If the unnamed individual who filmed the horrifying shooting of a man in Baton Rouge, La., on Tuesday had done the exact same thing in Massachusetts, he or she might conceivably be in trouble today for breaking the state’s antiquated wiretap law.
Think about that for a moment: It’s because of the that video recording that the world first saw what happened to Alton Sterling, a black man killed by a white police officer while he was apparently lying on the ground. The killing, and a subsequent police shooting in Minnesota, has sparked a renewed wave of protest against racial bias in law enforcement. It’s also led to a federal investigation, which is appropriately becoming the new norm after police shootings.
But it’s unclear whether the unnamed witness in Louisiana, who has not been identified, for that person’s safety, was openly taping the video of the incident. The video included sound, a crucial distinction under Massachusetts law, which covers audio but not video recordings.
One hopes that no Massachusetts prosecutor would ever use the state wiretap law to punish a citizen videographer under such circumstances. In Suffolk County, prosecutors in 2013 wisely declined to prosecute a woman who recorded a fatal encounter with police.
But charges have been brought under the state wiretap law as recently as last year, when a woman was charged in Hardwick as an accessory to illegal wiretapping because she allegedly knew about another person’s secret recording of a traffic stop. Whether or not the law is widely used, as long as authorities retain the power to prosecute residents for secretly recording police, it will deter citizens from providing what has now clearly become a vital check on government power.
The ACLU filed a federal lawsuit against the Boston Police Department and Suffolk District Attorney Dan Conley over the law in June, arguing that it violated the First Amendment. As the suit put it, “it is the only way that individuals who are too afraid to openly record police officers can exercise their constitutionally protected rights, and it is a critical tool to gather accurate information about official government activity.” (Although the BPD and Conley are named as defendants, challenges to the constitutionality of state laws are normally handled in federal court by the attorney general; a spokeswoman for Attorney General Maura Healey said the office was deciding how to proceed.)
In defending the current policy, Conley’s spokesman, Jake Wark, said the ACLU was trying to “strip some people of the [wiretap] law’s protection based on their employment.” But as the ACLU’s suit makes clear in its first sentence, the ruling the organization is seeking would apply to officers “in the public performance of their duties.” In other words, it wouldn’t free Peeping Toms to surreptitiously record off-duty cops talking to their family.
A court ruling can take years, and the best solution would be for the Legislature to fix the law itself by explicitly allowing all taping of on-duty police in public. It takes no courage to condemn shootings in faraway states or tweet support for Black Lives Matter. But lawmakers can make clear that in Massachusetts, it’s legal to use video and audio to document police misconduct in public. Indeed, it may be the only tool that some residents have.