A Boston lawyer suing the city and police officers who arrested him for using his cell phone to record a drug arrest on the Common won a victory today when a federal appeals court said the officers could not claim "qualified immunity" because they were performing their job when they arrested him under a state law that bars audio recordings without the consent of both parties.
In its ruling, which lets Simon Glik continue his lawsuit, the US Court of Appeals for the First Circuit in Boston said the way Glik was arrested and his phone seized under a state wiretapping law violated his First and Fourth Amendment rights:
The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative. It is firmly established that the First Amendment's aegis extends further than the text's proscription on laws "abridging the freedom of speech, or of the press," and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, "the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw." ...
Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs."
The court noted that past decisions on police recording had involved fulltime reporters, but said the First Amendment does not apply just to professional news gatherers.
Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. 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. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.
The court continued that while exercise of these rights does come with limits in certain circumstances, an arrest on the Boston Common, "the oldest city park in the United States and the apotheosis of a public forum," is not one of them.
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 Complete ruling, Glik v. Cunniffe | 99.42 KB |
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Comments
I'm not talking about good arrests
By Pete Nice
Sun, 08/28/2011 - 8:43pm
I'm talking about boring things like gathering evidence and other routine situations that wouldn't make interesting videos.
And many people in the military and police departments are the same. They all chose to do what they do, and many of them think they are better than they are, and many choose those jobs because they are both jobs that you don't need a college degree to do.
And give me a break about "heroic acts".
If any person, cop or not risks their life to help someone else, they can be considered a hero. It is the act that makes you a hero, not your job title.
Are you telling me that we shouldn't give out medals of honor for soldiers because they are just doing their job?
Recording police
By I am frog
Sun, 08/28/2011 - 10:46pm
So Pete, I gather that so long as Mr. Bystander with the camera isn't talking, yelling, grabbing, pushing or touching you while you're investigating a serious crime, you're OK with him recording you. Am I correct? And it seems to me that knowing or not knowing "what is going on" has no bearing whatsoever on a citizen's right to free speech, symbolized in this case by his use of a recoding device in public. Right? If you fall back on the lame excuse that because you do not consent to such a recording it is therefore "illegal surveillance" or an "illegal wiretap (huh??), then surely if I decline to be videotaped by the cops any recording made of me is likewise illegal, yes? Anxiously awaiting your reply....
Sure I am ok with that.
By Pete Nice
Mon, 08/29/2011 - 10:36am
People record the police all the time and I have been recorded. Not a big deal. If there was a dead body or some evidence that shouldn't be recorded for the public to see before the scene is processed, the police may have a right to sieze videotape at a scene. That would be a rare case.
And yes, you have the right to refuse to be audiotaped by the police or anyone without a warrant. Anytime you are videotaped or audiotaped by the police, they make you sign a waiver. Many statements by defendents have been thrown out of court because they were audiotaped without their consent. You see this for the most part when people call recorded 911 lines and incrimniate themselves when the dispatch doesn't tell them they are being recorded, OUIL arrests and bookings where the defendent wasn't advised of the audio recording, or interrogations and interviews where the suspect wasn't aware of the taping (they are supposed to sign a waiver for bookings and interrorgations.)
Pete - I'm not sure where
By anon
Mon, 08/29/2011 - 1:34pm
Pete - I'm not sure where you're from, but 911 lines and radio conversations with officers in the field are recorded as a matter of course where I'm from (MN). There are many reasons for this, but mostly as evidence in liability cases (to prove dispatchers followed appropriate procedures) as well as re-constructing events following an incident.
In local holding facilities here, cameras are everywhere and are obvious to anyone that can turn their head. Patrol cars have dash-cams that record audio from a mic the officer is wearing as well as ambient audio from inside the vehicle. As soon as you're arrested, you should expect to lose all privacy.
Personally, I would expect ALL conversations with law-enforcement, including 911 calls, to be used as potential evidence regardless of the ability or foresight to have such conversations recorded. An officer's testimony in just about any case would be considered overwhelming evidence. Any audio or video recording would simply be icing on the cake.
Additionally, regarding the high-level discussion of citizens recording officers while on-duty, police officers are granted certain, limited elevated privileges in order to do their job. In exchange, they are expected to uphold the highest standards and use those privileges responsibly. Citizens can and should verify the behavior of officers meets or exceeds those high standards. They are already recorded by their own equipment while on-duty. As a result, it is unreasonable to expect a citizen to stop recording an on-duty officer for any reason so long as they are not interfering with the officer's job.
Yes they are recorded.
By Pete Nice
Mon, 08/29/2011 - 6:01pm
But they usually tell you that you are being recorded before you can say something. That gets you around the "secret" audiotaping. But the audiotaping and evesdropping by police can be an issue with statments made by those under arrest (incriminating statements over the phone to a 3rd party, before miranda statements that are made in a non-custodial situation, after miranda but not during an interview, etc, etc)
The videotaping is different.
When you are arrested, you lose some privacy, but laws are set up to protect you even after you are arrested for various reasons.
I agree with what you are saying though.
Pete, here is the comment you MEANT to write
By Jay Levitt
Mon, 08/29/2011 - 7:21am
I'm glad to see the court's resolution in Glik. Bad cops (who try to make up things to cover up their own incompetence) spoil the public's trust in the rest of us. This decision doesn't affect good honest cops who do the right thing, and it protects citizens from the losers that shame my badge.
Sure.
By Pete Nice
Mon, 08/29/2011 - 10:31am
But I never read the initial Gilk report, and I didn't see what happened.
But people have the right to record people in public for the most part yes.
That's a completely different
By Anderson
Sat, 12/03/2011 - 6:34pm
That's a completely different story. If the person is obstructing a police officers ability to perform maneuvers and/or safely contain the suspect then it is the recording citizens fault. However, what says you about incidents where police officers approach a recording citizen? Or one that is sufficiently far away. I have rarely seen or heard of a video where a police officer first says, "Please back away from the scene." Instead, when you see a controversial viral video of a police officer's misconduct you hear them shouting for people to stop recording. Why stop recording if you are not in the way?
Also in most videos the individual being arrested is actually begging for someone to witness the injustice applied to their person. It would also be a different matter if the individual being arrested angrily shouts at the recorder to stop filming, those being arrested should have the right to not be subjected to video recordings but not civil servants.
Also American citizens have the right to observe civil servants such as that in the U.S. Congress/court. What right do police officers have to not include themselves?
One way rights
By Don Seten
Tue, 08/30/2011 - 2:51pm
The police videotape you without permission with their dashboard cam whenever you are pulled over. In Sioux Falls, SD, they record conversations you have with them while sitting in their sqaud car, but do not inform you that you are being recorded. It is reasonable that the police should want to collect information related to criminal activity, and that they should want to record things as they happen to protect themselve from false accusations.
What is unreasonable is that they don't inform you that you are being audiotaped. What is also unreasonable is that they don't want us, the public at large, taping their actions to protect us from any wrongdoing or excesses on their part.
They honestly believe that the freedoms in our country should run one direction only - to their benefit.
Don Seten
This isn't South Dakota
By Pete Nice
Tue, 08/30/2011 - 4:57pm
Police Departments in MA are bound by US Supreme Court decisions like Miranda, Gates, etc.
In MA, departments inform you that you are audiotaped, mostly because of the wiretapping law, but also because of Miranda like issues.
Dancing banana party time!
By J
Fri, 08/26/2011 - 5:27pm
Dancing banana party time!
we are filmed daily
By anon
Fri, 08/26/2011 - 10:19pm
Most of us are filmed daily by unknown entities
why can't they be subject to the same scrutiny
It would make me feel safer If they had no problem with being recorded, it would ensure they are doing their job correctly
Jury Rights, the Right to Gather Exculpatory Evidence...
By Jake Witmer
Sat, 08/27/2011 - 3:23am
Google "The War On Cameras." If we lose the right to video record our government masters in public, then we lose all chance of returning the country to freedom. Look at hellholes like Thailand, China, and Singapore, where there are no jury trials, and you can be sentenced to death for victimless crimes (because America exported the drug war it created). The cops and politicians already have what amounts to absolute power, with the unconstitutional IRS, DEA, ATF, FDA, EPA, etc...
America is a grotesque caricature of its former, proper, Northern self. (The South always was a backwards slave-state.)
The pathway back to a free America is to spread a knowledge of jury rights among the citizen jury (everyone over 18). The best way to do this is pamphleteering in front of courthouses. If you cannot videotape the goons who are sent out to tell you to "shut up" or "you can't be doing this here," then you have no freedom at all. Such goons are sent out to violate the speech rights of the pamphleteers, 100% of the time.
So, if you can't take a video of the cops violating your rights, who do you think the jury will believe? You, or the man in blue?
The jury members were all trained for 12 years in the government youth propaganda camps to worship the police, judges, and prosecutors. (Plus, the prosecutor hand-picked the jury using "voir dire" jury selection, that was originally instated to help Northern judges enforce the Fugitive Slave Law, so the jury is not a constitutional jury.) ...They've probably never encountered a thinking person before. So, unless you have videotape of the cops breaking your camera, you're not only going to be arrested, you're going to jail. This is the result of the grotesque prohitibitions on videotaping government employees.
If you want to be a slave, allow IL to hold onto its law against videotaping government employees. It will only take one State to allow tyranny to gain a foothold.
Pamphleteering may be best...
By FeRD
Sat, 08/27/2011 - 12:29pm
OK, but... Surely, hyperbolic and vaguely tin-foil-hatty rants on web comment forums must also have their uses, right?
watching those in charge of watching us
By Craig Webb
Sat, 08/27/2011 - 12:31pm
http://www.youtube.com/watch?v=Sed8IjdXdGk Good news and more is needed on this front
upload technology
By Craig Webb
Sat, 08/27/2011 - 12:43pm
This is also why we need to prevent governments from blocking technology that can be put in hand helds that will automatically upload your images. Making it futile for them to break your camera/phone/recorder. It's in the cloud brother!
auto upload
By anon
Wed, 08/31/2011 - 12:32am
Google plus android application allows just that. could also create a "hangout" allowing everyone in your circles to watch it live in real time. Protecting that ability is extremely important as you said.
Misleading headline; statute not found to be unconstitutional
By dirtywater77
Mon, 08/29/2011 - 1:15am
The headline to this article currently reads: "Court says state law used to ban recording of police officers in public is unconstitutional."
I read through the whole ruling. I don't see anywhere where the court concludes that the Mass. wiretapping law (which deals with audio but applies to audiovideo recordings) is entirely unconstitutional. In fact it concludes that the wiretapping law didn't even apply to this case, because the law prohibits secret audio recordings, and Glik's recording was made in full view of the officers, in a manner such that the officers were on notice that they were being audiotaped.
The court concludes that the arrest was unconstitutional, because it was made without probable cause and because it violated Glik's First Amendment rights.
Based on the court's comments about the First Amendment right to gather news and information, I suppose this decision could narrow the circumstances in which the wiretapping law can be used to prosecute someone who records a police officer. For example, IANAL but I think this decision might get Hyde off the hook. (The Massachusetts Supreme Court found that he violated the wiretapping law when he secretly audiotaped his conversation with a police officer during a traffic stop.)
However, even if that were true, I don't think it's right to say the statute has been found unconstitutional; rather, the court would just be saying that it is unconstitutional to apply the statute to certain situations such as Hyde.
+1, Informative
By Jay Levitt
Mon, 08/29/2011 - 7:17am
n/t
You're right; headline changed
By adamg
Mon, 08/29/2011 - 10:03am
The court was not ruling on the constitutionality of the state wiretapping law in general. It was ruling in a case involving the application of that law in a public setting (and technically, the ruling only means the police in the case will have to face Glik's lawsuit, rather than having it dismissed because it involved something they did while on duty).
Robert Ambrogi, a Massachusetts media lawyer, discusses the ruling, says: "The 1st Circuit's decision reads like a textbook on the First Amendment."
You are correct, and article is misleading in another place also
By Micheal
Fri, 09/02/2011 - 10:51pm
To dirtywater77 -- You are absolutely correct, and you seem to be one of a very few that have actually read the law: The Massachusetts law only prohibits SECRET recording. It does not require consent.
The article says, incorrectly, that it "requires the consent of both parties". That is the way the law is always described by those who have not read it. And it was applied that way once again - wrongly - by the Police Chief in Tisbury MA just a week ago when he ordered an arrest for recording.
If these police officers are
By Ryan
Thu, 03/15/2012 - 10:36am
If these police officers are trained perfessionals and are suppose to be able to take control of any situation why do they have to use brutality when dealing with individuals. Most of the time the people record because their friend is being beat or something is going on that shouldnt and the police take the phone to delete the evidence that shows them using force against another individual when it was not necassary. Everyone should have the right to video tape a police officer.
Sheeple
By Josh
Tue, 05/01/2012 - 2:54pm
In a city that has video camera's everywhere filming the public; the cops thought we don't have the right to film them back? Our rights are being taken away and tested every day; i just learned that MA is profiling motorcyclists by setting up "biker" only check points to check stickers, pipes, helmets etc. Isnt that what an inspecition sticker is for? Nope, just an excuse to pull someone over without cause! Meanwhile cops are shooting each other in front of restaurants, getting arrested on child porn (2 days ago) police brutality etc. etc. No wonder they don't want us filming them; along with the government, the cops are the biggest gang around!
You could clarify this a lot...
By anon
Wed, 05/02/2012 - 10:41am
... by taking off the table the question of whether the person being recorded is a police officer, on the public payroll, etc., and simply reaffirm the well-established right of the public to take photographs and audio / video recordings of anything that is plainly visible or audible from a place to which the public has a right of access.
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