by Peter Hoffmann, Attorney, Rains Lucia Stern, PC
Factual and Legal Summary
On the evening of October 1, 2007, Simon Glik was walking past the Boston Common when he witnessed three police officers arresting a suspect. Glik heard another bystander exclaim, “You are hurting him, stop.” Concerned that the officers were employing excessive force, Glik stopped roughly ten feet away and began a video recording of the incident on his cell phone.
After placing the original suspect in handcuffs, one of the officers suggested that Glik had “taken enough pictures.” Undeterred, Glik responded, “I am recording this. I saw you punch him.” At that time, another officer approached Glik and asked if his phone also captured audio recording. When Glik responded to the officer in the affirmative, the officer placed him under arrest for unlawful audio recording in violation of Massachusetts’ wiretap statute.
In addition to the alleged violation of the state wiretap statute, Glik was ultimately charged with disturbing the peace, and aiding in the escape of a prisoner. The Commonwealth voluntarily dismissed the count of aiding in the escape of a prisoner due to a clear lack of probable cause. Thereafter, the trial court disposed of the remaining two charges in granting Glik’s motion to dismiss.
In February 2010, Glik brought suit under 42 U.S.C. § 1983, claiming that his arrest for recording the officers constituted a violation of his rights under the First and Fourth Amendments. The defendant officers moved to dismiss Glik’s complaint, arguing that the allegations of the complaint failed to adequately support Glik’s claims and that the individual officers were entitled to qualified immunity. After hearing arguments from the parties, the court orally denied the defendants’ motion. Following a timely appeal, on August 26, 2011, the First Circuit Court of Appeal affirmed the district court’s decision.
Analysis
While the Court of Appeal acknowledged that an individual’s right to record law enforcement personnel is not without limitations–i.e., reasonable time, place, and manner restrictions–in denying the officers’ defense of qualified immunity, it appears such restrictions are limited to those situations where the recording of the incident interferes with the police officer’s performance of his or her duties.
In reaching this conclusion, the court completed a two-part analysis, establishing that not only were the facts alleged by the plaintiff sufficient to make out a violation of his First Amendment rights, but that the plaintiff’s right to record the officers’ conduct had been “clearly established” prior to the incident.
Despite the existence of two similar cases from different circuits in support of the officers’ argument that the First Amendment right to film was not “clearly established” at the time of the arrest, the court found those cases to be easily distinguishable and unpersuasive. Instead, the court considered a number of cases addressing public figures being recorded in public places, and reasoned:
Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts.
The court’s opinion emphasized that the First Amendment is of particular significance as it relates to government action. Moreover, given the nature of the law enforcement profession–and the potential misuse of authority to deprive individuals of their liberties–the court found that the circumstances set forth in Glik necessitated the recognizing of the right to film police officers engaged in the course of their duties.
Conclusion
While the Circuits may not necessarily agree, and the ruling in Glik does not control here in the Ninth Circuit, it is in the best interest of our clients to presume the existence of a First Amendment right to record officers engaged in the course of their duties, so long as the citizen’s conduct does not interfere with the officer’s performance or jeopardize his or her safety.
Should situations arise where an officer believes a citizen’s conduct no longer falls within Constitutional protections, the officer would be best served to communicate with his or her supervisor before taking action.
