Boston Lawyer BlogSJC Opinion Addresses Racially-Motivated Social Media Surveillance by Police
In 2018, Richard Dilworth was charged with a variety of firearms offenses after an officer from Boston Police Department’s gang unit sent him a friend request on Snapchat under a false identity and viewed Dilworth’s videos showing what appeared to be guns. In 2022, a judge dismissed the case after prosecutors refused to provide discovery about police practices regarding social media surveillance. The prosecution appealed. This week—almost seven years after the beginning of the investigation—the dismissal was affirmed by a unanimous Supreme Judicial Court in an opinion that addresses a number of important legal issues for criminal defendants.
Over the course of the protracted case, Dilworth, who is Black, made a series of discovery requests aimed at developing a defense of selective enforcement based on race. The defenses of selective enforcement or selective prosecution typically require a defendant to show three things: (1) that a broader class of people than those prosecuted or investigated has violated a law, (2) that the failure to enforce the law across the board was either consistent or deliberate, and (3) that that the decision not to enforce or prosecute was based on a protected class like race. Dilworth accordingly sought information about individuals whose social media accounts police were secretly monitoring; he also requested user icons or bitmojis and the user names for the fake Snapchat accounts used by police, on the ground that these would “demonstrate the demographics of the groups they are trying to infiltrate.”
The judge granted most of Dilworth’s discovery motions, relying in part on the SJC’s landmark decision in Commonwealth v. Long, issued in 2020 during the pendency of Dilworth’s case. In Long, the SJC held that under constitutional guarantees of equal protection, a defendant subject to a traffic stop by police has a right to discovery about police practices in order to make out a selective enforcement claim, as long as the defendant can raise a reasonable inference that the particular stop at issue was motivated by race.
The prosecution and the BPD resisted turning over the information, bringing several interlocutory appeals before ultimately filing a notice of non-compliance with the court. In particular, they refused to disclose the icons or usernames used by “undercover” officers on Snapchat, arguing that revealing this material would harm the government’s ability to investigate gun crimes and would jeopardize the safety of officers and confidential informants. On appeal before the SJC, the government made three arguments in support of its position. First, it argued that Long applied only to traffic stops, not social media surveillance. Second, it pointed out that in another recent case, the SJC held that a defendant had no reasonable expectation of privacy in a Snapchat account shared with an undercover police officer. Third, it argued that the requested information about investigations was privileged, under either the surveillance location privilege or the confidential informant privilege. Both privileges allow the government to avoid disclosing information from criminal investigations but are non-absolute, requiring a balancing the government’s interest in non-disclosure with the defendant’s need for the information.
The SJC rejected the government’s arguments. Justice Gaziano, writing for the court, pointed out that in another case, Robinson-Van Rader (previously covered on this blog), the court had already explicitly stated that “the equal protection standard established in Long for traffic stops applies equally to pedestrian stops and threshold inquiries, as well as other selective enforcement claims challenging police investigatory practices” (emphasis added). Gaziano also swiftly rejected the idea that a reasonable expectation of privacy—a critical concept in search-and-seizure law under the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights—was relevant to claim based on equal protection, which focuses on whether the government has discriminated, not on whether it has intruded on a private space.
Finally, with respect to the government’s privilege arguments, Gaziano conceded that the undercover usernames and profile images could be privileged where their disclosure might compromise ongoing criminal investigations. He here differed with the judge below, who had ruled that the privileges categorically did not apply to these types of information. Noting that the government had the burden at this stage, however, the justice held that the government had failed to present sufficient evidence to invoke either the surveillance location or the confidential informant privilege. The evidence consisted solely of an “unsigned and undated affidavit” from a gang unit detective, containing statements that Gaziano characterized as “conclusory.”
A final issue in the case—perhaps the most important for the defendant—was the judge’s remedy for the Commonwealth’s non-compliance with the discovery orders: dismissal of the case with prejudice (meaning that the case could not be brought again). Although it emphasized that dismissal with prejudice is a “last resort,” the SJC held that the judge did not abuse his discretion in applying the drastic remedy. The government in this case had refused to consider alternative solutions to complete non-compliance, for instance providing redacted copies of discovery or allowing private, in camera review by the judge.
The appeal thus conclusively resolved the case in favor of Richard Dilworth. The decision helpfully clarifies what most lawyers already knew: Long applies to all police investigations, and the government is obligated to provide discovery, on pain of losing their case. Nonetheless, Dilworth still spent more than a half-dozen years embroiled in legal proceedings in order to reach this final result. Swift and forceful advocacy is needed to hold police and prosecutors accountable and to allow defendants to move forward with their lives.
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