Freedom of Expression & Association July 19, 2018 ACLU to Court: Recording the police is protected by the Constitution The ACLU of Massachusetts today defended the right to record police officers performing their duties in public at a hearing before the U.S. District Court of Massachusetts. In two briefs filed last week, the ACLU of Massachusetts asks the federal district court of Massachusetts to affirm that it is unconstitutional to enforce Massachusetts’ wiretap law against people who secretly record the police in the public performance of their duties. “We’ve seen that videos of police officers can show the realities of policing in powerful ways,” said Carol Rose, executive director of the ACLU of Massachusetts. “People’s recordings of police interactions have started national conversations about police reform and accountability, and it’s critically important that we ensure that people can record the police without fear of arrest or retaliation.” The ACLU of Massachusetts filed a lawsuit in June 2016 against the Boston Police Commissioner and Suffolk County District Attorney, defending the right to record police on behalf of two Boston civil rights activists. According to the complaint, the plaintiffs will not secretly record police due to a credible fear of arrest and prosecution under the wiretap statute. While they have often exercised their right to record the police openly, they believe recording secretly would both protect their safety and more accurately document police behavior. Last night’s filing argues that the First Amendment protects their right to do so. “I’ve had guns pointed at me by police and have been slammed on the hood of a police car because I fit a description of a ‘dark male in a light shirt.’ As an activist, I’ve been attacked, injured, and pepper sprayed by police while openly recording police officers doing their jobs. I fear for my safety if I openly record police officers in public, and I fear arrest and prosecution if I record secretly,” says Eric Martin, a plaintiff and Jamaica Plain resident. “Caught between safety concerns and fear of punishment, I often choose not to record at all. There’s a lot at stake when people feel this chilling effect.” “There are times when I would want to record the police doing their jobs in public but would only feel safe doing so secretly. Because I am afraid of getting arrested or being prosecuted for violating the wiretap law, I simply don’t record in those situations,” said René Pérez, a plaintiff and Roxbury resident. “We all suffer when fear of retribution or prosecution stifles conversations about police accountability.” The 1968 Massachusetts wiretap law criminalizes secret audio recordings, and has been used to arrest and prosecute people for secretly recording police officers performing their duties in public. Both the Boston Police Department and the Suffolk County District Attorney’s Office have pursued criminal action under the state law against individuals for secretly recording police officers performing their duties in public. According to the recent filing, neither institution has disavowed such enforcement going forward. This leaves those who are afraid to openly record police officers with no opportunity to exercise their constitutionally protected right. The filing argues that as applied to the secret recording of police officers performing their duties in public, the state wiretap statute violates the First Amendment. “The First Amendment protects the right to gather information about police officers,” said Jessie Rossman, staff attorney at the ACLU of Massachusetts. “In order for this right to have real meaning, we must ensure that people can exercise it safely and effectively, without fear of arrest or retaliation.” In the fall of 2016, Commissioner William Evans and District Attorney Daniel Conley filed a motion to dismiss the lawsuit. A federal judge denied the motion to dismiss, and ruled that the case could move forward. After discovery, all three parties have now filed motions for summary judgment. In the fall of 2016, Commissioner William Evans and District Attorney Daniel Conley filed a motion to dismiss the lawsuit. A federal judge denied the motion to dismiss, and ruled that the case could move forward. After discovery, all three parties have now filed motions for summary judgment. Learn more about the case, Martin v. Evans.