Massachusetts

Subscribe to Massachusetts via RSS

In 2018, Proskauer highlighted the importance of a New York law that gives those with criminal convictions an opportunity to build a better life. New York Crim. Proc. Law § 160.59 (“CPL 160.59”) allows persons convicted of certain crimes to apply for their criminal record to be sealed upon meeting two requirements: (1) at least ten years have passed since their release from prison; and (2) a record of two or fewer criminal convictions only one of which can be a felony.  Once sealed, these records are inaccessible to the public and through routine background checks, such as those used by landlords and employers. Though CPL 160.59 has provided some with a needed second chance, it has excluded far too many people.

Many other states have implemented their own laws permitting criminal records to be sealed — in 2019 alone, 31 states and D.C. enacted bills creating, expanding, or streamlining conviction record sealing, set-asides, or expungement. New York was one of those states, reforming the system by automatically sealing drug convictions for now decriminalized offenses, as well as sealing certain pending matters where there has been no activity in the past five years.  Nevertheless, New York did not take the opportunity to expand the scope of CPL 160.59 and thus it remains severely underused compared to original estimates.

Last week, in Martin v. Gross, Chief Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts granted summary judgment in favor of our clients, finding the Massachusetts Wiretap Statute (Mass. Gen. L. ch. 272, § 99) unconstitutional when applied to secret recordings of government officials performing their duties in public.  The decision is significant for its clarification of protections under the First Amendment.

The Massachusetts Wiretap Statute makes it a felony to “secretly” record oral communications writ large, regardless of the other circumstances of the recording.  Our clients—two civil-rights activists in Boston and the plaintiffs in this case—challenged the Massachusetts Wiretap Statute as unconstitutional under the First Amendment as applied to secret recordings of police officers performing their duties in public.  While both plaintiffs have openly recorded law enforcement officials performing their duties in public, both believe secret recording would protect their safety and more accurately document officials’ behavior in public.

Earlier this month, Proskauer filed an amicus brief on behalf of the Brady Center to Prevent Gun Violence in support of the Commonwealth of Massachusetts’ ban on assault weapons, such as the AK-47 or the AR-15, and large-capacity magazines.  We filed the brief with the United States Court of Appeals for the First Circuit in Worman v. Healey, a case challenging the ban on Second Amendment grounds.  Partner Kimberly Mottley and I led the team, with Lindsey Olson Collins and Steven A. Sutro co-authoring the brief.

Since 1998, Massachusetts has banned the sale and possession within the state of military-style assault weapons and large capacity magazines.  These same weapons were used in some of America’s deadliest mass shootings:  Sandy Hook Elementary in Newtown, Connecticut;  the Pulse nightclub in Orlando, Florida;  the Route 91 Harvest Festival in Las Vegas, Nevada;  Marjory Stoneman Douglas High School in Parkland, Florida; and most recently,  the Temple of Life synagogue in Pittsburgh, Pennsylvania. The popularity of such assault weapons among perpetrators led the New York Times to dub them the “rifles of choice for mass shootings.”