Free State Project Leader Wins Victory Against Cops Trying to Punish Filming Them

Good news from Carla Gericke, current president of the Free State Project (which
encourages libertarians to move to New Hampshire and help turn it
into a more libertarian land).

Gericke had been arrested in 2010 by Sgt. Joseph Kelley of the
Weare, New Hampshire, police department, for, among other charges,
allegedly violating the state’s wiretapping statues by attempting
to film his actions after he’d pulled over a friend Gericke was
driving behind. (The camera she aimed at him wasn’t actually
working.)

Gericke never went to trial, as the city declined to go ahead
with the prosecution. But Gericke went ahead and sued the officer,
the department, and city, claiming that the wiretapping charge, as
today’s decision from the U.S. Court of Appeals for the 1st Circuit
said, “constituted retaliatory prosecution in violation of her
First Amendment rights.”

Today the U.S. Court of Appeals for the 1st Circuit decided
that  

she was exercising a clearly established First Amendment right
when she attempted to film the traffic stop in the absence of a
police order to stop filming or leave the area. We therefore affirm
[a lower court decision denying the cops a claim of qualfied
immunity against the suit].

The Appeals Court seems to back up an earlier District Court
declaration that:

“the officers had no reasonable expectation that their public
communications during the traffic stop were not subject to
interception…..a reasonable officer should have known that a
blanket prohibition on the recording of all traffic stops, no
matter the circumstances, was not constitutionally
permissible.”

The 1st Circuit Court of Appeals does admit such a right to film
is not unlimited, is subject to reasonable time, place, and manner
restrictions, and that if it constitutes interference with the
officer’s duty, it might be permissibly halted. Still, the Appeals
Court concludes that:

any reasonable officer would have understood that charging
Gericke with illegal wiretapping for attempted filming that had not
been limited by any order or law violated her First Amendment right
to film.

Thus, their claim that they should have immunity against
Gericke’s claim that they violated her rights with the charge
remains beaten down by the courts.

My 2004 feature on the early
days of the Free State Project.

A Reason TV interview with Gericke: