The United States Court of Appeals for the First Circuit recently held that police violated the First and Fourth Amendments for arresting a man who recorded officers arresting another individual. The violations were clear and thus the officers were not entitled to immunity.
On October 1, 2007, Simon Glik walked past three police officers arresting a young man in the Boston Commons, a public park in Boston, MA. Glik then heard a bystander remark that the officers were hurting the young man. Glik stopped about ten feet away from the officers, took out his cellular phone, and began to record the scene.
After securing the suspect, one officer approached Glik and told him "I think you have taken enough pictures." Glik replied, "I am recording this. I saw you punch him." The officer asked Glik if the phone recorded audio, and when Glik replied that it did and that he was recording audio, the officer arrested him for violating the Massachusetts wiretap statute. Glik was handcuffed and police confiscated his phone and a computer flash drive. Glik was also charged with disturbing the peace and aiding the escape of a prisoner.
The charge of aiding the escape of a prisoner was voluntarily dropped by the prosecution, while the Boston Municipal Court dismissed the remaining two charges against Glik. The Municipal Court noted that making officers unhappy by recording them in public is not a crime, and that the wiretap statute only applied to surreptitious recordings, while the witnesses agreed Glik had openly made his recording in public and in plain view of the officers.
Glik filed an internal affairs complaint with the Boston Police Department, but they refused to conduct an investigation and no disciplinary action was taken against the officers. Unsatisfied, Glik filed a lawsuit against the officers and the City of Boston in the United States District Court for the District of Massachusetts in February of 2010. The Complaint included claims under 42 U.S.C. § 1983 for violations of Glik's First and Fourth Amendment rights, as well as state-law claims for malicious prosecution and civil rights violations.
The defendants moved to dismiss Glik's complaint, arguing that the officers were entitled to qualified immunity "because it is not well-settled that he had a constitutional right to record the officers." The district court disagreed, concluding that "in the First Circuit . . . this First Amendment right publicly to record the activities of police officers on public business is established," and thus the officers were not entitled to qualified immunity for the arrest.
The defendants appealed the ruling to the United States Court of Appeals for the First Circuit. The court of appeals then reviewed whether Glik's First and Fourth Amendment rights had been violated, and if so, whether the violations were clearly established.
The court of appeals found that police officers had indeed violated Glik's First Amendment right. As the court of appeals explained, filming government officials, including police officers, in public places while they perform their duties conforms to First Amendment principles. Indeed "[g]athering 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.' Mills v. Alabama, 384 U.S. 214, 218 (1966)." The right to observe government officials is particularly strong because, "[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression,'" citing First Nat'l Bank v. Bellotti, 435 U.S. 765, 777 n.11 (1978).
The court of appeals further explained that this is especially true of law enforcement officials because they are granted substantial discretion which, if abused, could deprive individuals of their freedom; thus the observation of law enforcement officials to uncover abuses has a beneficial effect on how the government functions. In fact, the court of appeals noted, numerous federal courts had previously upheld the right to publicly film or photograph public officials and police officers on First Amendment grounds. In some cases, the right was upheld even when the officials or police officers explicitly requested that the observing party cease filming or photographing.
The court of appeals cautioned that "[i]n our society, police officers are expected to endure significant burdens caused by citizens' exercise of their First Amendment rights. Indeed, ‘[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state,'" citing City of Houston v. Hill, 482 U.S. 451, 462-63 (1987).
Although the court of appeals found that there were some limits to the times and places public officials could be filmed, openly filming police officers in a public park did not touch any such limitations. Instead, police officers had violated Glik's clearly-established First amendment rights. As such, "the state of the law at the time of the alleged [First Amendment] violation gave the defendant[s] fair warning that [their] particular conduct was unconstitutional," and the officers were not entitled to qualified immunity. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009).
As Glik was initially arrested for violation of the state wiretapping statute, the court of appeals turned to an analysis of that statute to review the claim of a Fourth Amendment violation. There, the court of appeals found that a reasonably prudent officer would not have believed Glik was in violation of the wiretapping statute. That statute applied only to secret recordings, while the officers admitted that Glik was filming openly and in a public place. Furthermore, the officers knew that Glik was filming, and thus the act was not done secretly.
Therefore, the arrest clearly lacked probable cause, and Glik's Fourth Amendment rights were violated. Since the arrest so obviously violated the Fourth Amendment, the officers were not entitled to immunity from suit for this violation either.
The case, Glik v. Cunniffe et al, can be found here.
