Martin et al v. Evans et al

Filing 1

COMPLAINT against All Defendants Filing fee: $ 400, receipt number 0101-6182496 (Fee Status: Filing Fee paid), filed by K Eric Martin, Rene Perez. (Attachments: # 1 Civil Cover Sheet, # 2 Category Sheet)(Rossman, Jessie)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
__________________________________________
)
K. ERIC MARTIN, and
)
RENÉ PÉREZ
)
)
Plaintiffs,
)
)
v.
)
Civ. No ____________
)
WILLIAM EVANS, in his Official Capacity as
)
Police Commissioner for the City of Boston, and )
DANIEL F. CONLEY, in his Official Capacity
)
as District Attorney for Suffolk County,
)
)
Defendants.
)
__________________________________________)
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Introduction
1.

Plaintiffs are two civil rights activists in Boston who bring this suit to enforce their well-

established First Amendment right to record police officers in the public performance of their
duties. The Massachusetts Wiretap Statute, Mass. Gen. Laws ch. 272, § 99 (“Section 99”),
prohibits all secret recording, even if the person is recording a police officer and believes he
cannot safely do so in the open. Plaintiffs Eric Martin and René Pérez believe that secret
recording is sometimes the only means to safely gather and disseminate accurate information
about police actions in the community. But they have been unlawfully prevented from engaging
in this constitutionally protected activity due to a credible fear that doing so will subject them to
arrest and prosecution—by defendants William Evans, the Commissioner of the Boston Police
Department (“BPD”), and Daniel Conley, the Suffolk County District Attorney—for violating
Section 99. Plaintiffs therefore challenge the constitutionality of Section 99 as applied to prohibit
1

the secret audio recording of police officers performing their duties in public, and seek
declaratory and injunctive relief under 42 U.S.C. § 1983 and the First and Fourteenth
Amendments to the United States Constitution.
2.

The First Amendment protects the right to record government officials’ public

performance of their jobs. This constitutional safeguard preserves two core free speech interests:
promoting an informed discussion of government affairs and uncovering government
misconduct.
3.

The exercise of this First Amendment right has changed the public’s understanding of

encounters between police officers and civilians. In New York City, for example, a civilian
recording of the arrest of Eric Garner revealed that he said “I can’t breathe” eleven times while
an officer placed him in a chokehold that ultimately led to his death. A civilian recording at the
United States-Mexico border revealed Anastacio Hernandez-Rogas screamed “Ayudame”—
“Help me”—as Border Patrol agents struck him with a baton and shocked him with a Taser
before he suffered a heart attack.
4.

Consistent with the profound impact that recordings of police-civilian encounters can

have on the public, the First Circuit has held that the right to record police officers performing
their duties in public “is a basic, vital, and well-established liberty safeguarded by the First
Amendment.” Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011). The First Circuit has not limited
this holding to open recording. Thus, this constitutional protection extends to both openly and
secretly recording police officers performing their duties in public.
5.

In fact, secret recording is a key component of the First Amendment right to record police

officers performing their duties in public. It is the only way that individuals who are too afraid to
openly record police officers can exercise their constitutionally protected rights, and it is a
2

critical tool to gather accurate information about official government activity.
6.

Plaintiffs want to exercise their right to secretly record police officers performing their

duties in public. They are motivated to exercise this right because, in certain situations, they have
felt and continue to feel that openly recording police officers performing their duties in public
would be unsafe. Plaintiffs also train others in the exercise of their rights to record the police,
and they want to tell these individuals to secretly record police officers performing their duties in
public when they believe it is unsafe or unwise to openly record.
7.

Section 99 violates Plaintiffs’ exercise of this First Amendment right by criminalizing all

audio recording of police officers, or the solicitation of such recording, unless it is done openly.
It has been applied to prohibit secretly recording police officers performing their duties in public
or telling others to do so.
8.

Due to fear of arrest and prosecution under Section 99, Plaintiffs have not secretly

recorded and will not secretly record police officers performing their duties in public, and
Plaintiffs have not trained nor will they train others to do so.
9.

Plaintiffs therefore seek a declaration, under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, that

Section 99 is unconstitutional as applied to the secret recording of police officers performing
their duties in public. Plaintiffs also seek a permanent injunction in the form of an order
enjoining the defendants from applying or enforcing Section 99 against such conduct.
JURISDICTION AND VENUE
10.

This action is brought under 42 U.S.C. §§ 1983 and 1988, and the First and Fourteenth

Amendments to the United States Constitution. Jurisdiction is conferred on this Court by 28
U.S.C. §§ 1331, 1343 and 2201 et seq. Venue in the District of Massachusetts is proper under 28
U.S.C. § 1391(b).
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PARTIES
11.

Plaintiff Eric Martin is a citizen of the United States and a resident of the Jamaica Plain

neighborhood in Boston. But for his fear of arrest and prosecution under Section 99, Mr. Martin
would secretly record the police performing their duties in public and tell other individuals that
they can do so.
12.

Plaintiff René Pérez is a citizen of the United States and a resident of the Roxbury

neighborhood in Boston. But for his fear of arrest and prosecution under Section 99, Mr. Pérez
would secretly record the police performing their duties in public and tell other individuals that
they can do so.
13.

Defendant William Evans is the Police Commissioner of the City of Boston. Defendant

Evans is responsible for enforcing Massachusetts criminal laws within Boston. He is the
policymaker for the Boston Police Department. He is being sued in his official capacity as Police
Commissioner. His usual place of employment is located at 1 Schroeder Plaza, Boston,
Massachusetts 02120.
14.

Defendant Daniel Conley is the District Attorney for Suffolk County. Defendant Conley

is responsible for enforcing Massachusetts criminal laws within Suffolk County. He is being
sued in his official capacity as District Attorney. His usual place of employment is located at 1
Bullfinch Place, Boston, Massachusetts 02114.
ALLEGATIONS
I.

The Constitutional Right to Record the Police Performing Their Duties in Public
Encompasses Both Open and Secret Recording.

15.

The right to record police officers is essential to promoting the free discussion of

governmental affairs, protecting the democratic process, and uncovering police misconduct.
4

16.

Indeed, the First Circuit has held that the First Amendment “unambiguously” protects the

right to record police officers carrying out their duties in public. Glik, 655 F.3d at 82. The court
explained that this right “fits comfortably” within basic First Amendment principles both
because “gathering information about government officials in a form that can readily be
disseminated to others serves a cardinal First Amendment interest in protecting and promoting
the free discussion of governmental affairs,” and because it aids in the uncovering of official
abuses. Id. at 82–83.
17.

This right and its underlying principles fully extend to secretly recording police officers

performing their duties in public.
18.

Secret recording is necessary because police officers may change their conduct if they are

aware they are being recorded. This may prevent the public from gathering accurate information
about how police behave when they are not under scrutiny.
19.

In addition, some civilians reasonably fear that openly recording police officers in certain

circumstances could trigger a hostile response that threatens their physical safety or liberty.
20.

For example, in November 2009, BPD officers punched, pepper-sprayed and arrested a

civilian for openly recording their actions as they arrested his friend.
21.

In April 2015, a BPD sergeant threatened a civilian who was openly recording his

activities by saying “you wanna jump in the cruiser with us someday?” and waiving a gun—
which appeared real, but turned out to be fake—in his face.
22.

When civilians do not feel safe openly recording police officers, they can exercise their

First Amendment right to record police officers performing their duties in public only if they do
so secretly.

5

II.

The Right to Secretly Record Police Officers Performing Their Duties in Public Is of
Crucial Importance in Boston.

23.

Every month, there are thousands of police-civilian interactions in Boston that do not

result in formal arrests. The BPD records the justifications for such interactions in their “Field
Interrogation, Observation, Frisk and/or Search” reports, otherwise known as “FIO reports,” but
these reports typically contain little-to-no detail regarding why the police engaged with the
civilian, why the civilian was subjected to a search or frisk, or what the outcome of the encounter
was.
24.

Civilian audio recordings of encounters between BPD officers and civilians would

provide critical evidence about these interactions that are not available in any other form,
including the substance and tone of the interactions.
25.

This is particularly important given the racial disparities in who is subjected to these

interactions. Although the 2010 census indicates that only 25.1% of Boston’s population was
Black, the FIO reports reveal that Black residents were subjected to 63.3% of FIO encounters
from 2007 to 2010.
26.

These disparities have remained fairly stable over time. From 2011 to 2015, Black

residents have been the subjects of roughly 60% of all FIO encounters in Boston.
27.

Given civilian fears regarding potential police hostility towards open recording and the

possibility that openly recording these interactions may alter police behavior, secret recording is
the only way to collect accurate information about this matter of great public import.
III.

The Massachusetts Wiretap Statute Violates the Constitutional Right to Record
Police Officers Performing Their Duties in Public by Criminalizing Secret
Recording of Such Behavior.

28.

In 1968, the Massachusetts General Court passed Section 99 to criminalize secret audio
6

recording of communications.
29.

Section 99 imposes up to five years’ incarceration on “any person who willfully commits

an interception, attempts to commit an interception, or procures any other person to commit an
interception or to attempt to commit an interception” of any “communication,” where
“interception” means “to secretly hear, secretly record, or aid another to secretly hear or secretly
record.” Mass. Gen. Laws ch. 272, § 99(C)(1).
30.

Section 99 imposes the same felony liability on any person who “permits,” “participates

in a conspiracy to commit,” or serves as “an accessory to a person who commits” an interception
of a communication. Id. § 99(C)(6).
31.

Section 99 does not exempt secretly recording police officers performing their duties in

public, and it has been interpreted to “strictly” “prohibit all secret recording by members of the
public, including recordings of police officers.” Commonwealth v. Hyde, 750 N.E. 2d 963, 967
(Mass. 2001).
32.

Enforcing this interpretation, police officers in the Commonwealth regularly arrest, and

district attorneys in the Commonwealth regularly prosecute, individuals under Section 99 for
secretly recording police officers performing their duties in public.
33.

For example, in 2001, Michael Hyde was convicted of violating Section 99 for secretly

recording a traffic stop with the Abington Police Department. See Hyde, 750 N.E. 2d at 964.
34.

In 2006, Jeffrey Manzelli was convicted of violating Section 99 for recording

Massachusetts Bay Transit Authority (“MBTA”) police officers through a device in his jacket
during a demonstration, which the MBTA claimed was a secret recording. The Suffolk County
District Attorney’s Office, under the direction of Defendant Conley, prosecuted the case.
Commonwealth v. Manzelli, 864 N.E. 2d 566 (Mass. App. Ct. 2007).
7

35.

In 2010, the Hadley Police Department charged Eli Damon with violating Section 99 for

recording a traffic stop with a device attached to his bicycle helmet, which they claimed was a
secret recording. See Damon v. Hukowicz, 964 F. Supp. 2d 120 (D. Mass. 2013).
36.

In May 2014, the Chicopee Police Department charged Karen Dziewit with a violation of

Section 99 for secretly recording police officers while they were arresting her.
37.

Section 99 has also been enforced against people who encourage or instruct others how to

secretly record police officers performing their duties in public.
38.

For example, in November 2012, the Shrewsbury Police Department charged Irving

Espinosa-Rodriguez with a violation of Section 99 for allegedly instructing a female passenger
how to use a recording device so that she could secretly record his interaction with a police
officer during a traffic stop.
39.

In June 2015, the Hardwick Police Department charged Destiny McKeon as an accessory

to the crime of illegal wiretapping because she knew about, and was present during, another
individual’s secret recording of a traffic stop and did not say anything to the police officers.
IV.

The Application of Section 99 to Criminalize Secretly Recording Police Officers
Performing Their Duties in Public Has Chilled Plaintiffs’ First Amendment
Activities.

Eric Martin
40.

Eric Martin lives in Jamaica Plain and works full time for a Boston-based nonprofit

organization and soup kitchen. Mr. Martin coordinates several dozen volunteers for the
organization’s housing, urban farming, direct food services, educational programming and
transitional employment services.
41.

Mr. Martin is also a civil rights activist who regularly participates in political

demonstrations throughout Boston and was active in Boston Cop Watch.
8

42.

During his personal, professional and volunteer activities, Mr. Martin frequently sees

BPD police officers on the street.
43.

About once a week, he openly records BPD police officers performing their public duties

when there are other people around.
44.

Mr. Martin knows that there is a First Amendment right to record police officers

performing their duties in public, but he believes that openly exercising this right might trigger a
retaliatory action by a police officer.
45.

Mr. Martin learned that Section 99 criminalizes secretly recording police officers

performing their public duties from his own research and from Cop Watch trainings that he
attended.
46.

Mr. Martin has wanted to secretly record BPD police officers performing their duties in

public about once a month, and he wants to do so in the future.
47.

However, he has not done so, and will continue to refrain from doing so, because he is

afraid that he will get arrested or prosecuted for violating Section 99.
48.

For instance, Mr. Martin wants to secretly record BPD police officers performing their

public duties when he is alone because he does not feel safe openly recording police officers in
such instances.
49.

Although he believes that open recording can be a powerful tool in a crowd, he is scared

to openly record a police officer when there is no one else around due to potential retaliation.
50.

Mr. Martin was frightened by the April 2015 video of a BPD officer waving what

appeared at the time to be a real gun in the face of a civilian who was openly recording the police
officer’s activities.
51.

This fear has been reinforced by Mr. Martin’s personal experiences. In a dozen years, Mr.
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Martin has been stopped nearly a dozen times by police officers.
52.

In 2005, Mr. Martin was walking home at night in Colorado when several police cars

pealed out of an alley and surrounded him. A crowd of police officers pulled their guns and
slammed Mr. Martin onto the hood of a car. Claiming that he matched the description that they
had received of a dark male in a light shirt, the officers searched his pockets, as well as the front
and back of his pants. Mr. Martin was later allowed to leave when they realized he was not their
suspect.
53.

This was a life-changing event for Mr. Martin. He was disturbed that police officers

might focus only on whether his skin color matched that of the suspect for whom they were
looking, and terrified by the realization that one scared move could have cost him his life.
54.

Mr. Martin has also learned firsthand that openly recording BPD officers can have

adverse consequences.
55.

In December 2011, Mr. Martin was participating in and photographing the Occupy

Boston political demonstrations. A BPD police officer shoved him to the ground, yelled at him to
stop taking pictures and instructed Mr. Martin that he was under arrest for taking his picture. It
was only after a supervisor ultimately intervened that Mr. Martin was told he was free to go.
56.

Based on his experiences, Mr. Martin does not feel safe openly recording police officers

when he is alone. But for his fear of being arrested or prosecuted for violating Section 99, he
would have secretly recorded such encounters with the police in the past and would do so in the
future.
57.

Mr. Martin also wants to secretly record police officers performing their duties in public

to hold them accountable for their behavior.
58.

Mr. Martin knows that the BPD is disproportionately stopping Black and Hispanic people
10

in Boston. Moreover, he knows that their FIO forms are often error prone and vague with respect
to the underlying justifications for these stops. He believes that secret recording is a way to
create an accurate narrative of police behavior during such interactions.
59.

In addition, Mr. Martin frequently sees BPD officers in the Downtown Crossing area

speaking to homeless individuals. He is concerned about these interactions and the ways in
which the homeless population is treated by BPD officers.
60.

But for his fear of being arrested or prosecuted for violating Section 99, Mr. Martin

would have secretly recorded these interactions to create an accurate record of them, and he
would do so in similar situations in the future.
61.

In addition to recording police officers himself, Mr. Martin organizes and co-teaches

Know Your Rights trainings about recording the police for other interested individuals.
62.

Over the past year, he has organized or co-taught four formal training sessions and has

also provided information about recording the police to many community members on an
informal basis. He plans to continue both formal and informal trainings in the future.
63.

Mr. Martin’s training emphasizes the need to protect one’s own physical safety. He

explains that, even though there is a First Amendment right to record police officers performing
their duties in public, openly exercising this right can still trigger a hostile response from an
officer.
64.

Mr. Martin would like to instruct individuals that they should secretly exercise this right

when they are on their own or in another situation in which they feel unsafe openly recording,
but because of his fear of arrest or prosecution for violating Section 99, Mr. Martin has told
individuals not to record if they do not feel safe openly recording a police officer.
65.

But for this same fear, Mr. Martin would tell individuals in the future that they can
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secretly record police officers performing their duties in public.
René Pérez
66.

René Pérez lives in Roxbury and works in downtown Boston. He is also a civil rights

activist who regularly participates in demonstrations throughout Boston.
67.

Mr. Pérez sees BPD police officers on the street and openly records them performing

their duties in public during demonstrations.
68.

Mr. Pérez knows that there is a First Amendment right to record police officers

performing their duties in public, but he believes that openly exercising this right can still trigger
an adverse reaction by a police officer.
69.

Mr. Pérez has learned from the news and other activists that Section 99 criminalizes

secretly recording police officers performing their duties in public.
70.

Mr. Pérez has wanted to secretly record BPD police officers performing their duties in

public on numerous occasions, and he wants to do so in the future.
71.

However, he has not done so, and will continue to refrain from doing so, because he is

afraid that he will be arrested or prosecuted for violating Section 99.
72.

For instance, Mr. Pérez wants to secretly record BPD police officers during traffic stops

when he is alone because he does not feel safe doing so openly.
73.

Mr. Pérez grew up in Texas, where he was taught by his father and his cousin—who is a

sheriff—to fear the police.
74.

Mr. Pérez was pulled over several times while driving through Texas. In each instance,

the first thing the police officer did was to yell at him to get out of the car. If he protested, he was
told to shut up. These were such terrifying experiences that he now avoids driving in Texas as
much as he can.
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75.

Mr. Pérez has also been pulled over several times in Boston. While these experiences

have been different from those in Texas, he has still been afraid because he knows things can go
badly very quickly.
76.

Mr. Pérez is afraid to openly record these interactions because has learned that openly

recording a BPD police officer can trigger a hostile response that threatens his physical safety.
77.

For example, Mr. Pérez was openly recording a protest against the Syrian invasion on the

street outside of Secretary of State John Kerry’s house several years ago. The demonstration had
ended, and Mr. Pérez continued to openly record a police officer’s interactions with the
remaining protesters.
78.

A BPD police officer became incensed when he noticed that Mr. Pérez was recording. He

got in Mr. Pérez’s face, screamed at him and grabbed his recording device. This terrified Mr.
Pérez.
79.

Based on these experiences, Mr. Pérez does not feel safe openly recording BPD police

officers during a traffic stop when he is on his own. But for his fear of being arrested or
prosecuted for violating Section 99, he would have secretly recorded these encounters in the past
and would do so in the future.
80.

Mr. Pérez also believes that secret recording is sometimes the only way to accurately

capture police officers’ behavior.
81.

On multiple occasions, police officers have disrupted Mr. Pérez’s open recording and

interrupted his ability to exercise his constitutional right to record police officers performing
their duties in public.
82.

As described above, a BPD police officer previously ended Mr. Pérez’s open recording of

police-civilian interactions.
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83.

In addition, a police officer prevented Mr. Pérez’s ability to record a demonstration in

Chicago several years ago. Mr. Pérez was openly recording the demonstration when a police
officer struck his hand with a baton, causing his phone to fall to the ground.
84.

Based on these experiences, Mr. Pérez believes there are times where he cannot openly

exercise his right to record police officers performing their duties in public without disruption
from the police. But for his fear of being arrested or prosecuted for violating Section 99, he
would have secretly recorded these encounters in the past and would do so in the future.
85.

In addition to recording police officers himself, Mr. Pérez co-teaches Know Your Rights

trainings about recording the police for other interested individuals.
86.

Over the past year, he has co-taught two trainings, and has also provided information

about recording the police to many activists on an informal basis. He plans to continue both
formal and informal trainings in the future.
87.

A common question Mr. Pérez hears is what individuals can do when they encounter a

police officer on their own.
88.

Based on his own experiences, Mr. Pérez recognizes that individuals may feel vulnerable

when they are alone with a police officer and that open recording in such a situation may
antagonize the police officer. He would like to tell such individuals that they could secretly
record in these situations. But, because of his fear of arrest or prosecution for violating Section
99, Mr. Pérez has not done so.
89.

But for this same fear, Mr. Pérez would tell individuals in the future that they can secretly

record police officers performing their duties in public.

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V.

Plaintiffs’ Fears Are Reasonable Given the Suffolk County District Attorney’s and
the Boston Police Department’s Policies to Enforce Section 99 Against Individuals
Who Secretly Record the Police Conducting their Duties in Public.

90.

Plaintiffs’ fears are reasonable because the Suffolk County District Attorney enforces

Section 99 to prohibit the secret audio recording of police officers performing their duties in
public.
91.

In 2006, the Suffolk County District Attorney prosecuted Jeffrey Manzelli for recording

police officers through a device in his jacket during a demonstration—which the police claimed
was a secret recording—and successfully defended the conviction on appeal. Manzelli, 864 N.E.
2d 566 .
92.

Plaintiffs’ fears are reasonable because the BPD also enforces Section 99 to prohibit the

secret audio recording of police officers performing their duties in public.
93.

BPD’s official training materials instruct officers that they may arrest and seek charges

against private individuals who secretly record police officers performing their duties in public.
94.

In 2010, the Boston Police Academy issued Training Bulletin 15-10 (“the Bulletin”) to

educate police officers about BPD’s policy of enforcing Section 99 against individuals who
secretly record police officers performing their duties in public.
95.

The Bulletin explains that Section 99 “is designed to prohibit secret recordings of oral

communications.”
96.

Explaining that the term interception “means to secretly hear or record or aid another to

secretly hear or secretly record,” (emphasis in original), the Bulletin instructs police officers that
they have a “right of arrest” whenever a person “[w]illfully commits an interception OR
[a]ttempts to commit an interception OR [p]rocures another person to commit an interception or
attempt to commit an interception” in the presence of an officer or if the officer has probable
15

cause to believe a person has committed such an offense.
97.

The Bulletin goes on to detail two Massachusetts cases in which the defendants were

convicted for secretly recording the police performing their duties in public.
98.

The Bulletin demonstrates BPD’s policy to enforce Section 99 against private individuals

who secretly record police officers performing their duties in public.
99.

On information and belief, the Bulletin still remains in effect.

100.

In 2010, the BPD also issued a training video (“the Video”) instructing police officers

that they could arrest private individuals who secretly recorded police officers performing their
duties in public.
101.

The Video was shown at all Boston Police Academy trainings and rolls calls and was

available in the Boston Police Department’s “e-learning program.”
102.

The Video tells officers that Section 99 “specifically prohibited all secret recordings by

members of [the] public, including recordings of police officers,” and goes on to depict two
fictional scenarios.
103.

In the first, a bystander openly records a police-civilian encounter. The Video explains

that this behavior does not violate Section 99.
104.

In the second, a driver secretly records his own interactions with the police during a

traffic stop.
105.

The Video instructs officers that the driver violated Section 99 and that the police could

“take charges out against” him for secretly recording the police.
106.

Mr. Martin has suffered ongoing irreparable injury because he reasonably fears that he

will be arrested or prosecuted if he secretly records police officers performing their duties in
public or informs other individuals of their right to do so. As a result, the Suffolk County District
16

Attorney’s and the BPD’s application of Section 99 to criminalize the secret recording of police
officers performing their duties in public has unconstitutionally chilled, and will continue to
chill, Mr. Martin’s First Amendment rights.
107.

Mr. Pérez has suffered ongoing irreparable injury because he reasonably fears that he will

be arrested or prosecuted if he secretly records police officers performing their duties in public or
informs other individuals of their right to do so. As a result, the Suffolk County District
Attorney’s and the BPD’s application of Section 99 to criminalize the secret recording of police
officers performing their duties in public has unconstitutionally chilled, and will continue to
chill, Mr. Pérez’s First Amendment rights.
Claim for Relief:
Violation of the First and Fourteenth Amendments (42 U.S.C. § 1983)
108.

Plaintiffs repeat and incorporate by reference the foregoing paragraphs of this Complaint

as if fully set forth herein.
109.

The First Amendment to the United States Constitution, as applicable to the states

through the Fourteenth Amendment, prohibits the making of any law that “abridg[es] the
freedom of speech.” The Fourteenth Amendment also guarantees due process and prohibits states
from denying to any person “the equal protection of the laws.”
110.

Under the First Amendment, Plaintiffs have a right to gather information about the

conduct of public officials, and are secure in this right against interference by the government of
the Commonwealth.
111.

Section 99, as applied to secretly recording police officers engaged in their official duties

in public places, violates the First Amendment by causing Plaintiffs to refrain from
constitutionally protected information gathering.
17

112.

Section 99, as so applied, further violates the First Amendment by causing Plaintiffs to

refrain from constitutionally protected speech and information gathering, in the form of training,
encouraging, or aiding other individuals to secretly record police conduct in public.
113.

By acting and threatening to act under the color of state law to deprive Plaintiffs of rights

guaranteed by the First Amendment and the Fourteenth Amendment, Defendants have violated
and continue to violate Plaintiffs’ First and Fourteenth Amendment rights, actionable under 42
U.S.C. § 1983.
114.

Plaintiffs have no adequate remedy available at law.
PRAYER FOR RELIEF

WHEREFORE, Plaintiffs seek an order and judgment:
1.

declaring that the prohibition on secret recording under Mass. Gen. Laws ch. 272, § 99 is

unconstitutional as applied to recording police officers engaged in their official duties while in
public places, because it violates the First Amendment to the United States Constitution;
2.

permanently enjoining Defendant Evans from training, directing, authorizing, permitting,

or otherwise causing Boston police officers to arrest or charge Plaintiffs or others for secretly
recording police officers engaged in their official duties while in public places;
3.

permanently enjoining Defendant Conley from prosecuting, or permitting any employee

or agent of the Suffolk County District Attorney’s office to prosecute, Plaintiffs or others for
secretly recording police officers engaged in their official duties while in public places;
4.

awarding to Plaintiffs costs and attorneys’ fees under 42 U.S.C. §§ 1983 and 1988; and

5.

providing such other and further relief as the Court may deem just and proper.

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Respectfully submitted,
Plaintiff, K. ERIC MARTIN
Plaintiff, RENÉ PÉREZ
By their attorneys,
/s/ Jessie J. Rossman
Matthew R. Segal, BBO #654489
Sarah Wunsch, BBO #548767
Jessie J. Rossman, BBO #670685
ACLU Foundation of Massachusetts
211 Congress Street
Boston, MA 02110
617-482-3170 x 337
[e-mail]

Dated: June 30, 2016

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