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: