Privacy SOS

Federal court allows lawsuit on recording police to proceed

In a major win for free speech and police accountability, a Massachusetts federal court has ruled in favor of two ACLU clients who seek to exercise their constitutional right to record the police in secret.

The lawsuit, Martin v. Evans, was brought on behalf of civil rights activists Eric Martin and René Pérez against Suffolk County DA Dan Conley and BPD Commissioner William Evans. Our clients assert that the Massachusetts wiretap statute violates their First Amendment right to record police officers in the public performance of their duties because it prohibits their ability to do so secretly. Filed in June 2016, the suit asks a Boston federal court to issue declaratory and injunctive relief barring the defendants from arresting or prosecuting individuals under the state’s wiretap statute for recording police officers in secret.

Both Commissioner Evans and District Attorney Conley filed motions to dismiss our lawsuit, alleging, among other things, that Martin and Pérez lacked standing, and that their First Amendment claims fell short. On March 13, 2017, federal Judge Patti Saris denied these motions and allowed our lawsuit to proceed to the merits.

Judge Saris’ ruling is important for two key reasons. First, it means our clients will be able to argue and obtain a decision on a hugely important question: Does the Massachusetts wiretap statute (known as “Section 99”) unconstitutionally prohibit their ability to secretly exercise their First Amendment right to record police officers in the public performance of their duties? Second, Judge Saris’ ruling confirms that local government actors can be held liable for enforcing unconstitutional state laws when they have affirmatively and consciously taken steps to do so.

The First Amendment issues are pretty simple. In 2011, the First Circuit ruled in a separate ACLU case (Glik v. Cunniffe) that we have a First Amendment right to record police officers in the public performance of their duties. The court’s ruling was based on long-standing precedent holding that the production and collection, not just the dissemination, of information is protected by the First Amendment. As long as the videographer doesn’t interfere with police activity, they are free to record, the First Circuit ruled. Importantly, the Glik decision did not limit that constitutional right to openly recording the police.

Nevertheless, Commissioner Evans argued that the “First Amendment does not provide any right to secretly record police officers.” Judge Saris disagreed, explaining “existing First Circuit authority holds otherwise.” Noting the particular importance of information gathering regarding government officials, she concluded that “plaintiffs have adequately stated a claim that [the wiretap statute], as applied to the secret recording of government officials in the performance of their duties in public, violates the First Amendment.”

The second issue is a little more complicated. Basically, Commissioner Evans claimed that he was not a proper defendant because our clients’ underlying problem is with the state law, not the police department’s conduct. The Judge didn’t buy that argument—because it’s not true.

Under a legal doctrine known as Monell, municipalities—including local police departments— can be sued over their official policies. In his quest to try to duck our lawsuit, Commissioner Evans claimed that (1) the BPD was simply enforcing the state wiretap statute and (2) a municipality’s mere enforcement of state law does not constitute a policy that can trigger Monell liability. But as we argued, and as Judge Saris confirmed, the BPD was doing more than blindly applying a state law.

That’s because the state wiretap statute authorizes, but does not require, police officers to arrest individuals. Additionally, as Judge Saris explained, our complaint’s “factual allegations suggest that the BPD has affirmatively and consciously chosen to educate officers about [the wiretap statute] and its particular application to the recording of officers’ activities.”

Specifically, our clients allege that the BPD’s official training materials instruct officers that they may arrest and seek charges against private individuals who record police officers in secret. The Second Circuit previously held in Vives v City of New York that a municipality can be held liable when it “decide[s] to enforce a statute that it is authorized, but not required to enforce” and takes some step to “focus[] on the particular statute in question.” Applying that framework here, Judge Saris concluded that “the complaint sufficiently alleges a conscious decision by the BPD to enforce Section 99 [the wiretap statute]” to constitute a policy for which it can be held liable.

Thanks to this important decision, the lawsuit will now proceed to the merits of the case, so we can get an answer to this question, once and for all: Does the Massachusetts wiretap statute unconstitutionally prohibit an individual’s right to secretly exercise their First Amendment right to record the police in the public performance of their duties? We’re eager to find out, and we’re confident the answer will be a resounding ‘yes.’

After all, what does a right mean if you cannot exercise it?

© 2017 ACLU of Massachusetts.