A federal judge ordered Boston Police and the Suffolk County District Attorney’s to give police officers and prosecutors the memo: that it’s generally legal for people to secretly record cops, and other public officials and employees, in public spaces.
“Boston police and Suffolk County assistant district attorneys are on notice: People in Massachusetts have a fundamental right to record police officers,” the American Civil Liberties Union executive director Carol Rose said.
U.S. District Court Judge Patti Saris’s ruling in the case came last week, just six months after she ruled in December that a state law prohibiting people from secretly recording police officers in public violates the First Amendment.
The Court declares [the state law used to bar such recordings] unconstitutional insofar as it prohibits the secret audio recording of government officials, including law enforcement officers, performing their duties in public spaces. This prohibition is subject to reasonable time, place, and manner restrictions. The Court orders that this declaration be provided to every police officer and to all assistant district attorneys within 30 days.
Judge Saris gave the government 30 days to get up to speed and — instead of issuing an injunction against that section of the law — to make sure every district attorney and police officer in the state are aware of the ruling and what it means.
In 2016, the ACLU filed a lawsuit challenging the then Suffolk County District Attorney Dan Conley’s use of Chapter 272, Section 88, commonly known as Boston’s wiretapping law.
Judge Saris ruled on two similar cases on December 10: the ACLU case and a separate case involving Project Veritas, an undercover organization founded by conservative activist James O’Keefe.
Project Veritas is known for filming progressive politicians then publishing heavily edited videos to sway perception about the politician’s image or reputation, according to MassLive.
Project Veritas argued in its lawsuit that Section 99 prevented it from conducting secret video recordings, that are the basis of its reports, in Massachusetts.
Judge Saris wrote in her ruling that “secret audio recording of government officials, including law enforcement officials, performing their duties in pubic is protected by the First Amendment, subject only to reasonable time, place and manner restrictions.”
Local activists and residents say the rulings provides them with a sense of relief and clarity.
“Caught between safety concerns and fear of punishment, I often choose not to record at all. I am grateful that the court affirmed that our right to secretly record law enforcement is in fact protected,” Jamaica Plain resident Martin said.
“We all suffer when fear of retribution or prosecution stifles conversations about police accountability,” Pérez from Roxbury said.
“This ruling is a step towards greater police accountability and towards the safe, effective exercise of the right to record the police.”
Federal courts across the United States have affirmed citizens’ right to video record police in public.
But Massachusetts has been a different story.
Judge Saris’ ruling in Massachusetts affirmed the practice as Constitutional even under Massachusetts’ state-level anti-wiretapping law, which is one of the strictest state laws in the country pertaining to recording government officials.
Several people have been criminally charged under the illegal wiretapping laws even when recording their own interactions or arrests with law enforcement officials.
In 2007, Simon Gilk was arrested after using his cellphone to record Boston police officer punching a man.
Three years later, Gilk sued the three officers as well as the City of Boston for violating his civil rights and won a $170,000 settlement.
The court ruled, determining that people have a First Amendment right to film police performing their duties in public places.
However, Massachusetts police continued arresting people who recorded their interactions with officers, arguing the officers did not consent and that they were being recorded “secretly.”
In 2015, Shaun Hitchcock was convicted of a misdemeanor and sentenced to probation after secretly recording a police officer’s traffic stop.
In 2014, Karen Dziewit, who was arrested on charges of possessing an open container and disorderly conduct, was charged with wiretapping after she told police she had been recording them the whole time with her cellphone.
“I’ve been recording this the whole time. My phone is in my purse. See you in court,” Dziewit told officers before they charged her under Massachusetts wiretapping law.
Now, Suffolk County District Attorney Rachael Rollins and the Boston Police Department will have 30 days to tell their officers about the ruling.
Rollins said her office intends to comply with the order and is discussing how to proceed with the Attorney General’s office.
The Boston Police Department declined to comment.
