PAX Centurion - Spring 2019

www.bppa.org PAX CENTURION • Spring 2019 • Page 39 Legal Notes: Bryan C. Decker, Esq. Decker & Rubin, P.C. Counsel to Members of the Boston Police Patrolmen’s Association Smile, You’re on Candid Camera * A s a police officer, you know that the courts often grant you fewer rights than members of the general public. As SJC Oliver Wendell Holmes famously wrote back in the 1892 case McAuliffe v. City of New Bedford , an officer “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” Based on a recent decision in the Massachusetts Federal Court, another right you don’t have is to be free from being secretly recorded, unlike everyone else in the Commonwealth. Massachusetts has long been at the vanguard of protecting individual privacy from electronic surveillance. Back in 1968, the state enacted the anti-wiretapping law, Mass. General Laws ch. 272, § 99 (“section 99”), which makes it unlawful to secretly intercept oral communications (although video is not prohibited). In the introduction to the law, the legislature made clear that citizens in Massachusetts have a right to be free of secret recording: The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth. Therefore, the secret use of such devices by private individuals must be prohibited. The use of such devices by law enforcement officials must be conducted under strict judicial supervision and should be limited to the investigation of organized crime. Section 99 makes Massachusetts a “two party consent” state, meaning both parties must know they are being recorded for the recording to be lawful. In other words, secret recording is unlawful under the statute. Massachusetts’s courts have consistently held that secret recordings are illegal. In 1976, the Supreme Judicial Court (“SJC”) decided Commonwealth v. Jackson , finding that a secret recording is unlawful, even if it is made in a public place. The law has also been upheld when the person secretly recorded is a police officer. In 2001 in Commonwealth v. Hyde , the SJC upheld Mr. Hyde’s conviction for violating section 99 by secretly recording the police during a traffic stop. Alongside the state law are a number of cases interpreting section 99 in conjunction with the Federal First Amendment, and claims that the 1 st Amendment guarantees the right to record police officers doing their job. In 2011, the First Circuit Court of Appeals decided Gilk v. Cunniffe . In that case Mr. Gilk was walking on Boston Common when he saw officers arresting someone. He took out his phone and began to openly record the officers. One of the officers arrested him for violating Section 99. The criminal case was dismissed, as Mr. Gilk was not secretly recording the officers – he was holding up his recorder (his phone) and it was clear that he was recording the officers. After the dismissal of his criminal case, Mr. Gilk sued in federal court, claiming that his arrest violated his rights under the 1 st and 4 th amendments to the U.S. Constitution. The First Circuit agreed, holding that: Glik was exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearly-established FourthAmendment rights were violated by his arrest without probable cause. The Court held that the 1 st Amendment right was based on the right of the public to gather information, i.e. the right to a free press: An important corollary to this interest in protecting the stock of public information is that “[t]here is an undoubted right to gather news ‘from any source by means within the law .’” After the Gilk decision, the BPD, and many other departments began to train officers in the proper application of §99 – i.e. that open recording is not a violation of the law, but that secret recording is still illegal. This brings us to the December 2018 decision of Massachusetts Federal District Court Judge Patti Saris in the cases of Martin and Perez v. Gross and Conley and Project Veritas Action Fund v. Conley . In both cases the plaintiffs challenged Section 99 as an unconstitutional restriction on their right to record government officials, claiming that that right includes the secret recordings. Project Veritas Action Fund is an undercover enterprise that conducts “stings” on public officials. They are the ones who released damaging Planned Parenthood videos a few years back; they claimed that Section 99 prevented them from coming to Massachusetts to expose misconduct by government officials. The plaintiffs in Martin and Peres were two community activists who routinely openly videotaped BPD officers at work; the record states Martin did it 26 times, Perez 18 times. Surprisingly, the case does not suggest anything bad happened as a result of this open videotaping. But they brought the case because they felt they needed to be able to secretly record. Why?According to the court, “their desire to record secretly stems from a fear that doing so openly will endanger their safety and provoke hostility from officers.” The decision simply takes this as established, there is no analysis of this claim, as to whether it is reasonable, or on what it is based. In deciding whether the 1 st Amendment requires that individuals be allowed to secretly record police and government officials, the case first relies on Gilk and other prior cases to establish the 1 st amendment right to record police officers in public spaces. However, no prior case dealt with a conflict between s. 99 and the 1 st amendment right. In Gilk , there was no secret recording. So, the issue becomes whether the 1 st amendment right can be limited in order to protect the right to privacy – which is an important right. The court finds that it cannot. While officers have a right to privacy, the See Decker on page 46