Constitutional Law

'Secret' Videos of Public Police Work Can Be Considered Criminal

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Ever since the police beating of Rodney King in 1991 made international headlines after being captured by a citizen bystander on videotape, such recordings have often played a key role in substantiating claims that authorities have abused suspects and arrestees.

However, a more than 40-year-old two-party consent law in Massachusetts has been interpreted by the state’s top court as prohibiting “secret” recording of the police, in public, by citizens using devices with audio capabilities, reports the Boston Globe.

Among those arrested in Boston on such an illegal electronic surveillance charge (it has since been dismissed) was attorney Simon Glik. A key factor in winning the dismissal of his 2007 case was the fact that he had openly used his cell phone to capture the activities of local police concerning an apparent drug suspect.

Opponents of the law, as it is being interpreted, including the American Civil Liberties Union, say such charges should never be brought in the first place. Attorney General Martha Coakley has, so far, refused to issue an opinion clarifying the parameters of the two-party consent rule, staff attorney Sarah Wunsch of the ACLU of Massachusetts tells the newspaper.

It took Jon Surmacz, a Boston University webmaster, months to win the dismissal of wiretapping and disorderly conduct charges in a similar cell phone case, with the ACLU’s help. Again, a key factor was his open use of the device to record police activities, the newspaper recounts.

“Had I recorded an officer saving someone’s life,” he says, “I almost guarantee you that they wouldn’t have come up to me and say, ‘Hey, you just recorded me saving that person’s life. You’re under arrest.’ ’’

A spokeswoman for the Boston police tells the Globe that the department trains officers about the state’s wiretapping law. But “if an individual is inappropriately interfering with an arrest that could cause harm to an officer or another individual, an officer’s primary responsibility is to ensure the safety of the situation,’’ she says.

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