The Kickham Comment - Boston Criminal Attorney Blog
A funny thing happened on the way to the Common in 2007.
It seems that one Simon Glik, 33, was walking along Tremont Street next to the Boston Common on October 1 2007, when he observed three (yes, three) uniformed Boston police officers arresting another man, and using considerable force. Glick, a law student at the time and now (perhaps no surprise,) a criminal defense attorney, heard another man shouting “You are hurting him, stop!” at the officers. Thinking that he was witnessing three police officers brutalize the man who was being arrested, Glick used his cell phone to video record the event. When these officers saw Glick recording them on video, they arrested him. For what? For violating, they alleged, the Massachusetts wiretap law – Mass. Gen. Laws Ch. 272, § 99. The “wiretapping statute” criminalizes the “interception of wire and oral communications” and defines “interception” as the secret recording of the contents of a communication, without the permission of all parties to the communication. The staute provides that persons violating the law may be punished by a fine of up to $10,000, or imprisoned for up to five years, or both. Massachusetts is among the minority of states that prohibit recording a conversation without the permission of all parties involved. In this area of law, Massachusetts is known as a so-called “two-party consent” state, meaning both parties to a phone conversation or otherwise private meeting must be informed of, and consent to, audio recording of the conversation, in order for that recording to be legal. It was (and is) designed to prevent someone from secretly audio taping a phone conversation, or secretly audio taping a meeting being held.
Not surprisingly, the case was later dismissed, particularly due to the fact that there was no “secret” recording of this event. Notwithstanding, it seems obvious (at least to me, as a Boston criminal defense lawyer,) what these officers were trying to cover up: The fact that they were using excessive force in arresting the first man, which Glick (and at least one other observer – the man who yelled out “Stop, you are hurting him!”) had witnessed. As a Massachusetts criminal defense attorney who has defended cases from assault and battery to drug offenses and sexual offenses, I can only imagine the reaction of the Assistant DA in the Suffolk County District Attorney’s office who ended up being the recipient of this case (“These cops expect me to prosecute for this? It’ll be thrown out in a second.”) As I said, this statute was intended exclusively to prevent hidden, covert audio recordings of phone conversations or otherwise private meetings – not video recording of public events. Without doubt, these officers saw themselves getting caught in the act of police brutality, and then made things even worse by arresting Glick on this essentially baselss charge.
But the story isn’t over. Now, the American Civil Liberties Union of Massachusetts has filed a civil rights lawsuit against the city of Boston and these three officers for violating Glick’s First Amendment rights to free speech and his Fourth Amendment right to be free from arrest without probable cause. I thoroughly agree with both of these allegations. From all apparent indications, this case is a flagrant example of abusive police conduct, not only against the first man being arrested, but against Glick, also. Howard Friedman, an attorney working with the ACLU to represent Glick, commented, “Just because these police officers were unhappy about being recorded, doesn’t allow them to make an arrest. If a person is standing, as Mr. Glick was, many feet away and simply recording, that’s not a crime.”
A spokesman for the Boston Police Department declined to comment. Mayor Thomas M. Menino’s office also had no comment. No surprises there. I said I could easily imagine the reaction of the Assistant district Attorney who had the unfortunate luck to be handed this case, and I can also easily imagine the reaction of the corporation counsel for the city of Boston, upon hearing of this case: “We’d better settle this one.” In the interests of fair reporting and equal time, let’s take a look at the police union’s response. Thomas J. Nee, president of the Boston Police Patrolmen’s Association, said: “There is no problem with photographing or videotaping, but when it comes to conversations, police officers need a warrant or permission, and, as police officers, we are entitled to the same rights as every citizen of the Commonwealth to be free from surreptitious recording of our voices. It’s a protected activity.”
Sorry, Mr. Nee – no, openly (vs, secretly) video taping public events isn’t “protected activity”. You need to speak with your lawyer, again. This statute applies only to voices recorded without the consent of the other party, over a phone or otherwise during a private meeting. It does not apply to public places or public events, and the legislative intent behind this law is clear. While there have been cases producing some convictions in tis area of law, they don’t quite match the fact pattern in this case – particularly the non-secret nature of the video recording involved here.
It’s unfortunate when something like this happens, because it undermines public confidence in the good work that most police officers do. Even though, as a Norfolk County criminal defense attorney, I work from the opposite side of the aisle with police and prosecutors, I know that the vast majority of police officers are hard-working, ethical people. Bad apples, such as appears to be the case with these officers in this case, give good police a bad name.