Activists, ACLU Push for the Right to Secretly Record Police in Massachusetts

On July 19, 2018, a federal judge in Boston heard oral arguments in an important lawsuit brought by the ACLU of Massachusetts seeking to establish that the First Amendment protects the right to secretly record police officers. The lawsuit, Martin v. Evans, challenges the constitutionality of Massachusetts’ wiretap statute, Massachusetts General Laws Chapter 272, Section 99, with respect to secret recordings of police officers. Section 99 makes it a felony to secretly record oral communications. Two Massachusetts civil rights activists, Eric Martin and Renee Perez, want to be able to record police secretly without the threat of prosecution.

The Boston Police Department trains its officers that they have a right to arrest civilians for secretly recording them, even though Glik v. Cunniffe—our firm’s landmark 2011 case in the First Circuit, which confirmed the constitutional right to record police—makes no distinction between open and secret recording. Since 2011, the Boston Police Department has brought nine criminal complaints under Section 99 for the secret recording of its police officers. The ACLU’s suit asks the court to rule that it is unconstitutional to arrest people under the wiretap law for exercising their First Amendment right to secretly record police in the public performance of their duties.

Defendants, Boston Police Commissioner William Evans and Suffolk County District Attorney Daniel Conley, argue that the privacy rights afforded under the wiretap law should apply equally to police officers. United States District Judge Patti Saris said that she could not think of a single reason to support the notion that a police officer involved in a public arrest should retain any expectation of privacy. Defendants further claimed that civilians’ right to openly record police is, alone, an effective measure in ensuring that police officers conform to laws. The ACLU argues that secretly recording the police would yield an added layer of transparency that is otherwise lost when officers refrain from misconduct because they know they are being recorded.

Arguing alongside the ACLU in a separate but related suit were attorneys representing Project Veritas. Project Veritas also seeks an injunction against the enforcement of Section 99. Seeking a considerably wider ruling than the ACLU, Project Veritas wants to be allowed to secretly record all individuals in all spaces generally accessible to the public.

Judge Saris said that she was contemplating three forms of potential relief: the narrowest form would protect the secret recording of police officers in public settings (motor vehicle stops, sidewalks, parks); the middle form of relief adds to this the right to secretly record all public officials in all public forums; the broadest form of relief would protect the right to secretly record all individuals in all spaces that are generally accessible to the public. Our firm welcomes any outcome that ends enforcement of Section 99 against those secretly recording the police. Affirming that the First Amendment protects secret recording will result in greater police transparency and accountability, and less police harassment and retaliation against civilians exercising a vital constitutional liberty.

By Alec Larson, Legal Intern


Watchdog Report: Lawyer calls for probe of Worcester police credibility

Howard is quoted in this article: Watchdog Report: Lawyer calls for probe of Worcester police credibility. The article describes civil rights lawyer Hector Pineiro’s account of widespread misconduct in the Worcester police force, including fabricating evidence and hiding evidence that could be used to prove a suspect’s innocence. In many cases, judges in criminal prosecutions questioned the police officers’ conduct. The well-researched article also discusses cases of police misconduct in Springfield, Lowell, and Boston. Howard provides insight into how police misconduct thrives with a lack of proper supervision and accountability. Too often police officers are willing to violate the constitution in order to make an arrest.


Punches as police practice called into question after viral videos

Howard is quoted in this article: Punches as police practice called into question after viral videos. The article discusses a video that went viral this weekend because it shows Worcester, Massachusetts police officers punching a man numerous times after taking him down to the ground. We view these punches as unreasonable force and police brutality. The police department, however, claims that punches like these follow proper police procedure.

Police officers are not allowed to use unreasonable force. When a police officer punches a person who is already subdued it does not serve a legitimate police purpose and is therefore unreasonable. If this use of force follows department policy, the policy must be changed.

Videos of police misconduct such as this one create a renewed opportunity for civilians to argue for police accountability.

We also recommend this column about this incident: Clive McFarlane: Officials too quick to accept police version of violent arrests.


AG Maura Healey promises transparency, but critics say her record falls short

David is quoted in this article in the Boston Globe: AG Maura Healey promises transparency, but critics say her record falls short. The article describes how the attorney general’s office has repeatedly fought to keep government records secret despite the attorney general’s claimed commitment to open government. The article discusses our firm’s public records lawsuit on behalf of People for the Ethical Treatment of Animals, which resulted in an important decision from the state’s highest court affirming the broad scope of the Massachusetts public records law. You can read more about the PETA case here.


Missed warning signs on the road to tragedy

Howard is quoted in this Boston Globe article: Missed warning signs on the road to tragedy. The article describes how a Massachusetts State Police officer let an impaired woman continue driving, and 19 minutes later she struck and killed a 42-year old husband and father. The officers who responded to the crash said the driver couldn’t walk without losing her balance, had “droopy” eyes, and didn’t know what month it was.  Howard was critical of the actions of the State Police in refusing to provide police reports to the District Attorney’s office because the State Police began an internal investigation.

A second article published today describes how the State Police took eight months to hand over information about the crash to prosecutors: Months after fatal crash, State Police provide information to prosecutors.


On video: Lowell Police detention attendant punches man in head

We recommend watching this video from Amid training lapses, video shows handcuffed detainee punched. Video from the Lowell Police Department shows a civilian detention attendant punching a detainee in the head. Our office and the Lowell Sun both obtained this video by making a public records request. Howard is quoted in the article.

Howard is also quoted in this article about the incident: Lowell PD history repeats itself.



We filed a civil rights case against Essex County correctional officers after our clients’ son died of overdose in transport van

We represent the parents of Sam Dunn, a 29-year-old man who died of an opioid overdose while in an Essex County Sheriff’s Department transport van on January 7, 2016. Earlier this week, we filed a civil rights and wrongful death case alleging that two Essex County correctional officers ignored Mr. Dunn’s need for emergency medical treatment, resulting in his death.

We recommend this news story about the case by 5 Investigates.

Our case alleges that Essex County Officers Patrick Barry and John Nguyen were transporting Mr. Dunn to the Massachusetts Alcohol and Substance Abuse Center (MASAC) in Bridgewater, where a judge had ordered Mr. Dunn civilly committed for substance abuse treatment. The officers saw that Mr. Dunn “seemed to be under the influence of some type of drug or alcohol.” Earlier that day, Mr. Dunn had ingested opiates contained in fingers cut from a surgical glove. Video footage of Mr. Dunn from the Essex County Correctional Facility shows that shortly before he was placed in the transport van, he was struggling to stand and convulsing in apparent seizures.

Mr. Dunn spent the last five and a half hours of his life shackled in the back of the prisoner-transport van, unresponsive, and loudly struggling to breathe. Most of this time was spent in the parking lot outside MASAC, which had anti-overdose medication that would have saved Mr. Dunn’s life. Our case alleges that the officers ignored obvious signs that Mr. Dunn was overdosing and failed to follow policies requiring them to maintain constant visual observation of people in their custody and be alert to issues such as drug use and difficulty breathing.

When the officers finally checked on Mr. Dunn, he was unresponsive and his skin had turned blue. The officers summoned emergency medical help, but Mr. Dunn could not be revived. Had the officers gotten medical care for Mr. Dunn at almost any point during the eight and a half hours they were responsible for his care and custody, Mr. Dunn would have lived.


Massachusetts loophole may allow police officers to rape people while on duty and later claim it was consensual

Read this article from digboston: Sex, Consent and Custody. Massachusetts and 35 other states do not explicitly forbid law police officers from having sex while on duty. Individual departments may have policies forbidding on-duty sexual intercourse, but the lack of a state law creates a loophole that officers may use to claim that people in their custody consented to have sex. The article describes several instances of officers trying to use this loophole to get away with rape.

Unlike police officers, Massachusetts prison guards and other correctional officers are forbidden to have sex with people in their custody. State senators are in the process of drafting legislation to prohibit police from having sex with people in their custody or other people they interact with in the course of their duties. We support this legislation.


Howard will speak at upcoming events for law students, lawyers, police officers, and others on the topics of police misconduct, wrongful convictions, and qualified immunity

Howard will be speaking at several upcoming events to share his knowledge of police misconduct law, the doctrine of qualified immunity, and how police and prosecutorial misconduct leads to wrongful convictions.

Today, he will speak to law students at Boston College Law School in a class taught by Geri Hines, a retired judge of the Massachusetts Supreme Judicial Court.

In March, Howard will speak at a Massachusetts Continuing Legal Education program for  attorneys representing people suing police and those defending police officers who want to learn more about police misconduct and police brutality litigation.

Click to read more ...


Howard will speak to police officers and insurance executives about wrongful convictions and methods to reduce police misconduct 

On April 4 Howard will be speaking to law enforcement officials and risk managers and other insurance executives at a conference on “Risk Management and Loss Control for Law Enforcement” in Cape Coral, Florida. Howard will discuss the causes of wrongful convictions and methods to reduce wrongful convictions and false arrests, as well as the plaintiff’s perspective on police misconduct litigation. More information about the program is here:

We appreciate the opportunity to speak to police professionals to work towards our mutual goal of reducing police misconduct.


We filed a civil lawsuit for our client who was falsely arrested by Lynn police officers

We recently filed a civil rights complaint against two Lynn police officers and the City of Lynn for falsely arresting our client, Mr. Randy Spearing, for a violent assault that occurred in May 2016. Mr. Spearing had no involvement in the crime. The Lynn police officers conducted an improper investigation. They ignored evidence that their investigation focused on the wrong gas station and that Mr. Spearing did not commit the crime. They fabricated police reports to conceal the absence of probable cause to arrest and charge Mr. Spearing.

We recommend this article about the case. In the article, the lawyer for the City of Lynn is quoted as saying that the police lineup was insufficient because it wasn’t positive identification. However, the victim did make a positive identification; he identified a different person, not Mr. Spearing. 


Dead, beaten and abused: Millions paid in secret settlements to keep bad cops on the street and the public in danger

We recommend this article about how municipalities have covered up police abuse by ensuring that settlements are not publicized. A review of police departments across the state of New Jersey reveals how when officers break the law or commit misconduct, the investigations of their wrongdoing are often kept secret. When civilians complain about police abuse or brutality, their settlements are not public. This secrecy permits police officers who abuse their position of power to remain on the force. Although this article focuses on New Jersey, the problem of police secrecy exists in Massachusetts as well. While settlements using public funds cannot by law be kept confidential, settlements by insurance companies can be subject to confidentiality clauses. Keeping information about civil rights violations by police officers protects police officers and their departments from being held accountable for their misconduct.


Baltimore Police officer who planted drugs thinking he turned off body camera charged with tampering with evidence; others cleared

This article describes how the Baltimore police officer whose body camera recorded him planting drugs is being charged with tampering with evidence. The body cam video, which was publicized last summer, shows the officer planting drugs before turning on his camera and finding the drugs he just planted. The officer may not have realized that the cameras are programmed to save the 30 seconds of footage immediately before the camera is activated.

A similar situation happened in LA, where officers planted drugs in a black suspect’s wallet, unaware that their body cameras were recording. Body camera videos are showing that police planting drugs is more common than many people believe. These videos show that body cameras can be a useful tool in exposing police misconduct. However, police officers should not decide when to turn the cameras on and off.


Chicago Police Win Big When Appealing Discipline

We recommend this article from Chicago Police Win Big When Appealing Discipline; Analysis shows hundreds of misconduct findings overturned. In the Chicago Police Department, 85% of officers who appeal a disciplinary decision get their punishment overturned or reduced. Officers have successfully appealed cases involving drunk driving, excessive force, domestic violence, and making false statements. The victims who originally filed the complaints are not informed about the appeal and are left with the impression that the officers’ discipline was upheld.

By allowing arbitrators to routinely overturn officers’ discipline, grievance systems like the one described in this article undermine police accountability and embolden police officers to commit misconduct without fear of punishment. This problem exists in police departments in Massachusetts and other states. 


We sent Essex County Sheriff's Department a notice of intent to sue for negligence causing a man’s death

Earlier this month, we sent a demand letter stating our intent to file a lawsuit on behalf of the family of Sam Dunn. In January of 2016, the Essex County Sheriff’s Department took Mr. Dunn into custody, placed him in the back of a sheriff’s van for hours, and ignored him as he died from a drug overdose.  We recommend watching this report by 5 Investigates, which includes video and photos of Mr. Dunn’s final hours.


911 call: IRS agent put a gun in her mouth and sexually assaulted her

Howard is quoted in this story in the Boston Globe: 911 call: IRS agent put a gun in her mouth and sexually assaulted her. Back in July, a college student intern alleged that her coworker, a special agent for the IRS, sexually assaulted her while holding a gun in her mouth. The special agent has not yet been charged with any crimes. He is still working as a law enforcement agent for the IRS.


BUSTED: Watch LA cops plant drugs in black suspect’s wallet – unaware their body cams were on

We recommend this article: BUSTED: Watch LA cops plant drugs in black suspect’s wallet – unaware their body cams were on. Once again, police officers’ body cameras recorded officers planting drugs during an arrest. The police officers may not have realized that their cameras are programmed to save the 30 seconds of footage immediately before the officer activates the camera. Earlier this year, this 30-second feature revealed Baltimore police officers planting drugs. Although juries are reluctant to believe that police officers would plant drugs, perhaps videos from body cameras will show that this practice is more common than many people believe. 


First Circuit Judge Kermit Lipez reflects on the decision he wrote in Glik v. Cunniffe finding that people have the right to record the police performing their duties in public

Judge Kermit Lipez, Senior Judge of the U.S. Court of Appeals for the First Circuit, recently published an essay in the Maine Law Review reflecting on the case our firm handled with the ACLU on behalf of Simon Glik, who was unlawfully arrested on the Boston Common for filming the police with his cell phone. In 2011, Judge Lipez wrote the landmark Glik opinion confirming civilians’ First Amendment right to record the police performing their duties in public.

Judge Lipez’s essay provides a rare opportunity to understand the judge’s view of the opinion. It gives insight into the Glik decision as well as the judge’s reflections on how smartphones, body-worn cameras and other technologies are revolutionizing both policing methods and communities’ responses to policing. Judge Lipez calls the act of filming the police a “potent tool of accountability” and discusses how videos of police have forced the recognition that “black Americans experience the criminal justice system, including police interactions, differently from their white neighbors.” Judge Lipez accepts the legitimacy of the black community’s grievances about police misconduct while honoring the work of the police as a whole. He believes that the power of video will help bridge the divide between communities and their police officers.

Our firm agrees with Judge Lipez that videos of police misconduct have become a powerful tool to validate black communities’ grievances about deep-seated racism in our police departments. As for the notion that video can help bridge the divide? Only time will tell. But in the meantime, more and more police officers will be held accountable for their actions as more and more courts agree with Judge Lipez’s statement in Glik that filming the police is “a basic, vital, and well-established liberty safeguarded by the First Amendment.”


City of Lowell Pays $750,000 to Settle Our Cases Alleging Confidential Informants Planted Cocaine

The City of Lowell agreed to pay $750,000 to settle our three cases alleging that the City used unreliable confidential informants due to its long standing practice of ignoring the need to properly investigate informants and to document their work. This resulted in officer Thomas Lafferty using informants who planted cocaine in the motor vehicles of our three clients. The Lowell police falsely arrested and charged each of our three clients with trafficking in cocaine. They faced mandatory minimum prison sentences for crimes they did not commit.

We recommend this article about the cases: Lowell officer's mishandling of confidential informants proves costly.


Massachusetts Super Lawyers recognizes Howard and David

Super Lawyers, an attorney rating service, has announced that Howard Friedman and David Milton are 2017 Massachusetts Super Lawyers. Howard Friedman has received this recognition for over a decade; David Milton has since 2013. The rating system names no more than 5% of Massachusetts attorneys as Super Lawyers.