Bitmojis, a type of icon used in Snapchat, represent the user.
Source: Defense brief dated November 20, 2023 in Massachusetts Supreme Judicial Court case Commonwealth v. Richard Dilworth
The state’s highest court has again expanded the responsibility of police in Massachusetts to show that their investigations aren’t racially biased.
The high court upheld a trial court judge’s dismissal of gun charges because Boston police wouldn’t turn over documents showing how they conducted an undercover investigation on social media.
The case, which was decided Friday, stems from an investigation that began in October 2017, when an undercover Boston police officer with the department’s anti-gang Youth Violence Strike Force submitted a friend request to the Snapchat account of a black man living in the city. The man accepted the online friend request, which allowed the cop to see on his Snapchat account videos of the man “brandishing what appeared to be a firearm,” the Massachusetts Supreme Judicial Court said in its opinion.
That led police in January 2018 to approach the man while he was sitting in a sport utility vehicle parked behind his home, where they found a .40 caliber Smith and Wesson pistol loaded with 26 rounds “tucked into his waistband,” the court said. Four months later, in May 2018, police after watching another Snapchat video frisked the man outside his home and found a 9-millimeter Ruger handgun “with an obliterated serial number” on him, the court said.
A grand jury later indicted the man on nine counts related to unlawfully possessing firearms and ammunition.
As part of discovery, the man’s public defender asked for documents from Boston police about the investigation, on the basis of an informal survey he did of fellow criminal defense lawyers that found that police Snapchat investigations in 20 cases involved 17 defendants who were black and three who were Hispanic, with no defendants who were white.
The public defender particularly wanted to know how individual police officers represented themselves online during their investigations, including what user name they used and whether they used an image of a black person as the user icon (known as a “bitmoji”), which might be likely to attract potential black suspects.
Here below are examples of what a bitmoji looks like, taken from the defense brief:
The defense lawyer said he was looking for evidence of the “racialized targeting of the investigation,” and he cited past appeals court judgments to show that courts take a dim view of racial profiling by police.
The Fourteenth Amendment to the U.S. Constitution requires that states provide “equal protection of the law”; Article 106 of the Massachusetts Constitution guarantees “Equality under the law” without regard to “sex, race, color, creed, or national origin.”
“The upshot,” wrote Joshua Raisler Cohn, a lawyer with the Committee for Public Counsel Services, in a brief dated November 2023, “… is that equal protection principles protect citizens from police action, including based solely on impermissible racial considerations.”
Boston police didn’t want to give up the information because they feared it would jeopardize their investigations and the safety of undercover officers and confidential informants, the Suffolk County District Attorney’s office said in its June 2023 brief.
The brief quotes Boston Police Detective Brian Ball as saying that gang members “actively seek out and assault and/or kill individuals they perceived to be cooperating with law enforcement.”
“The disclosure of the social media account in these hearings would allow the target of the investigation the ability to narrow down the inevitable list of individuals believed to have cooperated with law enforcement,” Ball said in an affidavit quoted in the brief. “The disclosure of the account details, such as the username and description of the account’s profile picture, would instantly jeopardize other investigations conducted with similar tactics. …It has become commonplace for suspected Law Enforcement undercover accounts to be publicly exposed when discovered.”
Prosecutors also argued that police didn’t have to turn over the information to the defense because they didn’t have to defend how they conducted an online investigation, as opposed to how they handle traffic stops and pedestrian pat-downs.
The state Supreme Judicial Court was unpersuaded.
“The use of undercover social media accounts to monitor suspected criminal activity does not necessarily involve confidential informants. As such, there may be no confidential informant to protect,” Justice Frank Gaziano wrote for the court.
“Additionally, disclosure of an undercover social media account does not risk chilling public participation in law enforcement because the public does not participate in the deception,” the court said. “Finally, to the extent that danger lurks in the ability of a defendant to ascertain the identity of an informant through cross-referencing usernames or profile images with other information, the Commonwealth failed to establish a nexus between disclosure of the requested information … and potential danger to a confidential informant.”
In recent years the Massachusetts Supreme Judicial Court has raised the bar for police in the state to show that they aren’t targeting suspects because of their race.
In 2008, the court found in a case called Commonwealth v. Lora that “evidence of racial profiling … is relevant to determining whether a traffic stop is the product of selective enforcement” that would violate the state constitution, and that a defendant can offer “statistical evidence demonstrating disparate treatment of persons based on their race” to “shift the burden” to prosecutors “to provide a race-neutral explanation for such a stop.”
In 2020, the count made it easier for defendants to present a legal challenge to a traffic stop, ruling in a case called Commonwealth v. Long that a defendant needn’t provide a statistical analysis of traffic stops but only establish “a reasonable inference that the officer’s decision to initiate the stop was motivated by race or another protected class” based on what the court called “the totality of the circumstances surrounding the stop.” If the defendant does that, then prosecutors have the burden of “rebutting the inference” of a racially motivated traffic stop during a hearing before a trial court judge.
In the case decided yesterday, the court extended that logic to online investigations that don’t involve a traffic stop or another kind of encounter in person.
“We reject the Commonwealth’s view of what types of police investigatory practices are subject to the revised Long equal protection framework. The Long standard applies to alleged discriminatory policing in the investigatory phase of a case,” the court said. “… It encompasses a claim that the police monitored social media accounts based on the target’s race or membership in another protected class.”
In the case decided yesterday, the trial court judge in July 2022 dismissed the criminal charges against the defendant with prejudice, meaning prosecutors couldn’t bring the same charges against him unless a higher court overturned his decision. The state Supreme Judicial Court yesterday upheld the trial court judge’s decision, meaning the criminal charges are now permanently dismissed.
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Bitmojis, a type of icon used in Snapchat, represent the user.
Source: Defense brief dated November 20, 2023 in Massachusetts Supreme Judicial Court case Commonwealth v. Richard Dilworth 
