1st Cir: First Amendment protects recording police in pub

The First Circuit found that police officers had violated Simon Glik’s First and Fourth Amendment rights when they arrested him for filming an arrest of someone else with his cell phone.  Moreover, the constitutional rights the officers violated—the right to film officers in public and the right to be free of arrest without probable cause—were clearly established at the time of the arrest. Consequently the officers could not assert defenses of qualified immunity to Glik’s lawsuit against them. Glik v Cunniffe, No. 10-1764, 2011 WL 3769092 (1st Cir., 2011). Judge Lipez, nominated by President Clinton, wrote the opinion, joined by Torreulla (Ford) and Howard (George W. Bush).

Simon Glik was walking through Boston Commons in October of 2007 when he saw three police officers arresting a young man. Concerned about the level of force the officers were using, Glik took out his cell phone and began recording the arrest. One of the officers instructed Glik to stop filming. Another officer asked Glik if his cell phone recorded audio. Glik replied that he was recording audio, and the officer arrested Glik. Glik was charged with, among other things, illegal wiretapping. The charges were later dismissed for lack of probable cause, and in February of 2010, Glik filed a lawsuit under 42 U.S.C. § 1983 in which he alleged the officers had violated his First and Fourth Amendment rights. The officers moved to dismiss the claims on the grounds that they were shielded by qualified immunity. The district court denied the claim of qualified immunity, and the defendants appealed.

Police officers enjoy qualified immunity from claims they have violated Constitutional rights. To determine if qualified immunity shielded the officers here, the court applied a two prong test. First, it inquired whether there was a violation of a constitutional right. Second, it examined whether the right was clearly established at the time of the alleged violation.

The court concluded that “the filming of government officials engaged in their duties in a public place, including officers performing their responsibilities, fits comfortably within” the protections of the First Amendment for the right to receive and impart information. The court noted that the right to film the conduct of officials is an important mechanism for preventing abuses and promoting a well-functioning government. The court acknowledged that reasonable time, place, and manner restraints on recording were permissible. However, Glik’s filming did not interfere with the officers in any way that would have justified the arrest.

The court turned to the question of whether the right to film was clearly established when Glik was arrested. Citing to the First Circuit’s decision in Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) and other decisions, the court noted that these opinions all supported First Amendment protection for recording police in public. None of the cited opinions engaged in a lengthy analysis of the right. The court concluded that this brevity indicated that the right to film is so fundamental and “virtually self-evident” that prior courts found extensive discussion to be unnecessary. The court also distinguished the Third Circuit’s Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010). Kelly involved recording during a traffic stop. Glik filmed openly in a public park and was entitled to much stronger First Amendment protection. The court concluded therefore that the right to film police in public was clearly established and that the officers could not assert qualified immunity.

The next issue presented to the court was whether qualified immunity shielded the defendants from the Glik’s claims of Fourth Amendment violations. First, the court held that the defendants violated Glik’s Fourth Amendment rights by arresting him for violating the state wiretap law without probable cause. The court explained that Massachusetts defines an illegal wiretap as a “secret” interception of a communication without consent. A recording cannot be secret, the court decided, if the recording device was in plain view. That was the case here. The fact that the cell phone Glik used could also have been used to text or take pictures (without audio) did not help the defendants because the facts made it clear they actually knew Glik was recording them. Glik’s recording was not “secret,” and the officers could not have had a reasonable belief that Glik was violating the state’s wiretap law.

The analysis next required the court to decide if the Fourth Amendment right the defendants violated was clearly established. According to the court, “the presence of probable cause was not even arguable here.” Because Glik’s recording was not secret, it was not even “arguable” that the defendants had probable cause to arrest him for illegal wiretapping.

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