UPDATE: In December 2020, the U.S. Court of Appeals for the First Circuit Court affirmed the district court’s 2019 judgment in Martin v. Rollins. The new decision confirms that the First Amendment protects the right to secretly record police officers performing their duties in public spaces, and it upholds the district court’s ruling that the Massachusetts “wiretap law” unconstitutionally criminalizes this protected right. In February 2021, on remand from the First Circuit decision, the district court entered a declaratory judgment and order stating “the Court declares Mass. G.L. c. 272, Sec 99, unconstitutional insofar as it prohibits the secret audio recording of police officers performing their duties in public spaces. This declaration does not address the constitutionality of any time, place or manner restrictions that the Massachusetts Legislature may enact in the future.
In June 2016, the American Civil Liberties Union of Massachusetts filed a federal lawsuit defending the right to record the police. The ACLU filed the suit on behalf of two civil rights activists against the Boston Police Department and the District Attorney for Suffolk County.
The suit asks the Court to affirm that it is unconstitutional to enforce the Massachusetts wiretap law against people who exercise their right to secretly record the police in the public performance of their duties. Accordingly, the suit also asks the Court to order Boston Police Department Commissioner William Evans and Suffolk County District Attorney Dan Conley to end such enforcement.
In March 2017, Chief Judge Saris of the U.S. District Court of Massachusetts denied DA Conley and Commissioner Evans’ motion to dismiss the case. In December 2018, Judge Saris ruled that secretly recording law enforcement officials performing their duties in public is protected by the U.S. Constitution.
In May 2019, Judge Saris denied the defendants’ motion to limit the scope of her order. The following month, Suffolk County District Attorney Rachel Rollins appealed the District Court’s decision and, in January 2020, we presented argument to the U.S. Court of Appeals for the First Circuit in defense of our victory. We contend that people have a right to record, in secret, police officers who are performing their duties in public spaces.
