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First Circuit Protects Citizens Recording Police

Keith G. Langer Dec. 28, 2020

The First Circuit struck down that portion of the MA wiretap statute which forbids recording police acting in their official capacity, ruling that portion of the MA wiretap statute is unconstitutional:

 “,[W]e conclude that the statute's outright ban on such secret recording is not narrowly tailored to further the government's important interest in preventing interference with police doing their jobs and thereby protecting the public,” Judge David J. Barron wrote for the panel, applying the intermediate scrutiny test for content-neutral speech restrictions."

 "Adam Schwartz of San Francisco, who co-authored an amicus brief on behalf of the Electronic Frontier Foundation, said the decision ensures people can effectively use their phones to document police misconduct without fear that police will punish them if they announce they are recording.

 “Police have taken people's phones and broken them or arrested people who record,” said Schwartz, a senior staff attorney with EFF. “But as the opinion unanimously says, if the rule is that you can't record the police unless you announce to them you are recording, the result is that there will be no recording.”

 Murat Erkan, a criminal defense attorney in Andover who was not involved in the case, called any government policy criminalizing police accountability 'disturbing' in light of overwhelming evidence of pretextual police stops, racial profiling, and police brutality against people of color.

 The 1st Circuit's ruling, however, fortifies the basic right to transparency, he said.

 'The legalization of covertly recording police officers in public areas is not an attack on the police profession; it is a bulwark of liberty. And I hope, with this ruling, perhaps more officers will act as if someone is watching.'”

 This story comes from the 12/28/20 MA Lawyers Weekly; the opinion is:

 Project Veritas Action Fund v. Rollins; Martin, et al. v. Rollins