Martin v. Gross, (D. Mass.) 2019. Martin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018).
The United States District Court in Massachusetts recently reiterated its late 2018 conclusion that a Massachusetts statute that criminalizes covert non-consensual audio or video recordings is unconstitutional as applied to public officials performing their duties in public spaces. The court examined the competing important government interests in protecting privacy and in permitting information gathering and observed that the police and public officials have no reasonable expectation of privacy when publicly performing official acts.
In May, the court determined that it would be preferable to refrain from issuing injunctive relief and would let its December opinion stand as a declaratory judgment. Moreover, the court declined to issue definition of “public space” that would narrow the concept and declined to adopt a list of places to be considered public spaces. In that the permissibly of recordings is subject to reasonable time, place, and manner restrictions, the court sensed that opening the court’s doors to review by contempt proceedings would not be reasonable in that there can be no “one size fits all” injunction and that the availability of contempt proceedings would cause the court to engage in second-guessing the police function.
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