Pacific Standard spoke with Camille Fassett, a researcher with Lucy Parsons Labs, about the OpenOversight program—a public database indexing law enforcement officers by name, photo, incidents, and more.
OpenOversight is deceptively simple. Anyone trying to identify a police officer can log on to the website, select the police department or federal agency, enter as much or as little of the officer’s last name and badge number as they remember, choose the officer’s rank if they know it, and enter the approximate race, gender, and age. That query searches a database of law enforcement, producing not only names, badge numbers, and identifying features, but photos and incidents too: Officer Jason D. Van Dyke of the Chicago Police Department, badge number 9465, shot and killed Laquan McDonald in October of 2014; Officer Nicole M. Rhodes of the Oakland Police Department, badge number 736, shot and killed Demouria Hogg in June of 2015; Officer Sean Aranas of the University of California Police Department, badge number 76, allegedly extorted a hot dog vendor in September of 2017.
The project isn’t perfect. Of the 684,200 patrol officers in the United States, only 12,900 have been added to OpenOversight. Some of those profiles are limited to names, badge numbers, and ranks, and just 5 percent include photos. Only five police departments—Berkeley, Chicago, New York, Oakland, and the University of California—are included, along with two federal agencies—Customs and Border Protection, and Immigration and Customs Enforcement. And, as can be seen from the examples above, only high-profile incidents are currently catalogued.
Yet OpenOversight appears to have struck a nerve. Shortly after launching in 2016, the project became the target of spammers at the encouragement of an anonymous police blog. The president of the Chicago Fraternal Order of Police has also repeatedly claimed that it endangers police officers by making them identifiable.
But accountability is exactly what Lucy Parsons Labs, the non-profit organization behind OpenOversight, hopes to achieve with this project. Pacific Standard spoke with Camille Fassett, a researcher with Lucy Parsons Labs, about OpenOversight’s reception and its future.
What was the genesis of OpenOversight?
Back in 2016, someone that Lucy Parsons Labs knew in Chicago was assaulted by a police officer. She didn’t get his name or badge number, and for big police departments like Chicago, which has over 12,000 members, this information is critical for identifying officers; in a four-year period, approximately 4,000 complaints were tossed out due to investigators being unable to identify an officer.
She said something that really stuck with us: She said that she would recognize his face if she ever saw him again. So initially OpenOversight was developed to be a digital gallery of photos of police officers. That way, if someone wanted to identify an officer, they could input whatever they remembered, like race and sex and approximate age, and get back a list of possible faces.
Chicago police are investigating allegations that the officer who fatally shot two people in an on-duty incident in 2015 got into an early morning bar fight last month, a department spokesman confirmed Friday.
Officer Robert Rialmo is alleged to have hit two men in the face with a closed fist about 2:45 a.m. on Dec. 17 at Moretti’s Ristorante & Pizzeria, a sprawling restaurant and bar in the Edison Park neighborhood on the far Northwest Side, according to department spokesman Anthony Guglielmi as well as a police report. One victim suffered bruises, the report said.
By the time police arrived, Rialmo was gone, Guglielmi said.
Days after the alleged incident, department officials stripped Rialmo of his police powers, Guglielmi said. He had already been on paid desk duty because of the investigation into the fatal shooting of Quintonio LeGrier, 19, who was clutching a baseball bat, and Bettie Jones, 55, an innocent bystander, the day after Christmas in 2015.
Rialmo had not been arrested or charged in the alleged bar fight as of Friday evening.
Meanwhile, the Civilian Office of Police Accountability, which investigates police misconduct allegations, is looking into whether Rialmo might have violated department policy, according to agency records.
The disciplinary agency recently presented evidence in the case to the Cook County state’s attorney’s office before referring the matter to the Police Department, which began an investigation less than a week ago, Guglielmi said.
Tandra Simonton, a spokeswoman for the state’s attorney’s office, declined to comment.
Rialmo’s attorney, Joel Brodsky, called the off-duty incident a “shoving match,” saying two men tried to take Rialmo’s coat at closing time.
A “fair investigation” should result in no charges, Brodsky said in a written statement.
“Nobody requested medical attention, there were no injuries, the men refused to cooperate with the police, and no charges were brought,” Brodsky wrote. “Without complaining witnesses, there is no reason for any criminal investigation.”
Rialmo, a five-year department veteran, could not be reached for comment.
The alleged bar fight came five days before disciplinary authorities ruled that Rialmo unjustifiably shot LeGrier and Jones while responding to a domestic disturbance on the West Side. After LeGrier came at officers with an aluminum baseball bat in his hand, Rialmo shot the teen and accidentally hit Jones, a neighbor standing nearby.
But COPA cast doubt on Rialmo’s account of those events and determined that the evidence indicated that LeGrier did not swing the bat at the officer, as Rialmo said. Investigators also concluded that LeGrier likely was further away from from Rialmo when he opened fire than the officer has said.
COPA has recommended that Rialmo be fired for the shooting, and Superintendent Eddie Johnson has about three months to decide what, if any, discipline he might seek from the Chicago Police Board.
Brodsky has said the facts support his client’s statements that he fired in fear for his life because LeGrier could have hit him with the bat, whether or not he swung it. The COPA ruling was politically motivated, Brodsky contends.
Rialmo’s union, the Chicago Fraternal Order of Police, has also decried the ruling and instructed its attorneys to explore a legal challenge, according to a statement.
Union President Kevin Graham told the Tribune on Friday he does not believe COPA is capable of fairly investigating officers and that it is using the alleged bar fight to support its recommended firing of Rialmo for the fatal shooting.
“This is a move to put pressure on the Police Department and specifically Superintendent Eddie Johnson to have an unfavorable ruling on Officer Rialmo” for the shooting, Graham said.
COPA officials could not be reached for comment.
The alleged bar fight adds another unexpected twist to the aftermath of a shooting that has been marked by unusual litigation and embarrassing blunders by the city.
The shooting attracted wide notice in part because it was the first fatal police shooting after the court-ordered release of video of a white officer, Jason Van Dyke, shooting African-American teen Laquan McDonald 16 times. The video’s release in November 2015 sparked calls for Mayor Rahm Emanuel’s resignation, and black Chicagoans aired volumes of complaints about their treatment by police. Efforts to overhaul the department continue more than two years later.
About 4:30 a.m. on the day after Christmas 2015, Rialmo and his partner responded to 911 calls about a domestic disturbance at the apartment in the 4700 block of West Erie Street, where LeGrier was staying with his father. LeGrier had behaved strangely as a student at Northern Illinois University and had altercations with other students and run-ins with police, records show. LeGrier’s apparent mental health problems have been a key issue in the litigation that followed his death.
Jones, who lived downstairs, answered the door and pointed police to the second floor. LeGrier then came down the stairs with a bat, according to an analysis released in February by Cook County State’s Attorney Kim Foxx’s office, which declined to bring criminal charges against Rialmo. The officers started to move backward onto the front landing as LeGrier came at them with the bat, prosecutors wrote. As Rialmo backed down the stairs, he fired eight times, hitting LeGrier six times, according to prosecutors. Jones, who stood behind the teen during the incident, was shot once in the chest, prosecutors wrote.
Brodsky has said his client was justified in firing in self-defense, but COPA investigators voiced doubts about Rialmo’s sometimes conflicting accounts. COPA found that no one corroborated the officer’s contention that LeGrier swung the bat, while investigators concluded that the evidence suggested that Rialmo was several feet further from the teen when he opened fire than the officer had said he was.
Numerous lawsuits are pending. The survivors of both LeGrier and Jones sued Rialmo and the city. Rialmo took the unusual step of suing the city, alleging in part that he was inadequately trained. Rialmo is also suing LeGrier’s estate, blaming him for the shooting and contending it emotionally traumatized the officer.
Then, three weeks ago, the city’s lawyers filed a lawsuit that sought to shift blame and some financial liability for Jones’ death from the city onto LeGrier’s estate. The Tribune reported on the lawsuit a few hours after it was filed. The city’s lawyers quickly dropped the suit, and Emanuel apologized, saying he did not know of the litigation beforehand but found it “callous.”
Jean-Michel Basquiat’s 1983 painting “Defacement (The Death of Michael Stewart)” was inspired by an early-morning encounter that Michael Stewart, 25, had with NYPD. Stewart was accused of spraying graffiti at a First Avenue subway station in the East Village. It was here where Stewart was kicked and beaten by as many as 11 police officers. “About 45 minutes later he arrived bruised, bleeding and comatose at Bellevue Hospital. …He died 13 days later without regaining consciousness.”
Six white cops were eventually charged for the violence. All six cops were acquitted.
Fast-forward 35 years and Basquiat’s interpretation of the brutality is at the center of the Guggenheim’s “Basquiat’s ‘Defacement’: The Untold Story” (June 21-Nov. 6, 2019). “[It] will explore a formative chapter in the artist’s career through the lens of his identity and the role of cultural activism in New York City during the early 1980s” and “examine Basquiat’s exploration of Black identity, his protest against police brutality, and his attempts to craft a singular aesthetic language of empowerment.”
According to CultureType, the painting (originally painted directly on the wall of Keith Haring’s studio) was never meant for public consumption and has rarely been exhibited, which makes its appearance at the Guggenheim, of all places, a bit ironic.
Yakima Police Department. (DONALD W. MEYERS/Yakima Herald-Republic)
Despite accepting a $500,000 settlement, the sister of a man shot and killed by a Yakima police officer in 2014 is disappointed the city of Yakima continues to not allow citizens a voice in improving police practices.
Among other requests in the suit, Lorena Arias wanted Yakima to establish a citizen review committee to investigate and discipline police officers for misconduct against citizens. If that wasn’t possible, Arias suggested allowing the U.S. Department of Justice or another outside agency to monitor the department’s training practices for five years.
But in paying out the half-million-dollar settlement, the city refused to consider Arias’ suggestions, demonstrating its disregard for the input of citizens in these types of cases, her attorney said.
“My experience with the city of Yakima is, after a long, scorched earth case, they make an excuse and deny the claim and pretend like their officers did everything correct,” said Yakima attorney Bill Pickett. “But they will ultimately move to a mediator and that person will sit down with both parties and try to come up with a resolution. I suspect they’ll continue to claim they did everything right, but yet they’ll pay half a million dollars. So I’ll let that speak for itself.”
City Attorney Jeff Cutter pointed out the Arias family could have not settled the case and continued to insist on the establishment of a citizen review committee, if that and other provisions were important. The settlement, approved by the Yakima City Council on Tuesday, was mutually agreed upon, he said.
The settlement — and fallout from it — highlight the controversy behind citizen review committees, or boards, that are generally well-received by citizens and advocates but typically not favorably viewed by police officers or their unions.
Citizen review committees first rose to popularity in the 1990s in response to increased police brutality, said Central Washington University law and justice professor Charles Reasons. The committees usually are comprised of residents who review complaints against police and offer a recommendation or a ruling on the complaint depending on their level of authority.
“Their major function is to give (citizens) some degree of separate authority … rather than the police policing themselves,” Reasons said. “Allowing the public to have some involvement makes them happier … and enhances the image of police.”
Reasons estimates more than 80 percent of major cities have some form of civilian review, but the number falls drastically when talking about smaller cities similar to Yakima — he couldn’t name any in the state or nationwide offhand.
“There hasn’t been the political movement and interest groups that have been successful in establishing them in smaller cities,” he said.
In the Arias case, a committee likely wouldn’t have helped much — that’s because very few, if any, citizen review committees evaluate officer-involved shootings, Reasons said.
But Arias, in her case, maintains a citizen review committee would have provided an unbiased, truthful assessment of the case. Rocendo Arias, 23, was fatally shot during a late-night encounter with a Yakima police officer in January 2014. The shooting was ruled justified but questions remain whether the officer told the truth about the shooting.
While the family ultimately agreed to the settlement — in an effort to put the painful episode behind them — that acceptance should not be misconstrued as a lack of interest in seeing the city make policy changes that could eliminate, or decrease, future similar instances.
Yakima Police Chief Dominic Rizzi Jr. said he’s open to the potential of establishing a citizen review committee. But, Rizzi said, such a committee likely isn’t needed due to Washington’s public records laws, which are favorable to citizens. State law allows citizens access to department documents involved in shootings, allowing them — and the media — to do their own semi-investigation and hold police accountable, he said.
“The public has the ability to scrutinize everything we do,” Rizzi said. “And the media gets ahold of everything and scrutinizes what we do. In a sense, we already have public oversight.”
While Washington state law does allow citizens access to many public records, there are restrictions. Often, those restrictions allow government agencies, including law enforcement, to deny access to records. Some of the reasons for those denials include if an investigation is open or if there is pending litigation.
Rizzi said the department is working with other area law enforcement agencies to create a special incident response team for officer-involved shootings.
Local agencies would be able — but not required — to request that the team investigate its officer-involved shootings. Among many benefits, the team, which would have a Sunnyside police captain at the helm, would help agencies better manage manpower resources devoted to investigations, which can be time-consuming and keep detectives from focusing on other work.
“That’s something that’s going to work out well and it’s good for the face of law enforcement and transparency,” said Rizzi, who noted a launch date for the team hasn’t been announced.
Captain Mark Gagan (left) and Lieutenant Bisa French watch as a gunshot incident is recorded on one of their Shotspotter stations.
A Richmond police captain with more than two decades on the force was fired a day before Thanksgiving in connection with a misconduct investigation.
The termination of Capt. Mark Gagan on Nov. 22 reportedly came after Councilman Eduardo Martinez complained of a leaked police report that became the subject of an KGO-TV story questioning Martinez’s sobriety during a reported robbery.
The television report in November 2016 said that a Richmond Police Department report suggested Martinez “may have been under the influence of alcohol when he drove a city vehicle from the crime scene to a nearby hotel.”
Martinez, who was coming from a Chamber of Commerce event, said in the TV report that while he drank alcohol the night he was robbed, he “was not incoherent.”
The councilman said he lost his phone during the incident and drove a city car to the nearest place to call police. Martinez did not return calls from The Chronicle.
The department investigated the alleged leak of the police report to the television station. Gagan was accused of lying during questioning.
“I told the truth. I’ve told the truth in all the interviews, and I have not lied,” Gagan said Friday. “For me to be accused of that is devastating. I’m so sure that when this is reviewed by an objective body, it will be overturned.”
Gagan’s attorney, Paul Bird, would not comment on the investigation so as not to “jeopardize the appeals process,” but said he and Gagan “strongly deny” any allegations that led to Gagan’s firing.
“He’s a 23-year veteran. He loved his job,” Bird said. “We’re going to fight to get his job back.”
Bird said they will present their case to the city and appeal the termination decision.
Neither the city nor the Police Department would confirm the details or the origin of the investigation.
“The investigation is still open, and due to the nature of it being a personnel matter, we cannot discuss it,” Lt. Felix Tan, a department spokesman, wrote in an email.
The Chronicle obtained a copy of the city’s termination letter sent to Gagan on Nov. 22.
Gagan and his attorney met with Police Chief Allwyn Brown Nov. 7 to present Gagan’s side, according to the letter.
Brown “determined that the proposed termination of employment is appropriate,” the letter read.
The robbery reportedly tied to the misconduct investigation occurred Oct. 26, 2016. Police initially reported a “member of the Richmond City Council” met with officers shortly after 9:45 p.m. after he was robbed by someone with a pistol.
Officers later tracked down the suspect, whose name was not released. He was charged in connection with the incident five days later.
§ 14141. Cause of action (re-codified at 34 U.S.C. 12601)
(a) Unlawful conduct
It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
(b) Civil action by Attorney General
Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
Defense attorneys and the state Public Defender’s Office say the unprecedented release of police use-of-force data in New Jersey could significantly bolster the rights of defendants who for years have had the odds stacked against them in court.
In the wake of The Force Report, a 16-month investigation of police use of force by NJ Advance Media for NJ.com, the attorneys said they have been strategizing over how they could use the data to gain more access to police personnel records in their cases.
“Until (NJ Advance Media) published (its) work, there was no resource like this available,” said Sharon Bittner Kean, president of the Association of Criminal Defense Attorneys of New Jersey. “We’re delighted to have a tool that could bolster the rights of defendants.”
The investigation found that while the majority of police officers in the state barely used force at all, many departments had individuals who did so far more than their peers. The data revealed that multiple officers who were charged with brutalizing suspects and other types of misconduct would have raised red flags had a system been in place to track use of force trends.
The entire database is now available to the public at NJ.com/force.
The attorneys said that accessing police records can be difficult during discovery. They said cannot request a police officer’s entire disciplinary record when they can’t present proof that there’s anything relevant to the case in it. With the newly released data, they said they may now have a basis to request and receive more documentation.
“A lot of people think we can just go into court, ask and a prosecutor just hands it over. That’s not how it works,” said Jennifer Sellitti, director of training and communications for the New Jersey Office of the Public Defender. “Now we can use statistics to support our argument. We can say we know this exists. That gives us something we can put into a motion.”
Bittner-Kean said the defense attorney association plans to discuss The Force Report at its next board meeting and brainstorm how to use it in court. Sellitti said attorneys working for the Public Defender’s office already have been combing through the database, and the office has been crackling with excitement at the possibilities it presents.
“This is something we’ve been discussing for a long time, and (NJ Advance Media) just stepped on the accelerator for everyone,” she said.
Sellitti also believes the newly released use-of-force data could prove valuable in other aspects of criminal litigation, such as reinforcing the prosecution’s requirement to turn over evidence that may be favorable to the defense.
“It adds some teeth to what we’re asking prosecutors for,” she said.
Matthew Troiano, a defense attorney who spent years as a prosecutor for Hudson and Morris counties, said the database removed barriers to learning about an officer’s history.
That could especially impact cases where an officer’s testimony conflicted with the testimony of someone he or she had arrested, Troiano said, because the differing accounts could be more easily compared to that cop’s past arrests.
“In that type of situation, it’d be extremely helpful,” Troiano said.
To build The Force Report, reporters filed 506 public records requests, collected 72,609 paper records and spent more than $30,000 to create the most comprehensive statewide database of police force in the United States. The records — spanning 2012 through 2016, the most recent year available — cover every municipal police department and the State Police
Terence Jones, a civil rights investigator, said he hopes The Force Report will prompt state Attorney General Gurbir Grewal to push for more transparency in policing data and enact reforms that will allow for greater accountability.
“I think it’s an embarrassment that you have to have a news organization do the work of these agencies,” he said. “The police have proved they cannot police themselves. And right now, you have county prosecutors acting as if they are the personal lawyers of the police. The state is supposed to represent the people.”
Police officers are sworn to uphold the law. When the uniform goes on, they become arbiters and enforcers of right and wrong. But a new police crime database reveals an important and often overlooked aspect of the job: Police officers are people first, cops second. And people sometimes commit crimes.
The database, compiled by Philip Stinson, tracks how often police officers are arrested. Stinson, a former cop and now an associate professor of criminal justice at Bowling Green State University in Ohio, gathered data on arrests of police officers from 2005 to 2012. Stinson’s data are limited to 2,830 state, local, and special law enforcement agencies out of about 18,000 across the country, but nevertheless provide valuable insights. Police crime is not as rare as the average person might think.
According to Vice News, Stinson’s data show 8,006 arrest incidents resulting in 13,623 charges involving 6,596 police officers from 2005 through 2012. Nearly half of the incidents were violent. Because Stinson’s data cover fewer than 20 percent of all law enforcement agencies and just a fraction of the 1.1 million sworn officers in the U.S., the actual number of arrests is undoubtedly much higher.
Without efforts by researchers such as Stinson, however, we might never know. That’s because the federal government does not collect this kind of data. Were the government to track crimes committed by police officers, it would rely heavily on self-reporting by police agencies. James Lynch, a former director of the Bureau of Justice Statistics and now professor at the University of Maryland, told Vice News that there would be an obvious problem with that method.
“You’re asking the police to tell you about the sins of their workplace,” said Lynch. “I suspect that they wouldn’t expect high levels of compliance. The data quality would not be good.”
Stinson and his team avoid this problem by gathering data from media reports and court records. Google alerts lead researchers to new incidents and help them track the status of existing arrests. It is not a foolproof system, acknowledged Lynch, but it is “legitimate.” Jonathan Blanks, who heads the Cato Institute’s National Police Misconduct Reporting Project, told Vice News that Stinson’s methods would not collect all misconduct by police, but that it was an important step forward.
“While imperfect, tracking misconduct like this is a public service to try to hold police accountable to the public they serve,” said Blanks.
Stinson’s methodology is evolving, but as it currently stands, the data show about 1,000 officer arrests per year. The most common arrest was for simple assault, with driving while intoxicated a close second. Other charges in the top 10 include drug violations, aggravated assault, and forcible rape. Rookie cops were arrested more often than veterans, and over 10 percent of the officers in the dataset were arrested more than once.
Stinson also tracked whether arrested officers lost their jobs. Of those determined to have been convicted, 91 percent were fired. But for all arrested officers, Stinson concluded that they lost their jobs just over half of the time. Stinson told Vice News that he was taken aback by these numbers.
“I always assumed that if an officer gets arrested, their career was over,” said Stinson. “What we’re seeing is that this is not the case. Many of these officers don’t get convicted, and many of them who actually leave their job, lose it, or quit, end up working as police officers elsewhere. So there’s a sort of officer shuffle that goes on.”
One major shortcoming, acknowledged by Stinson himself, is that as a measure of the number of crimes committed by cops, the data are necessarily incomplete. That’s because police officers provide each other with “professional courtesy” in many interactions. Norm Stamper, a former Seattle police chief and longtime San Diego police officer, agreed that this has been a problem in police departments for many years, but he believes that professional courtesy is going the way of the dinosaur.
“It [has been] understood that when you stopped a police officer off-duty, if you rolled up to his home on a domestic violence call, you would extend professional courtesy,” Stamper told Vice News. “Over time many police departments have corrected that; they’ve come to the realization that it doesn’t just look bad—it is bad.”
Stinson told Vice News that his intention was not to criticize law enforcement. Instead, he hoped to highlight police misconduct as a serious, systemic problem that is not uncommon and demands attention.
“What [people] don’t realize is that this shit is happening in communities across the country every day,” Stinson said.
The city of Chicago has paid out $20.3 million in settlements for police misconduct cases in the first eight weeks of 2018. (Scott Olson/Getty Images)
The city of Chicago paid more than $20 million in settlements for police-involved lawsuits in the first two months of the year, WBBM-TV reported Tuesday, and there could be millions of dollars more paid out in the near future.
What’s the story?
On Monday, the city paid $4.6 million to settle numerous police misconduct cases. On Feb. 9, the city paid $9.3 million in a reversed conviction case.
In 2016, Chicago paid $2.2 million for related cases in the first eight weeks of the year. In 2017, that number was $6.1 million; still nowhere near the $20.3 million that came out of the city’s budget in the first eight weeks of 2018.
Of that $20.3 million, about half of that money is for excessive force, false arrest and illegal search and seizure cases.
Also, there are currently 460 civil rights cases against the city that are under review, according to the Chicago Department of Law.
Need for reform?
Jon Loevy is a Chicago civil rights attorney who is involved in many of these cases. He said the city is essentially wasting money by settling all these cases and not addressing the issues that cause them.
“From an economic standpoint, dollars and cents, it would be cheaper to solve the problem than to keep paying out on lawsuits,” Loevy told WBBM. “We’ve heard rhetoric lately that it is time to make a change and time will tell if that’s going to happen.
“Our goal is that they put us out of business,” Loevy said.
An old problem
Last year, the Justice Department published a 164-page report following an investigation into misuse of force by Chicago officers.
Here is what the Justice Department found in Chicago: The Police Department inadequately trains officers to fight crime in a violent city and then fails to properly monitor their use of force or punish wrongdoing. The result is ‘a culture in which officers expect to use force and not be questioned about the need for or propriety of that use.’ Boiled down to the essence, Chicago cops abuse citizens because nobody tells them they can’t.
By Carol Rose, Executive Director, ACLU of Massachusetts, December 14, 2018 | 3:45 PM
The First Amendment right to record the police is a critical check and balance for people living in a free, open, and democratic society. It promotes the free discussion of governmental affairs as well as protects the democratic process. And for some communities, it’s a vital tool for uncovering, if not deterring, police misconduct.
But Boston-based civil rights activists Eric Martin and René Pérez were afraid to record the police. Under a state wiretap law passed in 1968, known as Section 99, it is a crime to secretly record private individuals and government workers, even those on duty like police officers. Since 2011, the Boston Police Department has applied for a criminal complaint against at least nine people for secretly recording police officers performing their duties in public, and the Suffolk County District Attorney’s Office has opened numerous case files based on this felony charge as well.
Because of this fact, although Martin and Pérez often feared for their safety when openly recording police officers in public, they also knew recording secretly could subject them to arrest and prosecution. Caught between safety concerns and fear of punishment, they often chose not to record at all.
But that’s about to change.
Two years ago, the ACLU of Massachusetts filed a lawsuit, Martin v. Gross, on behalf of Martin and Pérez, arguing that they have every right under the First Amendment to secretly record police officers carrying out their duties in public. This week, a federal court agreed.
Taking photographs, video, and audio in public spaces is a constitutional right — and that includes law enforcement officials carrying out their duties. The defendants in this case argued that they could lawfully apply Section 99 to prevent individuals from secretly recording police officers performing their duties in public. In her recent ruling, Judge Patti B. Saris of the United States District Court for the District of Massachusetts called that application of the wiretap law unconstitutional.
The court explained that police officers have “diminished privacy interests” when performing their job in public, while the public has a constitutionally protected interest in newsgathering, information-dissemination, and monitoring the conduct of law enforcement officials. The parties must now submit proposed language for an order implementing the court’s decision by January 10.The ACLU of Massachusetts has long championed the right to record the police in the public performance of their duties. In another ACLU case, Simon Glik openly recorded Boston police officers when they treated a man too roughly on the Boston Common. Glik himself was then arrested for his constitutionally protected behavior. In 2011, the U.S. Court of Appeals for the First Circuit unanimously affirmed that he had a First Amendment right to record the police carrying out their duties on the Boston Common.
Although the fact pattern in Glik happened to involve an open recording, the First Circuit did not so limit its First Amendment ruling. Judge Saris’ ruling evokes Glik’s protection of both the open and secret recording of police officers performing their duties in public, reiterating that “the First Amendment’s protection for information-gathering has special force with respect to law enforcement officials who are granted so much discretion in depriving individuals of their liberties.”
In recent years, the exercise of this First Amendment right has changed the public’s understanding of encounters between police officers and the public. Time and time again, people’s recordings of police interactions have started national conversations about police reform and accountability, from Eric Garner to Philando Castile to Sandra Bland. As the Trump administration welcomes a new attorney general who opposes Obama-era police reform and civil rights work, all of us play an increasingly important role in keeping the local police in check.
This week’s decision will help ensure that we have the tools to do so.