If you pull out your cell phone to make a video of police officers arresting a suspect, are you "secretly recording" them? "No" seems like the obvious answer, but that's precisely the claim that three police officers made to justify their arrest of a Boston man. In arguments before the US Court of Appeals for the First Circuit on Wednesday, the city also denied the man's claim that his First or Fourth Amendment rights had been violated.

The case will be an important test of whether the Constitution protects individuals' right to record the police while they are on duty.

Not so secret

In 2007, a man named Simon Glik witnessed another man being arrested on the Boston Common. After hearing a witness say, "you are hurting him, stop," Glik pulled out his cell phone to document the encounter. When a police officer confronted him, Glik informed the officer that he had witnessed an officer punch the suspect, and acknowledged that he was recording the incident. The officer responded by arresting Glik.

Many states have "one-party notification" wiretapping laws that allow any party to a conversation to secretly record it. But under the strict "two-party notification" laws in Massachusetts, it's a crime to "secretly record" audio communications unless "all parties to such communication" have given their consent. The police arrested Glik for breaking this law. For good measure, they also charged Glik—who did no more than stand a few feet away with his cell phone—with "aiding the escape of a prisoner" and "disturbing the peace."

Glik's wife bailed him out. The charges were eventually dropped or dismissed. With the help of the Massachusetts ACLU, Glik then pressed charges against the officers for false arrest. He argued that the officers should have known that his wiretapping wasn't "secret," given that his cell phone was in plain sight. He also argued that the officers' actions infringed his First Amendment right to record the actions of government officials. And he sued the city for failing to properly train its officers about the law and the Constitution.

The federal district court judge assigned to the case denied the city's motion to dismiss the case, and that ruling was appealed to the United States Court of Appeals for the First Circuit, which heard oral arguments on Wednesday.

"How can that rule make any sense?"

So how can a cell phone held in plain sight make a "secret recording?" In Wednesday's oral argument, an attorney for the city of Boston argued that a recording is secret unless all parties have "actual knowledge" they are being recorded. Because the officers did not notice Glik until after the arrest, the city argued that the recording was being made secretly.

The judges seemed unimpressed by this "actual knowledge" standard. Snapped one: "How can that rule make any sense?" He pointed to a 2001 decision involving a Massachusetts motorist who was prosecuted for secretly recording a traffic stop. In that case, the court said placing the tape recorder in plain sight (instead of hiding it) would have sufficed to make the recording legal.

But Boston argued that a cell phone, with its many functions, is not the same as a single-purpose tape recorder. According to the city, even if the cell phone was in plain sight, the fact that its recording function was activated might still be "secret" for purposes of wiretapping law.

Glik's attorney addressed the judges next, and he heaped scorn on Boston's position. "What more could my client have done?" he asked. "I don't think you should have to shout and interrupt the police officers" to avoid liability, he said.

Moreover, he said, "it would be an absurd interpretation to prohibit plain-view recording." For example, "a tourist couldn't take pictures of their tour on Boston Common. You couldn't record a political demonstration," since not everyone present would be aware that the recording was going on.

More to the point, if that is what the wiretapping statute requires, then it's flagrantly unconstitutional. Glik's attorney pointed to the First Circuit's 1999 ruling in Iacobucci v. Boulter. In that case, the court held that citizens have a First Amendment right to record the activities of public figures on public property.

The war on cameras

The First Circuit's ruling could have broad implications. The United States is in the midst of a heated debate over the legality of recording on-duty police officers. Doing so is unambiguously legal in some states, but under a legal cloud in others. And some police officers have used the threat of arrest to intimidate people into turning their cameras off. The Iacobucci case involved a traditional video camera, but Glik's false-arrest lawsuit gives the First Circuit an opportunity to make clear that the same logic applies to cell phones.

It's always dangerous to try to extrapolate from oral arguments, but it didn't seem like the First Circuit's judges were buying Boston's arguments that wiretapping law could be used to prevent citizens from recording cops with their cell phones. With luck, the next person who records a police officer in Massachusetts will be able to point to the Glik decision as evidence that his actions are protected by the First Amendment.

Listing image by Photo by Toban Black