Appeals court says there’s a clearly established right to openly record police

Dr. Q

In October, 2007, attorney Simon Glik was walking through the Boston Common when he saw three police officers struggling with a man. Glik, who believed the police were using excessive force, stood about ten feet away and began recording the police with his cell phone camera.

After the police had put the man in handcuffs, one of the officers told Glik “I think you have taken enough pictures.”

Glik told the officers “I am recording this. I saw you punch him.”

One of the police approached Glik and asked him if his cell phone recorded audio as well as video. When Glik responded in the affirmative, the police arrested him, took his cell phone, and charged him with felony wiretapping, disturbing the peace, and aiding in the escape of a prisoner.

The prosecutor for Glik’s case dropped the aiding in the escape of a prisoner charge and Municipal Court Justice Mark Summerville dismissed the two remaining charges, noting that while the “officers were unhappy they were being recorded during an arrest… their discomfort does not make a lawful exercise of a First Amendment right a crime.”

After Glik was cleared of the unjust charges, the American Civil Liberties Union of Massachusetts filed a federal lawsuit against the three officers who arrested him and the City of Boston on behalf of Glik. The suit alleges that the three officers, John Cunniffe, Peter Savalis, and Jerome Hall-Brewster, violated Glik’s First Amendment rights by arresting him for recording them and his Fourth Amendment rights by arresting him without probable cause that he committed a crime.

The officers attempted to have Glik’s lawsuit dismissed on the grounds that they were entitled to “qualified immunity,” a legal privilege that shields certain government officials from liability when they violate the rights of others if they can show that a reasonable person would have done that same thing if in their shoes. The officers argued that it was reasonable to arrest Glik and charge him with wiretapping “because it is not well-settled that he had a constitutional right to record the officers.”

The officers’ motion to dismiss the lawsuit was rejected by a district court judge, but the officers were allowed to appeal.

The results of the appeal came back on August 26, when the First Circuit appeals court issued a unanimous ruling. Like the district court, the First Circuit rejected the officers’ claim of qualified immunity, noting that the right to openly record police in Massachusetts is firmly established and that the officers should have been aware of this. As the court wrote in its ruling (.pdf format):

The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” … An important corollary to this interest in protecting the stock of public information is that “[t]here is an undoubted right to gather news ‘from any source by means within the law.'” …

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.”

The appeals court ruling is a real victory. Not only will Glik be permitted to move forward with his lawsuit, but now judges will be less likely to entertain wiretapping cases and police will be more likely to face lawsuits, under both the first and fourth amendments, if they arrest videographers.

However, the Massachusetts wiretapping statute will still be problematic for people who support police accountability. Although the right to openly record police has been firmly established, the currently accepted interpretation of the wiretapping statute criminalizes “secretly” recording police even when they are on duty and in public places like the Boston Common. 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.”

The right to make “secret” recordings of police is just as important as the right to make recordings of police “in plain sight.” If a police officer is willing to commit a serious crime like making a false arrest or beating someone, it’s not likely that their moral compass will prevent them from destroying evidence. Hiding a recording device in one’s pocket may be the only hope a victim of police brutality or misconduct has for getting accountability. Until a court overturns the decision in Hyde, the Legislature changes the wiretapping law to allow “secret” recording, or voters pass a ballot initiative to change the law, Massachusetts residents will continue to live in fear that they will be prosecuted and imprisoned simply for trying to hold the police accountable.

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