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Martin v. Gross

United States District Court, D. Massachusetts

December 10, 2018

K. ERIC MARTIN and RENÉ PÉREZ, Plaintiffs,
WILLIAM GROSS, 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. PROJECT VERITAS ACTION FUND, Plaintiff,
DANIEL F. CONLEY, in his Official Capacity as Suffolk County District Attorney, Defendant.




         These two cases challenge the application of Mass. Gen. Laws ch. 272, § 99 (“Section 99”) to secret audio recordings in Massachusetts.[1] Section 99, in relevant part, criminalizes the willful “interception” of any “communication.” Mass. Gen. Laws ch. 272, § 99(C)(1). An “interception” occurs when one is able “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” without the consent of “all parties to such communication.” Mass. Gen. Laws ch. 272, § 99(B)(4). Thus, the statute does not apply to open (or non-secret) recording or to video recording (without audio). See id.; Commonwealth v. Hyde, 750 N.E.2d 963, 964 (Mass. 2001) (holding that Section 99 “strictly prohibits the secret electronic recording . . . of any oral communication”).

         The plaintiffs in Martin argue that Section 99 violates the First Amendment insofar as it prohibits the secret audio recording of police officers performing their duties in public. The plaintiff in Project Veritas makes a similar, though broader, argument: that Section 99 violates the First Amendment insofar as it prohibits the secret audio recording of government officials performing their duties in public. The parties in each case also clash over certain ancillary issues that are discussed in more detail below.

         On the core constitutional issue, the Court holds that secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions. Because Section 99 fails intermediate scrutiny when applied to such conduct, it is unconstitutional in those circumstances.


         The following facts, drawn from the summary judgment record in each case, are not subject to genuine dispute. I. Martin v. Gross A. The Parties The plaintiffs K. Eric Martin and René Pérez are two private citizens who live in Jamaica Plain, Massachusetts. The defendants are Suffolk County District Attorney Daniel Conley and City of Boston Police Commissioner William Gross.[2]

         B. The Plaintiffs' Secret Recordings

         Since 2011, Martin has openly recorded police officers performing their duties in public at least 26 times; Pérez has done so 18 times, often live-streaming his recordings. The plaintiffs' recordings of police have included one-on-one interactions, traffic and pedestrian stops of others, and protests.[3] Between the two of them, the plaintiffs have wanted to secretly record police officers performing their duties in public on at least 19 occasions since 2011, but have refrained from doing so. Both have stated that their desire to record secretly stems from a fear that doing so openly will endanger their safety and provoke hostility from officers.

         The plaintiffs have not advanced any specific plans or intentions to surreptitiously record police officers in the course of this litigation. But Pérez stated that he would not rule out secretly recording police officers in various sensitive situations and that he intended to live-stream any secret recordings he is permitted to make. Neither Martin nor Pérez has ever been arrested for violating Section 99.

         C. Enforcement of Section 99

         Since 2011, the Suffolk County District Attorney's Office (“SCDAO”) has opened at least 11 case files that involve a felony charge under Section 99. These have included Section 99 charges where the person recorded was a police officer performing her duties in public. During the same period, the Boston Police Department (“BPD”) has applied for a criminal complaint on a Section 99 violation against at least nine individuals for secretly recording police officers performing their duties in public.[4]

         When asked what governmental interest Section 99 advances, the district attorney asserted that it protects individuals' privacy rights -- specifically, the right of citizens and public officials alike to be on notice of when they are being recorded. Asked the same question, the police commissioner referred generally to Section 99, its legislative history, and judicial decisions interpreting the statute.

         D. Police Training on Section 99

         Section 99 is one of several topics on which BPD officers receive training. The methods of training include training bulletins, training videos, and in-service training. In all, BPD recruits receive 50 to 60 hours of criminal law instruction at the police academy. The instructor teaches from his own textbook, which touches on many, but not all, crimes under Massachusetts law. The text includes a segment on Section 99 --one of over 150 sections discussing various criminal law topics. BPD officers are also instructed using at least two other criminal law manuals that similarly include segments on Section 99 among 150 to 200 other criminal laws.

         Furthermore, BPD has created a training video and a training bulletin related to Section 99. Since 2009, BPD has published 28 training videos; one of them related to Section 99. In recent years, BPD has disseminated 22 training bulletins. One of them is related to Section 99, and it has been circulated three times.

         The video tells officers that Section 99 prohibits only secret recording. It depicts two scenarios of citizens recording police -- one openly and one in secret -- and instructs officers that the first is not a violation of Section 99, but the second is. The video became mandatory viewing for current officers. New recruits watch it as well.

         The bulletin describes two court cases where defendants were convicted for secretly recording police officers performing their duties in public, instructing officers that they have a “right of arrest” whenever they have probable cause to believe an individual has secretly recorded a conversation. It was first circulated in November 2010, then again in October 2011, and most recently in May 2015. The 2011 and 2015 circulations are the only bulletins since 2011 that have required police commanders to read the bulletin aloud to their officers at roll call. A memo accompanying the 2011 recirculation explicitly references the First Circuit decision in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), discussed in more detail below.

         E. Procedural History

         The Martin plaintiffs' claim, brought under 42 U.S.C. § 1983, alleged that Section 99 violates the First and Fourteenth Amendments as applied to the secret recording of police officers engaged in their duties in public places. Resolving a motion to dismiss, the Court held that the plaintiffs had adequately stated a claim that Section 99 violates the First Amendment. The Court also rejected a challenge to the plaintiffs' standing, held that the complaint adequately stated a claim for municipal liability, and held that Pullman abstention was unwarranted.

         The defendants now challenge the claim on the grounds of standing, ripeness, and municipal liability. The district attorney also asks the Court to draw adverse inferences against Martin. The parties have filed cross-motions for summary judgment on the constitutional claim.

         II. Project Veritas Action Fund v. Conley

         A. The Parties

         The plaintiff, Project Veritas Action Fund (“PVA”), is a nonprofit organization that engages in undercover journalism. The defendant is the Suffolk County District Attorney.

         B. PVA's Secret Recording Practices

         PVA has a history of investigating government officials, candidates for public office, and others through the use of secret recording. The organization also investigates suspected fraud, abuse, and corruption. PVA would like to secretly record government officials in Massachusetts, including when they make statements in public places while performing their public duties. PVA has refrained from doing so due to Section 99.

         In general, PVA decides to investigate a story based on considerations like cost, time, level of public interest or newsworthiness, and the likelihood that it will obtain “candid information” from sufficiently high-level individuals. Once an investigation is assigned to a PVA reporter, he or she develops a “cover story” designed to develop trust with the source. The “cover story” is “rarely” true, but PVA enhances its verisimilitude by, for instance, creating fake email or social media accounts, printing false business cards, or creating a new business entity. Often the “cover story” involves volunteering or interning at a target organization, or donating to it. In other cases, PVA reporters use flattery, sex appeal, or romantic overtures to appeal to target sources.

         PVA reporters use “sophisticated” recording equipment, including hidden necktie cameras, purse cameras, eyeglass cameras, and cameras whose lenses are small enough to fit into a button or rhinestone. They have made recordings during campaign staff meetings, within a target's offices, and while meeting with representatives of a target organization. They have also recorded pretextual “dates” with target individuals and conversations at bars.

         PVA's ultimate product is an edited “video report” that is released to the public via its website and/or YouTube channel. The final report leaves out portions of the raw footage. The record includes several examples of PVA's final reports and the raw footage used to create them.

         In this case, PVA identifies four specific projects that it has refrained from conducting on account of Section 99. The projects involve secretly recording: (1) landlords renting unsafe apartments to college students; (2) government officials, including police officers, legislators, or members of the Massachusetts Office for Refugees and Immigrants, to ascertain their positions on “sanctuary cities”; (3) “protest management” activities by both government officials and private individuals related to Antifa protests; and (4) interactions with Harvard University officials to research its endowment and use of federal funds. PVA would like to send its journalists into Massachusetts to develop leads on these and other stories that may emerge.

         C. Procedural History

         PVA's original complaint challenged the constitutionality of Section 99 facially and as applied to it, targeting the statute's prohibition on secret recording in a public place (Count I) and secret recording of oral communications of individuals having no reasonable expectation of privacy (Count II). In March 2017, the Court dismissed PVA's claims insofar as they challenged the application of Section 99 to the secret recording of private conversations, and insofar as they presented facial and overbreadth challenges to Section 99. See Project Veritas Action Fund, 244 F.Supp.3d at 264-66.

         Having preserved its appellate rights as to those rulings, PVA has filed an amended complaint and has narrowed its claim to challenge only Section 99's application to the secret recording of government officials engaged in their duties in public spaces. The district attorney has moved to dismiss on ripeness grounds. Both parties seek summary judgment on the constitutional claim.


         I. Summary Judgment Standard

         A party is entitled to summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphases in original). An issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. A fact is material if it “might affect the outcome of the suit under the governing law.” Id.

         II. Setting the Scene: Glik and Gericke

         The discussion that follows requires an understanding of two First Circuit decisions: Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), and Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014).

         In Glik, the plaintiff was arrested for using his cell phone's digital video camera to openly film several police officers arresting someone on the Boston Common. 655 F.3d at 79, 87. He was recording audio as well as video on the cell phone. Id. at 80. The plaintiff was charged with violating Section 99 and two other state-law offenses. Id. at 79. These charges were later dismissed. Id. The plaintiff sued the police under 42 U.S.C. § 1983, claiming that his arrest for audio and video recording of the officers constituted a violation of his rights under the First and Fourth Amendments. Id. The police officers raised a qualified immunity defense. Id. A central issue on appeal was whether the arrest violated the plaintiff's First Amendment rights -- in other words, “is there a constitutionally protected right to videotape police carrying out their duties in public?” Id. at 82.

         The First Circuit answered affirmatively. Id. It held that the First Amendment's protection “encompasses a range of conduct related to the gathering and dissemination of information.” Id. The First Amendment prohibits the government “from limiting the stock of information from which members of the public may draw.” Id. (quoting First Nat'l Bank v. Bellotti, 435 U.S. 765, 783 (1978)).

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in ...

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