United States District Court, D. Massachusetts
K. ERIC MARTIN and RENÉ PÉREZ, Plaintiffs,
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
B. SARIS, CHIEF UNITED STATES DISTRICT JUDGE
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. The plaintiffs seek declaratory and
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.
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.
purposes of the motions to dismiss, the facts are taken as
alleged in the complaint.
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.
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.
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.
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.
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).
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).
Massachusetts Wiretap Statute
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).
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.
Standing for ...