Glik appeared in Boston Municipal Court with his lawyer, June Jensen of Wayland, this past month to ask the judge to dismiss the Commonwealth’s charges against him. Neither the criminal complaint nor the police report on their face stated facts to demonstrate that what Glik did was prohibited by the laws under which he was charged, they said. Several days later, Judge Mark Summerville dismissed the charges, agreeing with Glik that non-secret recordings were lawful.
The Hyde decision specifically said that the defendant would not have been convicted had “he held the tape recorder in plain sight,” Summerville noted. He also wrote in his scholarly opinion that “distract[ing]” police officers is not the same as disturbing the peace. (The Commonwealth had previously dropped the charge of aiding the escape of a prisoner because the suspect whose arrest Glik recorded didn’t meet the definition of “prisoner.”)
Summerville’s decision is good news for Glik, who had, ironically, been seeking a job as a prosecutor, but who has had difficulty getting hired — despite graduating at the top of the New England School of Law class of 2006 — because of the outstanding criminal charges. Even so, neither the Hyde opinion nor Summerville’s decision is likely to stop police in the future from arresting citizens who record their misconduct.
The explicit statement in Hyde, that the law prohibits only secret recordings, creates a perverse incentive for cops to exaggerate or lie about whether a citizen was surreptitiously recording them in order to obtain a conviction in future cases. The small size of cell-phone cameras makes it easy for a cop to claim that at least part of the recording was done before the police noticed. And if it comes down to an officer’s word against the citizen’s, who do you think wins?
Citizens who want to document police misconduct need more protection than the statute, the Hyde opinion, and Summerville’s Glik ruling provide. As long as state law prohibits secret recordings of police activity, there can be little effective deterrent to police abuse. Without evidence, citizens cannot credibly pursue complaints. Under Massachusetts’s Hyde standard, as Chief Justice Margaret Marshall pointed out in her vigorous dissent in that case, the Rodney King video taper (or a reporter in the same position) would have committed a crime by recording that infamous example of police brutality on a Los Angeles street.
When cops take off their badges and go home at the end of the day, they should, of course, expect they won’t be harassed by tape-recorder-wielding citizen advocates. But they should not expect privacy in their official speech and actions while on the clock. What the state does is the public’s business. In a democracy, we citizens are the owners, not the servants, and especially not the designated victims.
The legislature should address this flaw in our wiretapping statute, since the Supreme Judicial Court majority has failed to do so. Good governance and public officials’ integrity are only helped by letting citizens record their interactions with public officials — secretly or openly. Accordingly, one solution to the bad precedent created by Hyde would be to recognize in a reconfigured wiretap law that public officials and employees, and especially police officers, have no privacy right in what they say and do while exercising the authority of office or law.