Today, the ACLU of Massachusetts filed a federal lawsuit defending the right to record the police on behalf of two residents of JP and Roxbury 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, and to order BPD Commissioner William Evans and Suffolk County District Attorney Dan Conley to end that enforcement.

"People have an established constitutional right to record the police in the public performance of their duties, and recent years have demonstrated that these recordings can profoundly affect the public's understanding of encounters between police and civilians," explains Matthew Segal, legal director of the ACLU of Massachusetts. "In practice, however, some people feel afraid to exercise this recognized right. They fear for their safety when they record police openly, and they fear arrest and prosecution under the state wiretap statute when they do so secretly."

"The current situation creates an untenable--and unconstitutional--catch-22. Our suit seeks to fix this problem," says Jessie Rossman, a staff attorney with the ACLU of Massachusetts. "In order for this important right to have real meaning, we must ensure that people can exercise it safely and effectively."

The ACLU of Massachusetts has long championed the right to record the police in the public performance of their duties. In our federal case Glik v Cunniffe, our client Simon Glik began recording when he became concerned that police on Boston Common were treating a man too roughly. Mr. Glik himself was then arrested for his constitutionally protected behavior. In 2011, the U.S. Court of Appeals for the First Circuit unanimously affirmed that Mr. Glik had a First Amendment right to record the police carrying out their duties on Boston Common.

"The fundamental right to record the police in the public performance of their duties does not depend on where you hold your phone," says David Milton, a partner at the Law Offices of Howard Friedman, who represented Simon Glik along with the ACLU of Massachusetts. "Glik did not distinguish between the right to record the police openly and the right to do so secretly, because the First Amendment encompasses both."

The Massachusetts state wiretap statute, on the other hand, does make this distinction--in violation of the Constitution. The 1968 state law criminalizes secret audio recordings, and has been used to arrest and prosecute people for secretly recording police officers performing their duties in public. This leaves those who are afraid to openly record police officers with no opportunity to exercise their constitutionally protected right.

"When I am alone, I do not feel safe openly recording police officers doing their jobs in public," says plaintiff Eric Martin, a Jamaica Plain resident. "In that situation, I would like to secretly record, but I have not and will not do so because I am afraid that I will get arrested or prosecuted for violating the wiretap law."

"Police officers have screamed at me and grabbed my phone when I have openly recorded," says plaintiff René Pérez, a Roxbury resident. "As a result, 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 prosecuted for violating the wiretap law, however, I simply don't record in those situations."

"Enforcement of this state wiretap law against individuals who record the police as they perform their duties in public is violating the fundamental constitutional rights of our clients," says Rossman. "Caught between safety concerns and fear of arrest or prosecution, the exercise of their First Amendment rights is critically chilled. Our suit is necessary to ensure that their right to record is meaningful."

"We hope the Court will affirm the important First Amendment rights at stake in this case for the sake of greater police accountability, and greater safety for both police and members of the public," says Carol Rose, executive director of the ACLU of Massachusetts. "We all suffer when fear of retribution or prosecution stifles the contribution that recordings can make to our understanding of police-civilian encounters."

Because police accountability and public safety can be fostered by recording what occurs on both sides of the badge, the ACLU of Massachusetts also this week sent a suggested model policy on the use of body-worn cameras to 45 police departments across the state. Many other states have moved more quickly than Massachusetts to implement body-worn cameras, highlighting the need for Massachusetts to adopt this technology soon, and to do it right, with good policies to ensure accountability, privacy, and transparency.

"Police officers should adopt their own accountability tools, and people should also hold the police accountable by exercising their right to record," says Segal. "Although the right to record is especially critical in Boston and other places that have yet to implement full-scale body-worn camera programs, the right of civilians to record the police in the public performance of their duties is not diminished in places that already use body-worn cameras."

Click here for more information about the ACLU lawsuit against the BPD, Martin v. Evans.

Click here for more information about the Glik case.

Click here for more information about police body-worn cameras.