Three years ago,
in Glik
v. Cunniffe, the U.S. Court of Appeals for the 1st
Circuit upheld a
man’s First Amendment right to record an arrest on Boston
Common. Last week, in Gericke
v. Weare, the court upheld a woman’s First
Amendment right to record a traffic stop in Weare, New Hampshire.
The combination of these two decisions is a powerful rebuke to cops
who continue to harass
people with bogus wiretapping charges when they dare to capture
images or sound of police encounters on their cellphones.
In the 2011 case, Simon Glik was charged with violating
Massachusetts’ broad wiretap law, which makes it a crime to
“willfully commit[] an interception…of any wire or
oral communication,” after he
recorded an arrest in which he believed police
were using excessive force. The 1st Circuit ruled that “a citizen’s
right to film government officials, including law enforcement
officers, in the discharge of their duties in a public space is a
basic, vital, and well-established liberty safeguarded by the First
Amendment.” Hence “Glik was
exercising clearly established First Amendment rights in filming
the officers in a public space.”
In the case decided last week, Carla Gericke took out her
cellphone after police pulled over her friend, whose car she was
following to his house, and announced that she was recording the
stop. The 1st Circuit ruled that the First Amendment right
recognized in Glik also applies to traffic stops, although
it may be reasonably restricted in that context to protect the
safety of officers and the public. In this case, Gericke says
police never asked her to stop recording or to leave the scene;
they just arrested her afterward. “Based on Gericke’s version of
the facts,” the court said, “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.”
New Hampshire’s wiretap statute, unlike the Massachusetts
law, applies only to situations in which the people who are
recorded have a reasonable expectation of privacy. The 1st Circuit
noted that police officers performing their duties in public have
no such expectation, especially when the person recording them
announces her intention to do so. Furthermore, because of a
technical glitch, Gericke did not actually capture any video of her
friend’s detention. These facts help explain why local prosecutors
ended up dropping the charges against Gericke. The cops who
arrested her were so keen to punish her perceived disrespect that
they not only violated her constitutional rights; they misapplied
the statute.
What’s especially significant about both of these cases is that
they allowed lawsuits against the police officers themselves to
proceed. The court decided that the officers did not qualify for
immunity because the rights they violated were clearly established
at the time of the arrests. Cops who continue to
mistakenly believe they have a right not to be recorded while on
duty should understand that they cannot hide behind their real or
professed ignorance of what the Constitution requires.
In a case that J.D. Tuccille
noted a couple of weeks ago, police in Chicopee, Massachusetts,
charged Karen Dziewit with wiretapping after she recorded her
own arrest for disorderly conduct and possessing an open container
of alcohol. Unlike Glik and Gericke, who openly recorded the cops,
Dziewit did so surreptitiously, but that detail should not affect
the constitutional analysis. The 1st Circuit recognized a First
Amendment right to “film government officials, including law
enforcement officers, in the discharge of their duties in a public
space.” That description clearly applies to the officers who
arrested Dziewit. The fact that they did not realize she was
recording them does not matter. Officers should take it granted
that people may be recording them whenever they are performing
their duties in public, and if they did it probably would
improve their behavior.
[via
Ars Technica]
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