First Circuit Panel Says There’s a Clear Constitutional Right To Openly Record Cops

[mick silver]

http://www.theagitator.com/2011/08/26/first-circuit-panel-says-theres-a-clear-constitutional-right-to-record-cops/

[mick silver]

First Circuit Panel Says There’s a Clear Constitutional Right To Openly Record Cops.
Friday, August 26th, 2011

As he was walking past the Boston Common on the evening of October 1, 2007, Simon Glik caught sight of three police officers — the individual defendants here — arresting a young man. Glik heard another bystander say something to the effect of, “You are hurting him, stop.” Concerned that the officers were employing excessive force to effect the arrest, Glik stopped roughly ten feet away and began recording video footage of the arrest on his cell phone.

After placing the suspect in handcuffs, one of the officers turned to Glik and said, “I think you have taken enough pictures.” Glik replied, “I am recording this. I saw you punch him.” An officer1 then approached Glik and asked if Glik’s cell phone recorded audio. When Glik affirmed that he was recording audio, the officer placed him in handcuffs, arresting him for, inter alia, unlawful audio recording in violation of Massachusetts’s wiretap statute. Glik was taken to the South Boston police station. In the course of booking, the police confiscated Glik’s cell phone and a computer flash drive and held them as evidence.

The charges were dropped. But Glik sued for violations of his civil rights. The First Circuit ruled today that the officers are not protected by qualified immunity. From the ruling:

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.”…

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. 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 First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press….

In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”). 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.”

A couple things, here. First, it’s a pleasant surprise to see a ruling this clear and forceful in a civil rights/qualified immunity ruling, as opposed to a challenge to a criminal conviction. The opinion not only states that there’s a First Amendment right to record cops, but that said right is firmly established, and that the cops should have known that it’s firmly established. That’s about as complete a repudiation of Glik’s arrest as he could have hoped for.

Second, while I’ve only had time to quickly read the opinion online, I do find some possible cause for concern. From what I can tell, the opinion doesn’t strike down the wiretapping law, or even its application in the context of recording cops, so much as find that Glik wasn’t in violation of the law. The opinion’s discussion of Glik’s Fourth Amendment rights, for example, spends a lot of time pointing out that Glik was clearly recording the cops openly, while the Massachusetts law only bars the surreptitious recording of cops. It would have been nice for the court to come right out and say either way whether the Massachusetts law itself passes First Amendment muster. But it didn’t, I guess because it didn’t need to. The opinion says Glik clearly wasn’t violating the statute, which means his arrest was a clear violation of his rights. If he had been recording secretly, and were arrested for that, I’d imagine the cops probably would have been granted immunity. Though even then, unless Glik was challenging an actual conviction as well, the court still wouldn’t necessarily need to uphold or strike down the law itself.

The strong language in the portion of the ruling pertaining to the First Amendment claim suggests that the court might strike down the law if given the opportunity. But it’s at least a tiny bit worrisome that the opinion doesn’t go to the trouble of coming right out and saying as much in the next section. A more thorough repudiation of the law would have been preferable for a couple reasons. First and foremost because I think the First Amendment protects the right to surreptitiously record on-duty cops. If you’re recording a cop beating the hell out of someone, it isn’t difficult to see why there might be some problems with a law that requires you to make it obvious to the cop that you’re doing so. Second, if the Massachusetts law is upheld, it’s going to create disputes about what constitutes plain sight, what is surreptitious, and whether a jury should believe the cop’s or the citizen’s account of where the camera was held while it was recording.

Not to be a complete downer on what is really a pretty great decision, but the other thing to keep in mind is that the current Supreme Court lineup is awfully fond of qualified immunity. It’s far from clear that they’d uphold this ruling. I do imagine that they will address the issue fairly soon. It will be interesting to see if that comes in the form of a challenge to an actual conviction, or in a civil rights claim for wrongful arrest.

[gunDriller]

if they're public servants - we have the right to record them.

or maybe they're not public servants ? they're private servants ?


a lot of cops behave as if they serve private special interests.

[midnight rambler]

There's no such thing as a 'constitutional right'!!!

Anyone using that term is trying to trap you!!!

[Ares]

There's no such thing as a 'constitutional right'!!!

Anyone using that term is trying to trap you!!!


Quoted for truth. Your rights are god given, the constitution in theory is supposed to limit government from trampling them. In recent practice however that doesn't appear to be the case.

Sooner or later the peoples only recourse will be to defend their rights with their weapons as the courts in a general rule of thumb do not side with the people.

[midnight rambler]

Quoted for truth. Your rights are god given, the constitution in theory is supposed to limit government from trampling them. In recent practice however that doesn't appear to be the case.

Sooner or later the peoples only recourse will be to defend their rights with their weapons as the courts in a general rule of thumb do not side with the people.

The reason the courts do what they do is that they view the moronic peasants as 'U.S. citizens' (14th Amendment citizens) who are deserving of 'constitutional rights' (code for 'civil rights', i.e. 'rights' granted by the govt.)

A few months back I was in court and the judge advised me that I deserved 'constitutional rights' - I quickly objected and corrected him saying, "there's no such thing as 'constitutional rights'."

[Ares]

The reason the courts do what they do is that they view the moronic peasants as 'U.S. citizens' (14th Amendment citizens) who are deserving of 'constitutional rights' (code for 'civil rights', i.e. 'rights' granted by the govt.)

A few months back I was in court and the judge advised me that I deserved 'constitutional rights' - I quickly objected and corrected him saying, "there's no such thing as 'constitutional rights'."

Continue the story, I'm interested to hear how the judge responded.

[po boy]

Continue the story, I'm interested to hear how the judge responded.

I would just about guarantee he lost with an argument on citizenship, unless he was telling the judge he wasn't a citizen of the US.

[midnight rambler]

Continue the story, I'm interested to hear how the judge responded.

The judge kept right on going despite my objections that I was absolutely NOT a 'US citizen' and that therefore the jurisdiction of the court was foreign to me (the 14th Amendment argument) being that everyone in the court was a 'US citizen'. It's currently at the appellate level where they're trying to trick me into administrative jurisdiction (in order to get the court record for the appeal the state's court reporter wants $852(!!!) in Federal commercial paper in the form of a cashier's check or MO [I offered to PAY in the form of gold or silver coins of the US of A] or attest that I'm 'indigent' [i.e. being a pauper and therefore having no rights] via an affidavit). IOW, the court is trying to get me to assent to either fraud or perjury.

[po boy]

The judge kept right on going despite my objections that I was absolutely NOT a 'US citizen' and that therefore the jurisdiction of the court was foreign to me (the 14th Amendment argument) being that everyone in the court was a 'US citizen'. It's currently at the appellate level where they're trying to trick me into administrative jurisdiction (in order to get the court record for the appeal the state's court reporter wants $852(!!!) in Federal commercial paper in the form of a cashier's check or MO [I offered to PAY in the form of gold or silver coins of the US of A] or attest that I'm 'indigent' [i.e. being a pauper and therefore having no rights] via an affidavit).

I hope you are heard. trying to get a jury of your peers is going to be impossible as they are all members of the state. Been there.

[po boy]

Just wondering MR what did you plea?

[midnight rambler]

Just wondering MR what did you plea?

How can one enter a plea where the bench isn't right (not the correct jurisdiction)?? To do so is to only play along. (one doesn't "refuse" to enter a plea, one advises the court that one is unable to enter a plea in a court that lacks lawful jurisdiction under the law of the land) I advised the court that since the court lacked lawful authority I could not and would not participate.

[po boy]

How can one enter a plea where the bench isn't right (not the correct jurisdiction)?? To do so is to only play along. (one doesn't "refuse" to enter a plea, one advises the court that one is unable to enter a plea in a court that lacks lawful jurisdiction under the law of the land) I advised the court that since the court lacked lawful authority I could not and would not participate.

Did the judge enter a plea of "not guilty" for you? If so, did you object and plead "non assumpsit by way of confession or avoidance"?