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Martin v. Evans

United States District Court, D. Massachusetts

March 13, 2017

K. ERIC MARTIN and RENÉ PÉREZ, Plaintiffs,
v.
WILLIAM EVANS, in his Official Capacity as Police Commissioner for the City of Boston, and DANIEL F. CONLEY, in his Official Capacity as District Attorney for Suffolk County, Defendants.

          MEMORANDUM AND ORDER

          PATTI B. SARIS, CHIEF UNITED STATES DISTRICT JUDGE

         Two civil rights activists bring an as-applied constitutional challenge to the Massachusetts Wiretap Statute, Mass. Gen. Laws ch. 272, § 99. The complaint, brought under 42 U.S.C. § 1983, claims that Section 99, as applied to the secret recording of police officers engaged in their duties in public places, violates the First and Fourteenth Amendments.[1] The plaintiffs seek declaratory and injunctive relief.

         The defendants are William Evans, the Commissioner of the Boston Police Department (“BPD”), and Daniel Conley, the Suffolk County District Attorney. Evans and Conley each move to dismiss. Evans raises three issues: lack of standing, failure to state a First Amendment violation, and lack of municipal liability. Conley raises two issues: lack of standing and Pullman abstention.

         The Court holds that: (1) the plaintiffs survive the standing challenge; (2) the complaint adequately states a claim of municipal liability; (3) Pullman abstention is unwarranted; and (4) the plaintiffs have adequately stated a First Amendment claim. Both motions to dismiss (Docket Nos. 16, 18) are DENIED.

         FACTUAL BACKGROUND

         For purposes of the motions to dismiss, the facts are taken as alleged in the complaint.

         Eric Martin works for a Boston-based nonprofit organization and soup kitchen. He is also a civil rights activist who regularly participates in political demonstrations throughout Boston. Martin alleges that about once a week, he openly records BPD police officers performing their duties in public. He also allege that about once a month, he has wanted to secretly record BPD police officers performing their duties in public but has refrained from doing so for fear of prosecution under Section 99. For instance, Martin has wanted to secretly record police officers when he is alone because of fear that open recording would provoke a hostile response from the police officer that threatens his physical safety. Martin alleges that this fear is based on his personal experiences, including a December 2011 incident in which a BPD police officer shoved him to the ground and threatened to arrest him for taking his picture.

         Martin also regularly organizes and teaches “Know Your Rights” trainings. At these training sessions, Martin instructs people that there is a First Amendment right to record police officers performing their duties in public but that they should only make such a recording if they feel safe doing so openly. If not for Section 99, he would instruct others to make secret recordings in such situations.

         René Pérez is also a civil rights activist who regularly participates in political demonstrations throughout Boston. He alleges that he has wanted to secretly record BPD police officers performing their duties in public on numerous occasions, including during traffic stops when he is alone, but that he has refrained from doing so for fear of prosecution under Section 99. The reason he would want the recording of police officers to be secret in some instances is fear that open recording would provoke a hostile response that threatens his physical safety. He alleges that this fear is based on his personal experiences, including an incident in which a BPD police officer noticed that Pérez was recording police interactions with protesters and proceeded to scream at him and grab his recording device. Pérez also regularly teaches “Know Your Rights” trainings. Pérez would like to instruct trainees that they can secretly record their encounters with police officers when they feel unsafe recording openly, but he does not do so for fear of prosecution under Section 99.

         The plaintiffs allege that BPD's official training materials instruct officers that they have a “right of arrest” whenever a person secretly records oral communications. The training materials describe two Massachusetts cases in which the defendants were convicted for secretly recording the police performing their duties in public. A 2010 BPD training video instructed police officers that they could arrest persons who secretly record police officers performing their duties in public.

         The plaintiffs also allege that the Suffolk County District Attorney has previously brought Section 99 prosecutions against secret recording of police officers performing their duties in public. For example, in 2006, the Suffolk County District Attorney obtained a conviction involving a defendant who recorded police officers through a device in his jacket during a demonstration. Commonwealth v. Manzelli, 864 N.E.2d 566 (Mass. App. Ct. 2007).

         LEGAL FRAMEWORK

         I. Motion to Dismiss Standard A Rule 12(b)(6) motion is used to dismiss complaints that do not “state a claim upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6). In evaluating a Rule 12(b)(6) motion, the Court must accept the factual allegations in the plaintiffs' complaint as true, construe reasonable inferences in their favor, and “determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014).

         II. Massachusetts Wiretap Statute

         The Massachusetts Wiretap Statute makes it a crime to “willfully commit[] an interception, attempt[] to commit an interception, or procure[] any other person to commit an interception or to attempt to commit an interception of any wire or oral communication.” Mass. Gen. Laws ch. 272, § 99(C)(1). Interception is defined as “to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.” Id. § 99(B)(4). An oral communication is defined as “speech, except such speech as is transmitted over the public air waves by radio or other similar device.” Id. § 99(B)(2).

         The Massachusetts Supreme Judicial Court has held that the statute “strictly prohibits the secret electronic recording by a private individual of any oral communication, and makes no exception for a motorist who, having been stopped by police officers, surreptitiously tape records the encounter.” Commonwealth v. Hyde, 750 N.E.2d 963, 964 (Mass. 2001). The SJC noted that the statute provides a number of exceptions but that the list does not include any “exception for a private individual who secretly records the oral communications of public officials.” Id. at 966. The SJC also pointed out that an earlier version of the law had permitted recording with one-party consent but that the legislature rejected that approach in amending the statute in 1968. Id. at 967.

         DISCUSSION

         I. Standing for ...


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