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Mass. Court Says Constitution Protects Filming On-Duty Police
Even in a country and a world where copyright can be claimed as an excuse to prevent you from taking a photo of a giant sculpture in a public, tax-paid park, and openly recording visiting police on your own property can be construed as illegal wiretapping, it sometimes seems like the overreach of officialdom against people taking photos or shooting video knows no bounds. It's a special concern now that seemingly everyone over the age of 10 is carrying a camera that can take decent stills and HD video. It's refreshing, therefore, to read that a Federal Appeals Court has found unconstitutional the arrest of a Massachusetts lawyer who used his phone to video-record an arrest on the Boston Common. (Here's the ruling itself, as a PDF.) From the linked article, provided by reader schwit1: "In its ruling, which lets Simon Glik continue his lawsuit, the U.S. Court of Appeals for the First Circuit in Boston said the wiretapping statute under which Glik was arrested and the seizure of his phone violated his First and Fourth Amendment rights."
This ruling is in line with Comm v. Hyde. There is NOTHING new about this ruling, at least regards the recording issue. There is nothing wrong with OPENLY recording cops in MA or anyone else who are speaking in normal voice in public. By being in public, they are forfeiting their privacy. This is inline with 4th Amendment thinking.
In technical terms, the above is 3rd party recording that is not considered 3rd party eavesdropping because there is no REP (reasonable expectation of privacy).
Now, what this ruling DOES bring as new is the cops who think that they have veto power over your OPEN recording of them are now on notice, in federal court you have zero shelter from the liability of arresting someone because you don't like that they are recording you in public. This is new. The cops are not being granted qualified immunity and are on the hook for the damages of denying Glik his rights by improperly arresting him. That is a step in the right direction.
The problem here is if you are recording your interaction with a cop, what does that cop have to do to stop your recording? "Detain" you, that is what. Once they do, for their "safety" of course, they now control your recording equipment and can turn it off. Nothing in the above ruling changes this. They can do this, beat you to a pulp, or just ignore you to illustrate both extremes, and there will be no record of it.
What has not changed is Comm v. Hyde which makes 2nd party recording a privacy issue. This is not the case in 38 other states but here in MA, people are presumed to have a REP right from secret recording even when the recorders are privy to what is being said. That is absurd if you dissect it, but that is where Hyde dropped us. So for an example, if party A has a conversation with B, A can't record it because B supposedly has a REP privacy right yet A has heard everything B said. They were having a conversation for christ's sake. B gave up their privacy to the statements once they engaged in said conversation. So A can detail the conversation to whomever will listen but if B denies what was said or that the conversation even took place, it becomes a he said, she said situation. Now, who does this protect? It protects B. It protects liars, cheats and thieves. Because it allows them to lie about what took place. There is a line in Hyde where the SJC basically acknowledges this by stating to allow surreptitious recording of cops will allow the citizens to monitor and find corruption.
Who are you? The new #2 Who is #1? You are #617565. I am not a number, I am a free man! Muhahaha.
They'll never permit that to happen. No, it'll get settled with a victory in some lower level court that won't matter. You can't appeal if you win.
You should have read the fine article. It is amazingly strong. This was not about a guy being arrested and then found innocent in court. This is about a guy suing the police for being arrested and winning the case.
First, the judge said that the right to film a police officer, or any other official, while doing their duty in a public state is so evidently guaranteed by the First Amendment that the judge doesn't even have to refer to any case law. And it is so clearly legal that any police officer arresting you for it is not just making a mistake, but breaking the law.
Second, the judge said that the Massachusetts wiretapping law is about _secretly_ recording. Interestingly, it has nothing to do with the police's right to privacy or not, and nothing to do with consent to the recording, but the only important thing in Massachusetts law is whether the recording is done secretly or not. So a secret recording could be illegal. An open recording, like this man did, with a phone in open view of the police men, is absolutely legal. And it is so obviously legal that a policeman arresting you for wiretapping in this situation is not just making a mistake, but breaking the law.
So what we learn: You can record a policeman doing his job in a public place, but you have to do it openly.
You're still off a bit. This case is more recent, circa 2007. It references a 1983 law and cases which brought the law into existence as well as recent cases that drive the point home. but the case comes from actions that happened on October 1 2007.
However, this isn't about whether the cops did wrong or not with this ruling. It's about whether they believed they were in the right at the time of the actions. You see, many law enforcement and government officials have an immunity to prosecution and civil suits if their actions were intended to be lawful but are somehow not. An example of this in action would be a cop speeding with his lights and sirens on to get to an accident scene and render assistance and getting into an accident of his own. He would be removed from liability for the accident and insurance would take care of property damage. But if he was speeding like that to get back to the station for shift change, then he's liable for all the crap you or i would be liable for should be do the same.
So the guy involved filed a suit, the cops said- we have immunity-, the judge said no you do not-, they appealed-, the appeals court said, not only do you not have immunity, there is good reason to believe you knew you were violating the constitutional rights of this kid when you took the actions you did.
The title of this story is a bit misleading. While the appeals court said there is a right to film police in public while on duty, it said so in the respect that the lawsuit against the police can go forward. But on another note, it pointed to where this constitutional right to film the cops has already been well settled by other case law and indicates that any law attempting to suppress it would meet the same problems their claim to immunity met.