Another Blow Against Cops Who Think They Have a Right Not to Be Recorded

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 (which Brian Doherty noted that day), 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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  • sarcasmic||

    Nothing will change unless the cops face consequences for their actions. Departments shelling out taxpayer dollars while not admitting fault doesn't count.

  • ||

    I presume the Nazgul will be summoned to correct this poor behavior on the part of their underlings. At this point, why wouldn't the police appeal everything up? The Supremes would probably let them rape confessions out of suspects as long as there was a reasonable tie-in to officer safety.

  • in4mation||

    I'm going to guess most cops don't read Rason or court decisions.

  • croaker||

    The only thing they read is the "desk book", which is a cheat sheet that distills the laws and legal decisions into simple "can do" and "can't do" written for IQ's near room temperature.

  • ||

    I assumed something of the like. That, or the "How do YOU get around X,Y, and Z" at PoliceOne.

  • liam.lah||

    Celcius, right?

  • ||

    Cell phone guns?

    http://cellular.co.za/phones/g.....-phone.htm

    Officer safety and all that.

  • ||

    "Cell phone users will have to be made aware that reaching for their phones in some circumstances could be misinterpreted as a threat by authorities."

    Well that ranks way up there with assault infants and robotic IEDs disguised as puppies.

  • Copernicus||

    Solution: All recording of Police should be done with the "selfie" technique, whereby the camera operator is actually facing away from the police.

  • pangloss90@gmail.com||

    Seems worth noting that the Carla Gericke in question is also the President of the Free State Project, and has in fact been the subject of a reasonTV interview before on the topic of the FSP and libertarian activism in NH.

    https://www.youtube.com/watch?v=vxz7yao9YUQ

  • TribelessLawlessHeartless||

    In any jurisdiction where two party, or all party consent is required to record a conversation on the phone or in person, police officers have been trained (usually by prosecutors) that any recording without full consent of all parties is illegal. That is UNLESS there is no expectation of privacy. Where there is no expectation of privacy, such as a traffic stop or public accosting, there is no requirement for consent. It is a training, and sometimes an ego, issue. You can't condemn cops for acting based upon what they are trained is the law.

  • Jeff K||

    Sure I can.

    Their business is to know the law and enforce it fairly. In order to remain employed, one must be competent in their job, in this case that means knowing what the law is, and being able to determine if it is being broken.

    If they can't do that accurately, they are incompetent and should be fired.

  • Mr. Soul||

    ^ yes.

    If you safely roll thru a stop sign in order to distance your car from a possible accident (increase public safety), I will condemn any cop that cites you.

  • Copernicus||

    "You can't condemn cops for acting based upon what they are trained is the law."

    This is such a fundamental issue to the job, it is "unthinkable" that any Police Department or Police Chief hasn't already made it explicitly clear through multiple briefings, memos, and special training regarding the "rights" or "legality" of the public to record Police at work.

  • Scarecrow Repair||

    If ignorance of the law is no excuse for me, it sure as hell isn't for law enforcement.

  • D. M. Michell||

    Oh, you mean like the Nazi defense at the Nuremberg trials: "I was only following orders."

  • ImanAzol||

    Ignorance of the law is no excuse.

  • Josh M.||

    Question: do police officers have to read/learn the Constitution and pass a test on its contents before they are put on active duty? If not, I'm mad.

  • FSPVince||

    A very important part of this story was left out: Carla is the President of the Free State Project - an organization designed to move 20,000 liberty loving activists to New Hampshire.

    We have almost 16,000 people who've signed up to move and nearly 1,400 people have been so excited that they've moved before the goal of 20,000 signers has been met! Sign up and join us in New Hampshire!

    FreeStateProject.org

    Thanks, Reason!

  • D. M. Michell||

    Quite often, not all the time, but quite often the police act like arrogant thugs and sometimes they seriously injure or even kill innocent people, but seldom are held accountable and seldom say they are sorry. They become upset that anyone would question their authority and actions. If we all meekly, humbly submit to them, all will be okay. But that is what is expected in a police state. The police must be recorded any time and every time they are doing anything that looks like basic thug actions. They are not better than the citizens they are supposed to protect and serve.

  • Jadaws||

    Not to split hairs, but the incident referred to at the end did not take place in Chicopee. Dziewit is from Chicopee, but this happened in neighboring Springfield. I live in Chicopee and made the same mistake when I first heard about it, but was relieved to find out this didn't happen in the city where I live...this time at least.

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