A Massachusetts ban on secret audio recordings of police in public areas was declared unconstitutional last month by a federal appeals court, reversing part of a 52-year-old state law that criminalized recordings made without the officer’s permission.
The unanimous ruling by the First Circuit Court of Appeals said the law violated the First Amendment by undermining citizen oversight of law enforcement.
“Massachusetts makes it as much a crime for a civic-minded observer to use a smartphone to record from a safe distance what is said during a police officer’s mistreatment of a civilian in a city park as it is for a revenge seeker to hide a tape recorder under the table at a private home to capture a conversation with an ex-spouse,” Judge David J. Barron wrote for the unanimous three-judge panel.
The panel, which included retired supreme court justice David Souter, upheld a 2018 ruling by a single federal judge in a case brought by the American Civil Liberties Union of Massachusetts and news organizations, including The Boston Globe. The 72-page decision did not throw out the entire statute, and it still is a crime for one member of the public to record another person’s voice without permission.
In the ruling, the court said the public must be allowed to engage in a “species of protected newsgathering” without fear of facing criminal charges.
“The privacy that we enjoy, even in public, is too important to be taken for granted,” the panel ruled in a decision released Dec. 15. “But, so, too, is the role that layperson can play in informing the public about the way public officials, and law enforcement in particular, carry out their official duties.”
The court cited the 1991 recording of the Los Angeles police beating of Rodney King, a Black man, which triggered widespread public protests “and the many recordings of police misconduct that followed” — an indirect reference to last year’s murder of George Floyd.
Matthew Segal, an ACLU attorney involved in the litigation that began four years ago, said the value to public oversight of law enforcement was made clear last month when body camera video from Boston police officers was released, which included some officers making incriminating statements about their potentially professionally inappropriate behavior.
“It was pretty clear that the officers did not have it firmly in mind that they were being recorded,” Segal noted. “And that fact led to revelations about police behavior in Boston that might otherwise” never became known.
Segal stressed that the new approach applies only to police when they are in public space and when they are on duty.
“If a police officer is off duty, this opinion is not saying that you can follow them around and secretly record them,” Segal said in a telephone interview. “What we are talking about is police officers on the job, performing their duties out in public.”
The federal court ruling conflicts with two Supreme Judicial Court rulings where the top state court said the law was clear — if you tape the voice of an officer without their permission, it is a crime. The most recent case was 4-2 ruling in 2001 where the majority upheld the wiretapping convictions of man who secretly recorded Abington police during a traffic stop.
According to the court, Boston police in 2010 had training materials for recruits and on-the-job legal updates shared with active duty officers “that they may arrest and seek charges against private individuals who secretly record police officers performing their duties in public.”
The Globe has asked police and Mayor Martin J. Walsh whether those practices remain in effect and also whether the city will notify officers of the new rule that they cannot arrest a citizen secretly recording them while they are in public space. Walsh on Monday officially approved a city watchdog with authority to investigate police.
The Walsh administration and Boston police opposed the lawsuit but chose not to appeal after the lower court judge sided with the ACLU and news organizations. However, Suffolk District Attorney Rachael Rollins’s office did push for an appellate review in order to get a clear understanding of how a law from the 1960s interacts with 21st century technology and the view of privacy rights.
“Recordings of encounters with law enforcement can shed light on police brutality in ways that words alone cannot, or where the words of poor, Black and brown victims and their families are often not believed,” Rollins said in a statement.