Last week, Springfield police officer Michael Sedergren filed an application for a criminal complaint accusing a woman, Tyrisha Greene, of illegal “wiretapping” because of a video-recording she made in November, 2009. The video in question shows a white police officer beating a black man named Melvin Jones with a flashlight during a traffic stop while a group of other white police officers (including Sedergren) watch and fail to intervene. The beating left Jones with broken bones in his face, broken teeth, and partially blind in one eye.
You can view Greene’s video here.
The officer who carried out the beating, Jeffrey M. Asher, was fired over the incident (but not until after he received his disability pension) and currently faces criminal charges. Three other officers, including Sedergren, were disciplined over the incident. Sedergren was punished with a 45 day suspension from his job.
Asher and Sedergren are both currently being sued by Melvin Jones. Jones specifically accuses Sedergren of kicking him in the groin and calling him a racial slur.
Jones is currently being held in jail without the right to bail and faces a number of criminal charges from separate incidents including shoplifting, domestic assault, and cocaine trafficking.
Sedergren argued that the Greene’s video of the beating violated the Massachusetts wiretapping statute, which criminalizes the creation of “secret” audio-recordings of conversations, because it was recorded without his knowledge or permission.
Yesterday, The Republican reported that Assistant Clerk Magistrate Joanne M. McCarthy rejected Sedergren’s application after a short closed-door hearing at the Chicopee District Court.
Hampden District Attorney Mark G. Mastroianni said he would have been unlikely to pursue the charges anyway because the law only covers conversations for which a person has an expectation of privacy. “I’m leaving the door open if there is more evidence presented to me, but as I understand the facts now, this case falls far short of the wiretapping statute,” he said.
Mastroianni’s interpretation of the Massachusetts wiretapping statute appears to be different than the one offered by Massachusett’s Supreme Court. In the case Commonwealth v. Hyde (2001), the Massachusetts Supreme Court ruled that Michael Hyde, a musician, violated the state’s wiretapping law when he recorded a police traffic stop with a tape recorder hidden in his car. The Supreme Court ruled that even though Hyde’s recording was made in a public place, it was created in “secret” because Hyde concealed his tape recorder. The court noted that he could have avoided his conviction if he “had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.”
Regardless of how one interprets the wiretapping statute, McCarthy’s decision to reject the charge against Greene was a good one. There’s no evidence that Greene made her recording in “secret.” For instance, she did not deliberately conceal her recording device as Michael Hyde did. And even if she had hidden her camera, the “wiretapping” charges still would not be appropriate.
As I’ve written before, laws that criminalize the creation of audio-recordings in public are, at their core, attacks on freedom of expression and freedom of the press. They are especially odious when they are used to prosecute people who record powerful government officials like police officers during the course of their duties. Recording the police is one of the best and only ways that the average person can hope to hold them accountable. Criminalizing the recording of police officers — whether it’s done secretly or in the open — will only lead to more incidents of police abusing people.
The Massachusetts Legislature should update the state’s wiretapping statute to allow individuals to create “secret” audio-recordings of others as long as there is no expectation of privacy. Until then, jurors should refuse to convict individuals who are charged with “wiretapping” for recording public officials like police officers even when the recording is made in “secret.”