Three years ago, in Glik v. Cunniffe, the U.S. Court of Appeals for the 1st Circuit upheld a man's First Amendment right to record an arrest on Boston Common. Last week, in Gericke v. Weare, the court upheld a woman's First Amendment right to record a traffic stop in Weare, New Hampshire. The combination of these two decisions is a powerful rebuke to cops who continue to harass people with bogus wiretapping charges when they dare to capture images or sound of police encounters on their cellphones.

In the 2011 case, Simon Glik was charged with violating Massachusetts' broad wiretap law, which makes it a crime to "willfully commit[] an interception…of any wire or oral communication," after he recorded an arrest in which he believed police were using excessive force. The 1st Circuit ruled that "a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment." Hence "Glik was exercising clearly established First Amendment rights in filming the officers in a public space."

In the case decided last week (which Brian Doherty noted that day), Carla Gericke took out her cellphone after police pulled over her friend, whose car she was following to his house, and announced that she was recording the stop. The 1st Circuit ruled that the First Amendment right recognized in Glik also applies to traffic stops, although it may be reasonably restricted in that context to protect the safety of officers and the public. In this case, Gericke says police never asked her to stop recording or to leave the scene; they just arrested her afterward. "Based on Gericke's version of the facts," the court said, "she was exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area."

New Hampshire's wiretap statute, unlike the Massachusetts law, applies only to situations in which the people who are recorded have a reasonable expectation of privacy. The 1st Circuit noted that police officers performing their duties in public have no such expectation, especially when the person recording them announces her intention to do so. Furthermore, because of a technical glitch, Gericke did not actually capture any video of her friend's detention. These facts help explain why local prosecutors ended up dropping the charges against Gericke. The cops who arrested her were so keen to punish her perceived disrespect that they not only violated her constitutional rights; they misapplied the statute.

What's especially significant about both of these cases is that they allowed lawsuits against the police officers themselves to proceed. The court decided that the officers did not qualify for immunity because the rights they violated were clearly established at the time of the arrests. Cops who continue to mistakenly believe they have a right not to be recorded while on duty should understand that they cannot hide behind their real or professed ignorance of what the Constitution requires.

In a case that J.D. Tuccille noted a couple of weeks ago, police in Chicopee, Massachusetts, charged Karen Dziewit with wiretapping after she recorded her own arrest for disorderly conduct and possessing an open container of alcohol. Unlike Glik and Gericke, who openly recorded the cops, Dziewit did so surreptitiously, but that detail should not affect the constitutional analysis. The 1st Circuit recognized a First Amendment right to "film government officials, including law enforcement officers, in the discharge of their duties in a public space." That description clearly applies to the officers who arrested Dziewit. The fact that they did not realize she was recording them does not matter. Officers should take it granted that people may be recording them whenever they are performing their duties in public, and if they did it probably would improve their behavior.

[via Ars Technica]