Brea was on probation for an act of violence."
She did not provide details on either that case or why a police officer was allowed to remain on the force while on probation for such a charge. A list of Suffolk County law-enforcement officers facing misconduct allegations that is maintained by Rollins's office includes a listing for Herrera-Brea for assault and battery with a dangerous weapon on a family member on April 19, 2020.
Police said yesterday that Herrera-Brea was put on administrative leave yesterday.