United States District Court, D. Massachusetts
K. ERIC MARTIN and RENÉ PÉREZ, Plaintiffs,
WILLIAM GROSS, in His Official Capacity as Police Commissioner for the City of Boston, and RACHAEL ROLLINS, in Her Official Capacity as District Attorney for Suffolk County, Defendants. PROJECT VERITAS ACTION FUND, Plaintiff,
RACHAEL ROLLINS, in Her Official Capacity as Suffolk County District Attorney, Defendant.
MEMORANDUM AND ORDER
B. Saris Chief United States District Judge.
these two actions, Plaintiffs challenged the
constitutionality of Mass. Gen. Laws ch. 272, § 99
(“Section 99”), which, among other things,
prohibits secret audio recordings of government officials in
Massachusetts. On December 10, 2018, the Court allowed
Plaintiffs' motions for summary judgment in both cases
and declared that Section 99 violates the First Amendment
insofar as it prohibits the secret audio recording of
government officials, including law enforcement officers,
performing their duties in public spaces, subject to
reasonable time, place, and manner restrictions. Martin
v. Gross, 340 F.Supp.3d 87, 109 (D. Mass. 2018). The
Court directed the parties to submit a proposed form of
injunction. Id. Defendants, the Suffolk County
District Attorney and the Police Commissioner for the City of
Boston, now argue that a permanent injunction is not
necessary, and a declaratory judgment is sufficient.
Defendants also ask the Court to narrow the scope of its
previous ruling, for example, by defining “government
officials” and “public space.”
reasons discussed below, the Court agrees that a declaratory
judgment is sufficient to give effect to the Court's
ruling but declines the request to narrow the holding.
argue that the Court should enter a declaratory judgment that
fixes the bounds of constitutionally permissible conduct
rather than issue an injunction. They contend that a
declaratory judgment is a less drastic, non-coercive remedy
that will have the same practical effect as an injunction and
will better comport with the principles of federalism and
comity. They also argue for various provisions not contained
in the Court's December 10 order, including: (1) a
definition of “public space” as “a
traditional or designated public forum”; (2) a more
robust definition of “government official”; and
(3) an affirmative declaration that Section 99 is still
enforceable against a person who surreptitiously records the
communications of someone other than a “government
Declaratory Judgment or Injunction
first question is whether the Court should issue a
declaratory judgment rather than an injunction. The Supreme
Court has explained that Congress enacted the Declaratory
Judgment Act (codified at 28 U.S.C. §§ 2201-02) to
create a form of relief “to act as an alternative to
the strong medicine of the injunction and to be utilized to
test the constitutionality of state criminal statutes in
cases where injunctive relief would be unavailable.”
Steffel v. Thompson, 415 U.S. 452, 466 (1974).
Although the practical effect of the two forms of relief is
ordinarily the same, see Samuels v. Mackell, 401
U.S. 66, 73 (1971), a declaratory judgment is a “milder
form of relief” because it is not coercive, i.e.,
noncompliance will not result in contempt proceedings,
Steffel, 415 U.S. at 471; see also Doran v.
Salem Inn, Inc., 422 U.S. 922, 931 (1975) (“At the
conclusion of a successful federal challenge to a state
statute or local ordinance, a district court can generally
protect the interests of a federal plaintiff by entering a
declaratory judgment, and therefore the stronger injunctive
medicine will be unnecessary.”).
cases where a constitutional challenge to the validity of a
state or local statute or regulation has been successful, the
First Circuit has approved the entry of injunctive relief.
See Cutting v. City of Portland, 802 F.3d 79, 81
(1st Cir. 2015); Mangual v. Rotger-Sabat, 317 F.3d
45, 69 (1st Cir. 2003); see also Nationalist Movement v.
City of Boston, 12 F.Supp.2d 182, 195 (D. Mass. 1998)
(entering permanent injunction barring enforcement of city
ordinance regulating parade permitting after the court held
the regulation was facially invalid). But in other cases
where the validity of a state or local statute or regulation
is at issue, courts in this district have issued declaratory
judgments rather than permanent injunctions. See, e.g.,
McLaughlin v. City of Lowell, 140 F.Supp.3d 177, 197
& n.16 (D. Mass. 2015) (in facial challenge to city's
anti-panhandling ordinance, declaring ordinance
unconstitutional but declining to enter separate injunction
to similar effect); Nat'l Ass'n of Tobacco
Outlets, Inc. v. City of Worcester, 851 F.Supp.2d 311,
321 n.5 (D. Mass. 2012) (in facial challenge to city's
prohibition on advertising of tobacco products, declaring
ordinance unconstitutional but declining to enter separate
injunction to similar effect); Canterbury Liquors &
Pantry v. Sullivan, 16 F.Supp.2d 41, 51 (D. Mass. 1998)
(declaring state statute relating to the pricing of wholesale
liquor was preempted by the Sherman Act but declining to
enter separate injunction to similar effect); S. Bos.
Allied War Veterans Council v. City of Boston, 875
F.Supp. 891, 920 (D. Mass. 1995) (in as-applied challenge to
city's parade permitting policy, declaring that
permitting requirements for St. Patrick's Day parade
violated the Constitution but declining to enter separate
injunction to similar effect); Mass. Gen. Hosp. v.
Sargent, 397 F.Supp. 1056, 1057, 1063 (D. Mass. 1975)
(declaring that state policy of failing to make prompt and
full payments under the federal Social Security program
violated Article VI of the U.S. Constitution but declining to
enter injunction to similar effect).
Court holds that a declaratory judgment is more appropriate
than a permanent injunction in this case for two reasons.
First, the Court has held that Section 99 is invalid as
applied to the secret audio recording of government
officials, “subject to reasonable time, place, and
manner restrictions.” Martin, 340 F.Supp.3d at
109. Because there is room for disagreement about whether a
restriction is reasonable, the threat of contempt for
violation of the injunction is too blunt and coercive an
enforcement mechanism in situations where decision-making is
necessarily split second. Second, the Court has not defined
the meaning of “public space” or
“government official.” The issuance of an
injunction could effectively implicate a judicial
second-guessing of the policing function to determine whether
the order was violated. Cf. Badger Catholic, Inc. v.
Walsh, 620 F.3d 775, 782 (7th Cir. 2010) (holding that a
declaratory judgment sufficed where an injunction may have
effectively required the judge to take over management of the
program for distributing funds to student groups challenged
on First Amendment grounds). For these reasons, the Court
concludes that a declaratory judgment strikes the correct
balance between Plaintiffs' First Amendment interests and
Defendants' sovereignty as state and local law
enforcement officials. See Doran, 422 U.S. at 931.
in Martin claim that a permanent injunction is
necessary because there are reasons to doubt that Defendants
will comply with just a declaratory judgment. As evidence,
they point to the fact that Defendants continued to enforce
Section 99 for eight years following the First Circuit's
holding in Glik v. Cunniffe, 655 F.3d 78, 83 (1st
Cir. 2011), “that the First Amendment protects the
filming of government officials in public spaces.”
Further, they contend Defendants enforced Section 99 one time
during the pendency of this litigation, even after the Court
denied their motions to dismiss.
Court is not persuaded that Defendants will not comply with
its decision going forward. The Court has interpreted Glik
“as standing for the proposition that the First
Amendment protects the right to record audio and video of
government officials, including law enforcement officers,
performing their duties in public, subject only to reasonable
time, place, and manner restrictions.” Id. at
97-98. As a factual matter, though, Glik concerned recording
done openly rather than secretly. See 655 F.3d at 79, 87.
That Defendants read Glik narrowly in the past is not proof
that they will continue to do so now that the Court has
ruled. Defendants have stated they will follow this
Court's ruling, and the Court will take them at their
word. See No. 16-cv-11362-PBS, Dkt. No. 166 at 2. The Court
“assume[s] that municipalities and public officers will
do their duty when disputed questions have been finally
adjudicated and the rights and liabilities of the parties
have been finally determined.” Commonwealth v. Town
of Hudson, 52 N.E.2d 566, 572 (Mass. 1943); see also
McLaughlin, 140 F.Supp.3d at 197 n.16.
the Court will not issue a permanent injunction and finds
that a declaratory judgment is a sufficient remedy.
Scope of ...