Writing for a unanimous three judge panel of the United States Court of Appeals for the First Circuit,Â Judge Kermit Lipez issued a well-reasoned 24 page opinion in Glik v Cunniffe regarding the right of citizens to record police officers in the discharge of their duties in a Â public place.
While walking through Boston Commons in October 2007, Massachusetts criminal defense attorney, Simon Glik, observed three Boston police officers attempting to arrest a suspect. After hearing another bystander say â€œyou areÂ hurting him, stopâ€ and being concerned that the police were using excessive force GlikÂ began to record the incident on his cell phone camera from about ten feet away. Once the suspect was in handcuffs one of the officers told Glik â€œI think you have taken enough pictures.â€ When Glik continued to record another officer asked Glik if he was recording audio. When Glik said yes he was handcuffed and arrested by police. The charges were unlawful audio recording in violation ofÂ Massachusettsâ€™ wiretap law, disturbing the peace and aiding in the escape of a prisoner. After his arrest Glik filed a complaint with internal affairs regarding the incident. The Boston Police â€œdid notÂ investigate his complaint or initiate disciplinary action against the arresting officers.â€
In February 2010, Glik, represented by the Massachusetts chapter of the ACLU, filed a civil right complaint in the United States District Court for the District of Massachusetts against the three arresting officers as well as the City of Boston under 42 U.S.C. Â§ 1983 for violations of his First and Fourth Amendment rights. The complaint also alleges state-law claims under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, Â§ 11I, as well as malicious prosecution. The defendants moved to dismiss under FRCP 12(b)(6) for failure to state a claim for which relief can be granted and because the officers were entitled to qualified immunity. At a motion hearing the district court denied the defendantâ€™s motion, stating that â€œin the First Circuit . . . this First Amendment right to publicly record the activities of police officers on public business is established.â€ In its decision the First Circuit reasoned that, given the facts in Glik, since â€œthe qualified immunity doctrine â€˜balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably;â€™ â€˜a reasonable defendant would have understood that his conduct violated the plaintiff[â€™s] constitutional rights.â€™â€
The City of Boston appealed this ruling on behalf of its officers (See: Â Cityâ€™s Brief andÂ Â ACLU Brief; as well as two amicus briefs: Center for Constitutional Rights and Reporters Committee for Freedom of the Press).
According to the Court of Appeals, this case centered upon a narrow First Amendment question: â€œis there a constitutionally protected right to videotape police carrying out their duties in public?â€ The answer was an unambiguous and resounding: yes. In its analysis the Court noted that the First Amendmentâ€™s protection extends beyond the prohibition against governmental abridgment of freedom of speech, or of the press. Such protection â€œencompasses a range of conduct related to the gathering and dissemination of information.â€
Â The opinion cites cases where it was â€œwell established that the Constitution protects the right to receive information and ideasâ€ and that â€œthere is an undoubted right to gather news â€˜from any source by means within the law.â€™â€ Pointing to its previous recognition that â€œthe videotaping of public officials is an exercise of First Amendment libertiesâ€ the Court observed that where the â€œstate has a special incentive to repress opposition and often wields a more effective power of suppression;â€ the same can be said of police officers, â€œwho are granted substantial discretion that may be misused to deprive individuals of their libertiesâ€ Because Glikâ€™s activities were clearly protected by the First Amendment, the officers had no authority to stop them and therefore are not entitled to protection under qualified immunity.
Â The three judge panel went further by finding that these First Amendment protections applied to both the press and the public in that â€œthe publicâ€™s right of access to information is coextensive with that of the press.â€ Judicial notice was also taken ofÂ â€œthe 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.â€
The Court also points out that the police â€œare expected to endure significant burdens caused by citizensâ€™ exercise of their First Amendment rightsâ€ in the nature of â€œverbal criticism and challenge directed at police officers.â€ And goes on to state â€œthe same restraint demanded of law enforcement officers in the face of â€˜provocative and challengingâ€™ speech must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.â€ Therefore, â€œsuch peaceful recording of an arrest in a public space that does not interfere with the police officersâ€™ performance of their duties is not reasonably subject to limitation.â€
In reviewing a long line of similar cases, the court also recognized â€œthe fundamental and virtually self-evident nature of the First Amendmentâ€™s protectionsâ€ of the â€œright to film government officials or matters of public interest in public space,â€ concluding that â€œthe state of the law at the time of the alleged violationâ€ provided a reasonable police officer in a similar situation with â€œfair warningâ€ that their course of conduct in arresting and charging Glik was clearly unconstitutional. The officers, therefore, were not entitled to qualified immunity.
The Court also concluded that the police also infringed upon Glikâ€™s constitutional right against unreasonable search and seizure when they seized his cell phone camera and his body (arrest). â€œGlikâ€™s recording was not â€˜secretâ€™ within the meaning of Massachusettsâ€™s wiretap statute,â€ because his â€œplain sightâ€ use of his cell phone to record the officers (who also Â â€œmade clear through their conduct that they knew Glik was recording themâ€) â€œconstitutes adequate objective evidence of actual knowledge of the recording.â€ Once again the Court affirmed the district courtâ€™s order denying the officersâ€™ claim of qualified immunity from Glikâ€™s Â Fourth AmendmentÂ claim because in a similar situation a reasonable officer would have known that probable cause forÂ arrest under the wiretapping law was absent.
On September 13, 2011 a three judge panel of the United States Court of Appeals for the Seventh Circuit heard oral argumentsÂ Â inÂ Â ACLU v Alvarez, during whichÂ the well-respected jurist, Richard A. Posner,Â pointedly and often antagonistically, questioned the right to privacy in public. ThisÂ appeal of a lower court dismissalÂ involves issues similar to Glik in that Massachusetts and Illinois both have wiretapÂ statutes that make it a crime to record police. The difference between the two is that in Massachusetts â€“ audio may not be secretly recorded; while in Illinois â€“ audio may not be recorded without the consent of all parties (it makes no difference whether the recording is being done secretly or openly).
The other significant difference is that Glik is a federal civil rights lawsuit seeking compensatory and punitive damages against the officers for violating his constitutional rights and against the City of Boston for its failure properly train, supervise, investigate and discipline its officers. In the civil rights action in Alvarez the ACLU is â€œchallenging the constitutionality of the Illinois Eavesdropping Act [ ], as applied to the audio recording of police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful.â€ They are seeking a declaratory judgment and a preliminary Â injunction against the application of the eavesdropping law as it violates the First Amendment.
The National Press Photographers Association joined with the Illinois Press Association, the Reporters Committee for Freedom of the Press, the American Society of Newspaper Editors, the Association of Capitol Reporters and Editors, the Citizens Media Law Project, the Radio-Television Digital News Association and the Society of Professional Journalists in an amicus curiae brief in favor of the ACLUâ€™s position.
In a related case an Illinois woman charged under the same statute was acquitted on August 25, 2011 by a Chicago jury on charges that she secretly recorded her conversation with Chicago police officers without their permission. Tiawanda Moore was found not guilty by jurors who deliberated for less than an hour, thus avoiding a possible 15 year prison term. According to the Chicago Tribune, Ms. Moore had recorded her conversation with two internal affairs officers when she became concerned that they were trying to persuade her to drop a sexual harassment complaint against another officer. It is believed that a key element in Mooreâ€™s defense centered upon an exception in the law that permits citizens who have a â€œreasonable suspicionâ€ that a crime is being committed to make such secret recordings. Jurors were able to listen to portions of the recording. After the Â verdict one commented â€œthe two cops came across as intimidating and insensitive.â€ “Everybody thought it was just a waste of time and that (Moore) never should have been charged.â€
In comments made after the arguments in Alvarez, Harvey Grossman, legal director for the ACLU of Illinois said â€œthere’s nothing private about a police officer doing his duties on the public wayâ€ â€œThe way that they police and conduct themselves is a matter of public importance.â€
One would only hope that the Seventh Circuit agrees with him and the First Circuit.