In a victory for two Boston-based activists represented by the ACLU of Massachusetts and Proskauer Rose LLP, a federal court today ruled that secret recording of law enforcement officials performing their duties in public is protected by the First Amendment.

The ACLU of Massachusetts filed a lawsuit in June 2016 against the Boston Police commissioner and Suffolk County district attorney, defending the right to record police on behalf of two Boston civil rights activists. According to the complaint, the plaintiffs will not secretly record police due to a credible fear of arrest and prosecution under the wiretap statute. While they have often exercised their right to record the police openly, they believe recording secretly would both protect their safety and more accurately document police behavior.

“We’ve seen that videos of police officers can show the realities of policing in powerful ways: People’s recordings of police interactions have started national conversations about police reform and accountability,” said Carol Rose, executive director of the ACLU of Massachusetts. “This ruling reaffirms that the fundamental right to record police officers does not disappear when a recording device is covered.”

“This is an important decision, upholding the public’s right under the First Amendment to record police officers performing their official duties in a public place,” said William C. Silverman, Pro Bono Partner at Proskauer.

The 1968 Massachusetts wiretap law criminalizes secret audio recordings, and has been used to arrest and prosecute people for secretly recording police officers performing their duties in public. Both the Boston Police Department and the Suffolk County District Attorney’s Office have pursued criminal action under the state law against individuals for secretly recording police officers performing their duties in public. In her ruling, Judge Patti B. Saris of the United States District Court of Massachusetts calls that application of the wiretap law unconstitutional.

“I often fear for my safety when I openly record police officers in public, and I fear arrest and prosecution if I record secretly,” said Eric Martin, a plaintiff and Jamaica Plain resident. “Caught between safety concerns and fear of punishment, I often choose not to record at all. I am grateful that the court affirmed that our right to secretly record law enforcement is in fact protected.”

“We all suffer when fear of retribution or prosecution stifles conversations about police accountability,” said René Pérez, a plaintiff and Roxbury resident. “This ruling is a step towards greater police accountability and towards the safe, effective exercise of the right to record the police.”

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