First Circuit Says You Can Shoot the Police (with Your Cellphone Camera)

by David Milton

In an important decision, the First Circuit recently held that the First Amendment “unambiguously” protects the right to videotape police officers and other government officials carrying out their duties in a public place. In denying qualified immunity to three Boston police officers who arrested attorney Simon Glik for using his cellphone to record them making a violent arrest on Boston Common, the Court found that the right to record public officials was “a basic, vital, and well-established liberty safeguarded by the First Amendment.” Glik v. Cunniffe, 2011 U.S. App. LEXIS 17841, (1st Cir. Aug.26, 2011). The Court also held that officers lacked probable cause to arrest Mr. Glik under the Massachusetts wiretap law, M.G.L. ch. 272, § 99. That statute prohibits only secret audio recordings and since Mr. Glik held his cellphone in plain view, the Court concluded that Mr. Glik’s actions did not even arguably give rise to probable cause under the statute.

Mr. Glik was arrested on October 1, 2007, when he saw three police officers on Boston Common arresting a teenager and using what seemed to be excessive force. Disturbed by what he saw, Mr. Glik videotaped the incident with his cellphone. Although Mr. Glik stood about 10 feet away and did not interfere with the officers, they arrested him and charged him with disorderly conduct, aiding the escape of a prisoner, and violating the wiretap law. The criminal charges were all dismissed as baseless.

Mr. Glik brought a civil rights suit in federal court in Boston, alleging that the arrest violated his First Amendment right to freedom of speech and his Fourth Amendment right to be free from arrest without probable cause. The officers moved to dismiss the suit on qualified immunity grounds, arguing that Mr. Glik’s constitutional right to record the officers was not well-settled. Judge Young denied the motion from the bench, and the officers took an interlocutory appeal.

The First Circuit rejected the officers’ argument that the First Amendment did not clearly protect Mr. Glik’s actions. Writing for a unanimous panel, Judge Lipez found that filming public officials in a public place, including police officers, “fits comfortably” within longstanding First Amendment principles. The Court said that gathering and disseminating information about public officials promotes democracy by ensuring that abuses of power are exposed. The Court noted the particular importance of public scrutiny of the police, whose misuse of their authority carries great potential for harm.

The Court also rejected any distinction between the rights of traditional media to gather news and those of members of the public like Simon Glik. The Court stated, “The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper.”

On the Fourth Amendment, the Court easily concluded that the officers lacked probable cause to arrest Mr. Glik because the wiretap statute prohibits only secret audio recordings. Massachusetts caselaw interpreting the wiretap law, to say nothing of common sense, makes clear that holding a recording device such as a cellphone in plain view is not secret. The Court rejected the officers’ argument that Mr. Glik’s recording was secret because they were supposedly unaware he was recording them with sound. Although the SJC has said that the subject of a recording must have “actual knowledge” he or she is being recorded, it has also said that such knowledge may be inferred from objective circumstances. As the First Circuit recognized, the use of a recording device in plain sight, by itself, constitutes adequate objective evidence of actual knowledge of the recording.

The Court’s broad First Amendment holding suggests that even secret recordings of public officials acting in public might be protected. As stated, the Court found that videotaping government officials serves the fundamental First Amendment purposes of exposing misconduct and promoting the free discussion of public affairs. Not once did the Court describe the right to videotape public officials as limited to recordings made openly, and nothing in the Court’s reasoning turns on this factor. Glik thus provides strong arguments that the Massachusetts wiretap statute would be unconstitutional as applied to secret recordings of the police acting in public.

Glik will also hopefully serve as persuasive authority for the courts around the country that are dealing with cases arising from the epidemic of police attacks on individuals who record them. The case was brought by the ACLU of Mass. and is being handled by Guild lawyers David Milton, Howard Friedman and Sarah Wunsch.

David Milton is an attorney at the Law Offices of Howard Friedman in Boston.