Martin v. Evans, 241 F. Supp. 3d 276

Background

Plaintiffs Eric Martin and René Pérez are Boston-based civil‑rights activists who regularly record police in public and say they have refrained from secretly audio‑recording officers out of fear of prosecution under Mass. Gen. Laws ch. 272, § 99.
Both plaintiffs teach “Know Your Rights” trainings and say Section 99 chills their instruction and would deter them from advising or making secret recordings when open recording would threaten safety.
Plaintiffs allege Boston Police Department (BPD) training materials and a 2010 training video instruct officers they may arrest persons who secretly record oral communications; Suffolk County DA has previously prosecuted secret recordings.
Plaintiffs bring an as‑applied § 1983 challenge seeking declaratory and injunctive relief, asserting Section 99 violates the First and Fourteenth Amendments when applied to secret recording of police performing public duties.
Defendants (BPD Commissioner Evans and Suffolk County DA Conley) moved to dismiss for lack of standing, failure to state a First Amendment claim, lack of municipal liability (Evans), and Pullman abstention (Conley).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing for pre‑enforcement challenge	Plaintiffs intend to secretly record officers when open recording would be unsafe; fear of prosecution chills conduct and instruction	Defendants argue plaintiffs lack concrete, imminent injury and cite Clapper; redressability is uncertain because other authorities might prosecute	Plaintiffs have standing: intention + credible threat of enforcement; redressability satisfied for discrete injunctive relief
Municipal liability (Monell)	BPD affirmatively trains/enforces Section 99 against secret recording; training materials show conscious choice to enforce	Evans: enforcing state law is not a municipal policy and therefore not actionable under Monell	Complaint plausibly pleads Monell: allegations show BPD consciously chose to educate/enforce Section 99 against secret recording
Pullman abstention / state‑law narrowing	Plaintiffs: federal ruling necessary; state court clarification unlikely to avoid constitutional question	Conley: state courts could narrow Section 99 (e.g., phone exception or when recording is not secret) so federal court should abstain or certify questions	Pullman abstention rejected: statute not obviously susceptible to limiting construction that would avoid constitutional ruling; no reasonable possibility state ruling would obviate federal decision
First Amendment as‑applied challenge	Secret audio recording of police is protected information‑gathering; Section 99 is overbroad as applied to nondisruptive public recordings	Evans: First Amendment does not protect secret recording	Court: First Circuit precedent protects recording public officials; Section 99 is content‑neutral but fails intermediate scrutiny as applied to secret recordings of public officials in public spaces

Key Cases Cited

Monell v. Dept. of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978) (municipal liability requires an official policy or custom)
Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (First Amendment protects filming public officials performing duties in public)
Commonwealth v. Hyde, 434 Mass. 594 (Mass. 2001) (Massachusetts Wiretap Statute prohibits secret electronic recording of oral communications)
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) (pre‑enforcement standing where plaintiffs plead specific intended statements and credible threat of enforcement)
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (no standing where injury depends on highly attenuated chain of future events)
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (pre‑enforcement standing where plaintiffs alleged past and intended future conduct and government had prosecuted related violations)
McCullen v. Coakley, 134 S. Ct. 2518 (2014) (content‑neutral restrictions on speech are subject to intermediate scrutiny)