Last week, the Massachusetts Supreme Judicial Court (SJC) ruled in Commonwealth v. Mora that the Massachusetts state constitution prohibits police from conducting continuous, long-term pole camera surveillance targeted at a private home without a warrant.
The Massachusetts highest court’s decision builds upon its thoughtful interpretation of 18th, 19th and 20th century law as applied to 21st century technology, a growing and impressive body of case law. Over the past ten years, the Court has protected Massachusetts residents’ reasonable expectations of privacy from warrantless long-term GPS tracking, historical cell phone location tracking, and real-time cell phone location tracking, and provided the groundwork for a successful challenge to ubiquitous, warrantless license plate tracking. In this case, the Court addressed the privacy implications of pole cameras trained on homes, with the ability to remotely pan, tilt and zoom.
MONTHS OF VIDEO SURVEILLANCE TARGETING A PRIVATE HOME? YOU’RE GONNA NEED A WARRANT FOR THAT.
In Mora, police placed a surreptitious camera atop a utility pole and used it to watch the homes of two people for several months. Relying on the mosaic theory, the Court held that long-term pole camera surveillance of the home allows the government to aggregate many different pieces of information that, when taken as a whole, expose otherwise unknowable details of a person’s life. The camera’s location was static. But the Court made clear that its earlier cases did not turn on the collection of location for location’s sake. Instead, the SJC emphasized,
"[r]ather than focus solely on whether a surveillance technology tracks a person’s public movements, our analysis under art. 14 turns on whether the surveillance was so targeted and extensive that the data it generated, in the aggregate, exposed otherwise unknowable details of a person’s life."
In other words, what matters from the constitutional perspective is neither the specific technology that is used, nor the specific information collected, but rather whether technology allows the government to collect a sufficient amount of data over a sufficient period of time to reveal intimate details about an individual that would otherwise be difficult, if not impossible, to obtain via analogue means.
In this case, as the ACLU of Massachusetts argued in our friend of the court brief, the long-term video surveillance likely captured the most intimate parts of these families’ lives, including their religious practices, political engagement, health events, romantic interests, patterns of daily life, personal and business associations, and more. The Supreme Judicial Court concluded, “[t]his combination of duration and aggregation here is what implicates a person’s reasonable expectation of privacy.” After all, as the Court explained:
"even when pole cameras do not see into the home itself, by tracking who comes and goes over long periods of time, investigators are able to infer who is in the home, with whom the residents of the home meet, when, and for how long. If the home is a ‘castle,’ a home that is subject to continuous, targeted surveillance is a castle under siege. Although its walls may never be breached, its inhabitants certainly could not call themselves secure."
Going forward, the Court has made clear that whether a person in Massachusetts has a reasonable expectation of privacy from the government’s use of digital surveillance technology is not strictly a question of whether their movements are tracked. Instead, the constitutional test turns on (1) the duration of the surveillance and (2) the government’s ability to aggregate otherwise unknowable details through the particular surveillance at issue.
PRIVACY FOR ALL, NOT JUST THE RICH
A key argument advanced in the ACLU of Massachusetts amicus brief was that the Mora case also raised significant economic and racial justice issues pertaining to who gets privacy and who does not. Thankfully, the SJC agreed. In its ruling, the Court affirmed that absent a warrant requirement, people who seek privacy in the area around their homes would be forced to erect physical barriers to protect themselves from the prying eyes of the government. The Court held that allowing long-term video surveillance of private homes without warrant protections would have a devastating disparate impact on those who lack the money to build privacy walls around their homes, and for those who live in denser urban areas where such walls are impractical. Affirming that privacy can’t just be a right for the rich or people with large plots of land, the Court held that “affording different levels of protection to different kinds of residence is troubling because it would apportion [constitutional] protections on grounds that correlate with income, race, and ethnicity.”
LOOKING FORWARD
Last week’s pole camera ruling at the SJC is particularly important for Massachusetts residents in light of a contradictory ruling under the Fourth Amendment last month, from a panel of judges at the First Circuit Court of Appeals in United States v. Moore-Bush. In his concurring opinion, Judge Baron explained that he joined the majority’s conclusion based on his determination that a prior First Circuit decision, United States v. Bucci, bound the panel. But he went on to emphasize, “in my view, the proper course for our Court is to use this case to give Bucci fresh consideration en banc, so that we may determine for ourselves whether the result that it requires is one that the Supreme Court’s decision, from Katz to Carpenter, prohibit.” The petitioners in that case have asked the court to rehear the pole camera issue before the entire First Circuit, and the ACLU of Massachusetts submitted an amicus brief in support of these en banc petitions. The Court’s decision whether to take the case on en banc is still pending.
This guest post was authored by Kristin M. Mulvey, Legal Fellow, ACLU of Massachusetts
Date
Friday, August 14, 2020 - 12:15pm
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By Kade Crockford, director of the Technology for Liberty Project at the ACLU of Massachusetts
During debate in the Massachusetts State Senate over legislation to strictly limit qualified immunity granted to public employees, Senator Ryan Fattman stressed that Massachusetts police officers are not like the bad cops we see in other states. Senator Fattman distanced Massachusetts police from the murder of George Floyd, arguing that cops in the Bay State are better than that. “We understand that our Massachusetts law enforcement officers are the best trained, well educated, and well-meaning in our nation, bar none,” he said. “The egregious sins of other law enforcement in other parts of our country should not be their burden to bear.”
But what about the egregious sins committed by police right here in Massachusetts? Senator Fattman’s speech extolling the virtue of cops in Massachusetts came less than two days after the federal Department of Justice released a scathing report about the Springfield Police Department’s narcotics unit, accusing the cops of engaging in a pattern or practice of unreasonable force in violation of the Fourth Amendment, threatening to murder and plant evidence on people, and using white supremacist language, among other egregious rights violations.
The report makes for disturbing reading. Its publication is all the more shocking given its origin. After all, Attorney General Barr—the top Department of Justice official—recently said Americans who don’t “support and respect” the police “might find themselves without the police protection they need.” Barr serves at the pleasure of President Donald Trump, who infamously complained that police officers do too much to protect arrestees from physical injury, and who just this week threatened to “take over” cities run by “radical libs” who, in the President’s mind, aren’t tough enough on crime.
This administration has conducted a grand total of one civil rights investigation into police departments nationwide, and they chose Springfield, Massachusetts. Even Barr couldn’t overlook the police abuses taking place in one of the biggest cities in the Commonwealth.
It’s impossible to read this DOJ report on the Springfield Police Department and come away believing, as Senator Fattman appears to, that there is no need to reform qualified immunity laws, which allow police to get away with violating people’s rights, consequence free.
Among the report’s findings:
- Cops routinely hit people in the face and head: “Narcotics Bureau officers regularly punch subjects in the head and neck area without legal justification…Tellingly, a former Narcotics Bureau officer reported that people know that if you mess with the SPD or try to run, you ‘get a beat down.’ Incident reports we reviewed support this officer’s observation.”
- Cops dress as civilians, don’t announce they are police, and immediately use force: “In many situations, Narcotics Bureau officers quickly escalate their situational responses to involve force without first identifying themselves as officers or issuing verbal commands. Given that Narcotics Bureau officers often operate as plainclothes officers, they often do not have uniforms or other indicators that would help distinguish them as law enforcement officers. Nonetheless, we found that officers fail to take basic steps to identify themselves before resorting to force.”
- Cops routinely lie in their police reports about the extent of the injuries they cause to their victims: “In the case of P.J., he claimed that he fled in his vehicle because he was being chased by an unmarked vehicle and did not know law enforcement officers were in that vehicle. In one report, an officer describes ‘extracting [P.J.] through the passenger side door and proned [him] face down onto the pavement.’ Photos show he sustained significant injuries—severe contusions and dark bruising on the right side of his face, a large black eye, a gash on the bridge of his nose, and additional abrasions on the left side of his face and the left side of his nose. These injuries are inconsistent with the officers’ reports that P.J. had ‘small cuts to the face,’ and are instead consistent with repeated strikes of his head.”
The DOJ report describes one particularly shocking case in which officers face criminal charges:
The indictment alleges that the sergeant kicked one of the youths in the head, spat on him, and said, “welcome to the white man’s world.” Further, the sergeant allegedly threatened to, among other things, crush one of the youth’s skulls and “fucking get away with it,” “fucking bring the dog back [and] let him fucking go after” a youth, “fucking kill [one of the youth] in the parking lot,” charge a youth with a murder and “fucking make it stick,” and that he would “stick a fucking kilo of coke in [one of the youth’s] pocket and put [him] away for fucking fifteen years.” The indictment also alleges that during interrogation, the sergeant “pointed to blood on his boot” and told one of the youths that if he lied, the youth’s “blood would be on [the sergeant’s] boot next.”
Are these the same “best trained…well-meaning” police officers Senator Fattman talked about in his floor speech last week?
Qualified immunity in Massachusetts allows police to get away with appalling rights violations.
Currently, state law and court precedent allow police officers and other public employees to skirt civil liability as long as they can demonstrate that the law they violated was not “clearly established” at the time of the incident. In other words, victims of even egregious police abuse are denied their day in court, as long as no public official has been found to have broken the law by committing the exact same abuse against someone else in the past. This is qualified immunity.
S.2800, passed this week by the Massachusetts state senate, would place limits on this doctrine, ensuring that victims of police brutality and constitutional rights violations have recourse to hold police departments civilly liable for the harm they cause.
What does qualified immunity mean in practice? Here are just three examples of civil rights lawsuits courts in Massachusetts have dismissed, finding that the police lawbreaking at issue wasn’t clearly established:
- Sexual assault by cop. When a police officer’s midnight search for drugs in a woman’s apartment turned up nothing illegal, he took her to the hospital and made a doctor search her vagina, where he also did not find drugs. The officer got a warrant allowing this vaginal search by telling the magistrate that a confidential informant told police the woman had once gone into the bathroom and then returned with drugs. The informant also said he heard the woman kept drugs in her vagina. The woman’s civil rights lawsuit was thrown out of court because the police officer’s conduct didn’t violate clearly established law. Rodriques v. Furtado, 575 N.E.2d 1124 (Mass. 1991)
- Killed for holding a pen. A state trooper responded to a call for help from a distressed driver. When the trooper arrived on scene, the driver was out of his car “yelling and jumping up and down.” The driver began walking towards the officer with a pen in his hand, the trooper yelled at him to stop, and when he didn’t, the trooper pepper-sprayed the man and shot him twice. The man died later at the hospital. A lawsuit filed by the man’s family was dismissed; the judge cited qualified immunity. Justiniano v. Walker, No. 15-cv-11587-DLC, 2018 WL 4696741 (D. Mass. Sept. 30, 2018), appeal docketed, No. 20-1063 (1st Cir. Jan. 15, 2020)
- Subjected to torture because of a disability. Prison guards at MCI-Norfolk repeatedly assigned a man who could not climb stairs to a cell on the second or third floor. When he refused to go to his assigned cell because he could not climb the stairs, guards punished him by putting him in solitary confinement. A court ruled the guards couldn’t be held liable because the laws they broke weren’t “clearly established.” Shedlock v. Department of Correction, 818 N.E.2d 1022 (Mass. 2004)
Police unions and police groups like the Massachusetts Chiefs of Police Association and the Massachusetts Association of Minority Law Enforcement Officers have been aggressively lobbying lawmakers to reject meaningful changes to qualified immunity law—or, like the Boston Police Patrolman’s Association, shamelessly lying about the law’s meaning to mislead the public.
In spite of what police organizations and their supporters in this fight are saying, the reform the Senate passed would preserve qualified immunity under state law, but reform it to apply only where the conduct at issue was consistent with the law at the time. Public officials would still be able to get a case dismissed if it is frivolous or prevail on the merits if it lacks merit. But there is a huge upside for accountability and justice for victims of police misconduct.
Senator Fattman may not have read the DOJ report on the Springfield Police Department’s horrific abuses. But every state legislator should. And then they must act. If you agree, tell your lawmakers to swiftly pass legislation that includes strong qualified immunity reform.
Date
Tuesday, July 14, 2020 - 10:30am
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Carol Rose is the executive director of the ACLU of Massachusetts.
As the nation reckons with the terrible cost of this pandemic—the loss of loved ones and unprecedented economic hardship—we must ensure that our democracy itself does not suffer irreparable harm. Given expert warnings that cases of COVID-19 will persist or even spike in the fall, and given the likelihood that physical distancing will need to continue, Congress and state governments should act swiftly to pass legislation that will safeguard our elections and make it possible for all eligible voters to cast their ballots without undermining public health.
The recent elections in Wisconsin serve as a cautionary tale to other states: Nobody should be forced to choose between their health and basic rights.
Thankfully, Massachusetts legislators are working to make sure voters do not have to face that impossible choice here. Already there are several proposals—including bills by Senator Cynthia Creem, Senator Rebecca Rausch, and Representative Adrian Madaro—that would make it easier to vote safely in the September primaries and November general election. And last week, Representatives John Lawn and Michael Moran filed a bill, sponsored in the Senate by Eric Lesser and Adam Hinds, that would enable widespread voting by mail, expand early voting, and ensure that people can safely vote in person. Together, these steps would allow as many people as possible to stay home and cast their ballots remotely, while protecting those for whom in-person voting is still the most viable option.
Expanded access to mail-in voting is a common-sense solution to protect democracy and people’s well-being during this public health crisis. Secretary of State William Galvin has already said that anyone affected by COVID-19 should be entitled to an absentee ballot; the proposed legislation would affirm that any Bay State voter can vote absentee in the fall as a precautionary measure. Importantly, the bill would also require the Secretary of State to mail every registered voter an absentee ballot for the general election. Absentee ballots would be mailed at least 19 days before the election, with return postage pre-paid and in several languages. Voters shouldn’t have to go to extraordinary lengths or put themselves or others in danger to cast their ballots.
But we can’t rely solely on absentee ballots—something the ACLU of Massachusetts made clear in a recent letter to state leaders. The Commonwealth must preserve in-person voting, in part to account for obstacles faced disproportionately by communities of color, people living with disabilities, and the elderly. Some voters, for example, live where mail delivery is not reliable or may temporarily relocate to a place in order to self-quarantine and therefore may not receive mail in a timely way. Data shows that these groups have been hardest hit by the public health crisis. We cannot make matters worse and allow vulnerable voters to be disenfranchised. We must allow for safe, accessible in-person voting.
To make in-person voting as safe as possible, we need public health protections at the polls, including plans for physical distancing and resources such as cleaning supplies and personal protective equipment. But we also need to support physical distancing by spreading out voting over time. The bill filed by Representatives Lawn and Moran would expand early voting—for two weeks before the September primary and three weeks before the general election in November. This will allow voters to visit polling stations in smaller numbers on any given day and thus enable more effective implementation of physical distancing guidelines.
The ACLU is proud to work with other voting rights organizations and several legislative champions to put these issues front and center. Now, the full legislature must act quickly. We are only a few months away from Election Day, and the government is already approaching crucial deadlines to set the wheels of the electoral system in motion. Time is of the essence, and when voting rights are at stake, we should not delay.
Massachusetts has already demonstrated the capacity to lead in this crisis. The Commonwealth is home to some of the finest research and public health institutions in the country, and they have done remarkable work to curb the spread of this disease. We can and should muster that same spirit of excellence and civic commitment in order to safeguard something equally as important—our democracy itself. This year, more than ever, we cannot afford to fail.
Date
Thursday, May 14, 2020 - 10:00am
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