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Selectboard-commissioned independent report on ‘Gender Queer’ police investigation finds department acted ‘lawful and proper’

In its conclusion, the investigation firm noted that, on January 10, the Police Department revised its policies and procedures regarding preliminary investigations. The firm stated that the revised policy would be sufficient enough to prevent the December 8 incident from happening again, with one revision.

Great Barrington — Three months after the Selectboard commissioned an independent review over the Police Department’s handling of an investigation at W.E.B. Du Bois Middle School, the results of the review were released on Monday, April 29.

Back on December 8, 2023, in an incident that captured national headlines, the Police Department sent an officer to investigate eighth grade ELA teacher Arantzazu Zuzene Galdos-Shapiro over a copy of the book “Gender Queer” that she allegedly had in her classroom, along with other allegations that were made against her.

During the Selectboard meeting on April 29, the board met in executive session for 25 minutes to discuss the report.

Also on April 29, the Berkshire Hills Regional School District Committee held an executive session to discuss, as listed on the meeting’s agenda, potential litigation against the school district by Galdos-Shapiro. Only an executive session was listed on the school committee’s agenda, with no public session.

Steve Bannon is both the chair for the Selectboard and the Berkshire Hills Regional School District. Bannon was present at the Selectboard meeting but not at the school committee meeting, which was held virtually.

Previously, the school district also approved an independent investigation into the incident. The school district issued its report on the independent investigation, which was conducted by Kevin Kinne from Pittsfield law firm Cohen Kinne Valicenti & Cook LLP, in early February. The report revealed that the allegations made against Galdos-Shapiro were false. It also revealed that the complainant, Great Barrington resident Adam Yorke, who worked as a night custodian in the school district, made the allegations against Galdos-Shapiro. Yorke recanted his claims during his interview for the independent investigation. A copy of the full report issued by the school district is available here.

Details from the town’s independent investigation

The independent investigation approved by the Selectboard was carried out by Comprehensive Investigations and Consulting LLC out of Quincy. Company partners Daniel Bennett, Kerry Gilpin, and John Benzan are listed as the drafters of the report. As per the company’s website, Bennett is a former secretary of public safety and a former first assistant district attorney; Gilpin is a former colonel of the State Police; and Benzan is a former trial attorney.

While 15 current and former school employees were interviewed for the school district’s independent investigation, for the town’s independent investigation, only four people were interviewed: Police Chief Paul Storti, Officer Joseph O’Brien, Berkshire County District Attorney Timothy Shugrue, and Berkshire Hills Regional School District Superintendent Peter Dillon.

O’Brien was the officer sent by the Police Department to investigate the school and Galdos-Shapiro, and he subsequently searched the school’s library for a copy of “Gender Queer.”

The interviews for the town-commissioned report were all conducted in March and go over details previously reported, including that, according to Chief Storti, the investigation was instigated due to various allegations made by Yorke.

The report states that Officer O’Brien was the one who received the complaints from Yorke, and that, at the beginning of the investigation, O’Brien showed Chief Storti photographs of the book provided by Yorke. O’Brien states:

Two of the photographs were of the front cover of the book. The third photograph was two interior pages of the book. Chief Storti stated that the illustrations [from the book] were concerning because there was no context provided. Chief Storti stated that upon reviewing the information, as well as the photographs, it was his opinion that the Police Department had a duty to immediately follow up on the complaint.

Chief Storti was asked whether “he believed that the material was inappropriate and of a pornographic nature as contemplated by Massachusetts General Law c 272 29 (Dissemination of Obscene Matter).” The report states:

He replied ‘Yes.’ He added that this was based on, in part, because there were only three photographs, and no other context was provided. Chief Storti also explained that he was unable to determine the age of the individuals depicted in the illustrations and was unsure whether students had access to the book.

When asked by investigators, Chief Storti said that he did not believe that the Police Department needed a warrant to search the school for the book.

A few weeks after the investigation, Chief Storti apologized for the Police Department’s role in the investigation.

In an interview with investigators, Officer O’Brien described the photographs that were submitted by Yorke that were used to launch the investigation:

The captions with the images discusses a strap-on dildo and then shows one individual with their pants undone wearing what appears to be a strap-on dildo and the other individual kneeling down in front and performing oral sex by placing the dildo into their mouth. Without additional information at that time, the drawn characters appeared to be young individuals that may be meant to portray children under the age of 18, which may be a violation of M.G.L. c 272 29 Dissemination of Obscene Manner.

The Berkshire Edge has reviewed a copy of “Gender Queer” and can confirm that these sexually explicit images are in the book.

In his interview with investigators, District Attorney Shugrue said that, while “the initial information he received was that potential graphic pornographic material was being shown to students at the school,” he said that “he did not observe the photographs of the illustrations contained in the book until four or five days later.” Shugrue added that “it was very warranted and appropriate for there to be a further inquiry because an allegation was made,” and that, in his professional opinion, “the illustrations [in the book] could have been considered a violation of M.G.L. c 272 29 Dissemination of Obscene Manner.”

In his interview with investigators, Superintendent Dillon said that there was no discussion with the Police Department on how they would proceed if the copy of “Gender Queer” was found in Galdos-Shapiro’s classroom. The report states:

[Dillon] also acknowledged that there was no discussion, at that point, regarding obtaining a search warrant. [Dillon] explained, ‘In hindsight, there probably should have been a warrant all along, but when it was perceived as a broader investigation, I had one attitude towards it. And if it had been a much narrower investigation, I might’ve had a different attitude towards it.

Further on in the report, Dillon was asked about school Principal Miles Wheat’s role in the police investigation. The report reads:

Dillon was asked if Wheat, based upon his position as principal of the school, had the authority to revoke consent for Officer O’Brien to look for the book. He replied, yes and no. He explained that they both had the formal authority to say no; however, he believes that law enforcement, by their very role, can make it hard for people to say no to them. Dillon added that Chief Storti works every day in law enforcement and may have known better that in this kind of context, getting a warrant may have been more appropriate, if not necessary.

Dillon explained that he made his decision based on incomplete and inaccurate information. He added that at the time, he made the best decision he could make, based on the information that he had.

Subsequently, on April 24, it was announced that Wheat would be leaving for a new school district in New York by the end of the school year.

The report states that Comprehensive Investigations and Consulting spoke to Galdos-Shapiro’s attorney, Howard Cooper of Todd & Weld LLP of Boston, asking to interview Galdos-Shapiro for its investigation. Galdos-Shapiro did not respond to the investigation firm’s request for an interview.

After taking a leave of absence following the Police Department’s investigation, Galdos-Shapiro returned to the school district in late February.

Investigation conclusions

Under its “findings” section, the report states:

Comprehensive Investigations and Consulting, LLC, finds that the actions of Officer Joseph O’Brien, as well as the actions of the Great Barrington Police Department, regarding the incident at the W.E.B. Du Bois Middle School, on December 8, 2023, were lawful and proper.

Right next to the statement, the word “exonerated” is typed up in all capital and bold letters.

As part of its findings, the firm cited Plock v. Board of Education, a U.S. District Court for the Northern District of Illinois case from 2007.

…the federal district court held that teachers do not have an expectation of privacy in their classrooms. The classroom is not reserved for the teacher’s private use, but is open to the students, other faculty, administrators, custodians and parents. Furthermore, Officer O’Brien’s search was limited in scope and did not include a search of the teacher’s desk.

In its conclusion, the investigation firm noted that, on January 10, the Police Department revised its policies and procedures regarding preliminary investigations. The department’s original policy on preliminary investigations was created in September 2007. The previous policy did not contain any language referring to investigations at the schools in the school district or pertaining to educational materials. According to the investigation firm, the following was added to the department’s policy on preliminary investigations:

Preliminary investigations are conducted on all incidents that violate the criminal code of the Commonwealth or town bylaws, or have the potential to result in a criminal or civil action. We need to verify the information provided by the complainant to determine if it is credible or not. The immediate police response and preliminary investigation is essential to discover facts, verify information, speak to witnesses and preserve physical evidence.

Reports of incidents involving the possession or use of educational materials within an educational institution/school in the Town Of Great Barrington shall be addressed as follows: For purposes of this rule ‘educational materials’ shall mean books, other written materials of any kind, images, and video and/or audio recordings, that relate or may relate to curriculum, learning, and/or instruction approved by the educational institution.

Upon receipt of a report of an incident allegedly involving such educational materials, the Chief of Police, or their designee, shall be notified immediately. The Chief of Police, or their designee, shall immediately notify the Superintendent/chief administrative officer of the school district/institution and the Town Manager. The Chief of Police/designee shall determine whether any applicable policies of the school district/institution regarding such educational materials and access by administrators to such materials have been or are being complied with. No search for educational material shall be conducted within the applicable school building by members of the Police Department unless such search complies with the requirements of the Fourth Amendment to the United States Constitution, including but not limited to any requirement that the search be conducted pursuant to a warrant issued by a court of competent jurisdiction.

The investigation firm stated that the revised policy would be sufficient enough to prevent the December 8 incident from happening again. However, the firm proposed one revision:

The Chief of Police/designee, in conjunction with the Superintendent/chief administrative officer of the school district/institution, and the Town Manager, shall determine whether any applicable policies of the school district/institution, regarding such educational materials and access by administrators to such materials, have been or are being complied with.

Meanwhile, various media reports have stated that Galdos-Shapiro is threatening to sue both the town and the school district if they do not participate in legal mediation.

The Berkshire Edge has contacted Galdos-Shapiro’s attorney Cooper seeking comment, but has not heard back from Cooper as of press time.

Click here to see the full report commissioned by the town.

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