1st Circuit: People can record police performing duties in public

Wednesday, August 31, 2011

People have a clearly established right to film the police in public as long as they do so peacefully and do not interfere with officers’ duties, a federal appeals court has ruled.

In October 2007, Simon Glik used his cell phone’s video camera to film officers who were arresting a young man on the Boston Common, a public park. Glik thought the officers were using excessive force and said so to an officer who responded by asking if Glik had audiotape. When Glik said he did, the officer arrested him for allegedly violating a state wiretap law and for disturbing the peace. The police also confiscated Glik’s cell phone and computer flash drive.

In February 2008, a municipal court in Boston dismissed the charges against Glik. That court said that just because the “the officers were unhappy they were being recorded during an arrest” didn’t make Glik’s “lawful exercise of a First Amendment right a crime.”

Glik filed an internal-affairs complaint with the Boston Police Department to no avail. He then filed a federal civil rights lawsuit in February 2010, alleging a violation of his First and Fourth Amendment rights and other claims.

The officers he sued argued that they were entitled to qualified immunity, a doctrine that shields government officials from liability unless they violate clearly established constitutional rights. A federal district court denied the officers’ motion to dismiss and rejected the qualified-immunity argument.

The officers then appealed to the 1st U.S. Circuit Court of Appeals, which unanimously upheld the district court in its Aug. 26 decision in Glik v. Cuniffe. With respect to qualified immunity on the First Amendment claim, the three-judge panel ruled that there was a clearly established right to videotape police officers carrying out their duties in public.

Writing for the panel, Judge Kermit Lipez noted that a previous 1st Circuit decision — Iacobucci v. Boulter (1999) — had found that a journalist was engaging in First Amendment-protected activity when he filmed officials in a hallway outside a historic-district commission meeting. Lipez also noted that several federal circuit and district courts across the country had determined that individuals had a First Amendment right to film the police.

Lipez emphasized that Glik’s status as a non-journalist was of “no significance” in the constitutional calculus. This means that the First Amendment protects the rights of non-journalists just as much as journalists when it comes to filming the police. He wrote that “changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw” and that “news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper.”

“Such developments make clear why the newsgathering protections of the First Amendment cannot turn on professional credentials or status,” Lipez wrote.

He also emphasized that Glik acted peacefully in a public park — the most traditional of public forums. And he said: “Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses … , but also may have a salutary effect on the functioning of government.”

The officers noted that previous cases did not expound in great detail on the First Amendment right to videotape officers carrying out their duties in public. Lipez’s response to that argument: “This terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment’s protections in this area.”

He concluded 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.”

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