Above photo: Police face off with activists during a protest march near the Manhattan Bridge on Sunday, May 31, 2020, in New York. Demonstrators took to the streets of New York to protest the death of George Floyd, who died May 25 after he was pinned at the neck by a Minneapolis police officer. Kevin Hagen, AP.
District Attorney Rachael Rollins sought to block the disclosure of records that could show Boston police used Snapchat to target people who are Black or Latinx.
Massachusetts’s highest court will not block the disclosure of police reports that could show the Boston police department has targeted Black and Latinx men for surveillance on social media.
Boston attorney Josh Raisler Cohn, who represents a man charged with several gun violations, began seeking the police reports in November 2018 to determine if the police have surreptitiously used the social media service, Snapchat, to target people of color. In January 2019, Superior Court Judge Robert Ullmann ruled that the police department must provide Raisler Cohn with reports from Aug. 1, 2017 to July 31, 2018, for any case in which a charge was filed as a result of law enforcement surveillance of Snapchat accounts. Ullmann excluded sexual assault, murder, and human trafficking cases.
Suffolk County District Attorney Rachael Rollins appealed Ullmann’s order, but her office’s petition was denied. After an unsuccessful appeal to a single justice of the state’s Supreme Judicial Court, the commonwealth appealed again to the full Supreme Judicial Court. “If allowed to stand, the discovery order will have a truly crippling effect on the investigation of serious criminality,” according to the petition filed in February by Rollins’s office.
The full court denied Rollins’s petition. The DA’s office did not immediately respond to requests for comment.
The court’s decision could affect at least 20 cases in which defendants have sought similar records. Those requests were put on hold while lower courts waited for the Supreme Judicial Court’s ruling, said Matt Spurlock, an appeals attorney for the state’s public defender system, the Committee for Public Counsel Services.
“It’s going to be the Boston Police Department’s responsibility to heed the order, to comply with the discovery order. That will be what happens next,” Spurlock said. “We will have to analyze the data and look at it and try to see if there was—who are they surveilling in this way? What is the racial composition of social media surveillance?”
Spurlock represented Raisler Cohn’s client, who is Black, before the Supreme Judicial Court. Their client was charged with several gun violations, including possessing firearms without a license. Before his arrest, a Boston police officer sent the man a friend request on Snapchat, which he accepted, according to court documents. The officer did not identify himself as law enforcement. Officers claimed to have seen eight Snapchat videos of Raisler Cohn’s client with what appeared to be firearms. He was arrested on Jan. 11, 2018. He was released, then allegedly posted another Snapchat video with a gun in May 2018 and was arrested again. His case is still pending. With the court’s decision today, the discovery process—including the police reports—can proceed, according to Spurlock.
Raisler Cohn conducted an informal survey of Suffolk County defense attorneys and identified at least 20 cases in which law enforcement surreptitiously used Snapchat to target people for surveillance. Eighty-five percent of those targeted were Black and 15 percent were Latinx. None were white. More data is needed, he argued, to determine if there is a pattern and practice of using Snapchat to target people of color.
Rollins took office last year, after running as a reformer who would work to increase transparency, address racial disparities, and reduce incarceration rates. The position her office is taking, advocates say, contradicts the spirit of her campaign, and the policy memo that she released in March 2019.
“We must also look back and consider relief for all persons who may have been charged and convicted at higher rates due to poverty, race, religion, sex, gender, or identity,” Rollins wrote in the memo. Data, she wrote, should be used to identify “investigatory and prosecutorial disparities, vigorously and honestly interrogate the reasons for them, and swiftly eliminate them.”