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."

Comments

I really really hope this is appealed

[Anonymous Coward]

All the way to the Supreme Court, and we can have a final ruling that recording public officials in public is, you know, legal.

Re:I really really hope this is appealed

[Smallpond]

If the government thinks it's necessary to record my overseas phone calls me and touch my junk at airports in order to stop terrorism, then the natural conclusion is that the government needs to be equally open. It consists of the same kind of people as me, just as (un)likely to be terrorists. Therefore, I need to see what they are doing. No more secret meetings. No more closed negotiations. No more situations that I can't record what's happening to me. In a democracy we don't have a separate ruling class with different privileges.

Re:I really really hope this is appealed

[interval1066]

Of course. Its ridiculous for any law enforcement official under the jurisdiction of the US Constitution to believe that they can put a stop to people filming them. I know this because years ago I witnessed a cop trying to stop a slowly gathering protest in San Diego, California (I forget what the protest was about). A lawyer happened to be in the crowd and told the cop to back, the individual had an absolute constitutional right to protest, and if the cop persisted he'd be sued, the San Diego Muni Force would be sued, and he would do everything in his power to make sure that the cop was jailed for civil rights violations. Sounds like a typical story of these types but the experience left a big impression on me. After witnessing that I have to believe that citizens do indeed have an absolute right to film any police action. It might take a court to make sure it happens, but that's the nature of the topic in this country.

Re:I really really hope this is appealed

[Oxford_Comma_Lover]

Specifically, the state won't risk applying for a writ of cert on this because it's a bad test case for it. For this to get to the Supreme Court, you'll need either a stupid prosecutor (or one doing the wrong thing institutionally), a set of facts more favorable to the police, or a decision going the other way on the appeals court level.

Re:I really really hope this is appealed

[Oxford_Comma_Lover]

It's still a pretty important statement for the First Circuit to say that the right to film police action in public is *clearly established* First Amendment law. Not only in terms of how the case winds up, but because most cases like this will involve a defense of qualified immunity.

Re:I really really hope this is appealed

[icebike]

All the way to the Supreme Court, and we can have a final ruling that recording public officials in public is, you know, legal.

You don't need it to go that far. I can't see any city or state wanting to contest this much higher, in light of the fact that the ruling was pretty clear. It was after all, just the officers that contested it this far. They didn't have any governmental backing, and the Boston Municipal court had already bitch slapped the officers down and dismissed all charges. I just don't see those guys having the financial backing to go much further.

Unless some other circuit rules contrary, this is the precedent that will be cited country wide.

Great News!

[ohnocitizen]

This is great news, especially since wiretapping statures are commonly used in other states to suppress people's attempts to record police actions.

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

That makes me optimistic, if we see a shift in the law accompanied by the reasonable expectation that *anyone* could potentially be carrying a recoding device, perhaps we will see a moderation in police behavior.

Re:Great News!

[prisoner-of-enigma]

Being a former Marine myself, I can speak on this subject with some experience.

First, Marines are indoctrinated from the very beginning that harming civilians -- aka "collateral damage" -- is something to be avoided as much as is humanly possible. Expecting perfect, rational judgment by everyone, everywhere, all the time, while having bullets zipping past you and RPG's exploding a few yards away is unrealistic, but the deliberate fragging of a civilian is not only frowned upon, it's considered cowardly, dishonorable, and unbecoming of a Marine. Contrary to popular opinion, the U.S. military doesn't want a bunch of bullies running around with rank and weapons. Boot camp exists to weed out the weak *and* the morally questionable types. Some slip through; no system is perfect. But the *intention* is this kind of "person" never makes it to a point where he can be a power-tripping, gun-toting threat to an otherwise-harmless civilian.

That being said, I personally know of many instances in Iraq and Afghanistan where enemy combatants -- not in uniform, thus indistinguishable from civilians -- pretend to surrender, even going so far as to carry white flags. When Marines try to accept their surrender, they drop the flag and open fire, or their buddies open fire from concealed positions elsewhere. The use of women and children as human shields is the norm, not the exception. There are instances where women and children have turned up dead in areas where no Allied forces have operated, yet their deaths are blamed on Allied forces, the 7.62mm bullets in their bodies blamed on Allied troops wielding clandestine AK-47's instead of the 5.56mm NATO rounds in our M4's. It doesn't take a rocket scientist to divine there's probably more than a little "embellishment" coming from an opposition that knows civilian casualties cause all sorts of bad press for Western forces when a sympathetic press picks up and carries such photos without ever bothering to find out the circumstances under which they were obtained.

I agree with you that any Marine, soldier, sailor, or airman who willingly, knowingly, maliciously kills -- or attempts to kill -- an unarmed, non-threatening civilian is deserving of the harshest punishment the UCMJ can mete out and then some. Such actions tarnish all of us and make a difficult mission even harder. That said, do not be so quick to rush to judge the Marine and idolize the reporter. There's a lot more to the story than can be communicated in a headline. Never forget a reporter's best interests are served by stories that generate the maximum amount of controversy, whether that controversy is deserved or not. Unless you were there, in the room, and knew everything that the Marine knew when he pulled the trigger, you know nothing more than what the reporter told you. Knowing half the facts is often worse than knowing none of them.

Semper Fi

Re:Great News!

[prisoner-of-enigma]

Sometimes they are going to be wrong, and we're going to see a whole lot of that in footage, analyzed thoroughly over days, when the officers in question had only milliseconds to make their analysis.

You hit upon a salient point with this sentence: sometimes, people in positions of authority must act quickly, without all the facts, or without hours (or days) of time to mull over all the possible permutations and implications of an action that *must* be taken -- usually when lives are at stake. Sometimes, those decisions are going to be wrong. I'm all for cutting people slack for making a bad call if they were trying to do the right thing. Shit happens. Monday morning quarterbacking is easy. Hindsight is 20/20 and all that. There is no way you're ever going to invent any human that will always make the right decision all the time. It doesn't mean you stop making said decisions.

The line is drawn, however, when individuals *clearly know* what they're doing is wrong and they do it anyway. I find it ridiculous to believe the officer who arrested Mr. Glik thought he was being "secretly" recorded and thus within his capacity to arrest Mr. Glik. His conduct -- clearly recorded and available on YouTube -- shows an arrogant, power-tripping police officer annoyed at having his possibly-questionable behavior recorded by a civilian. It shows that same officer abusing his authority, intimidating and then arresting Mr. Glik. The chutzpah of the DA is also without bounds, using a wiretapping statute that clearly does not apply and I'm damned sure the DA knew it. But they couldn't admit they'd done something wrong. They had to try to save face instead, hence the idiotic -- and now discredited -- wiretapping claim. The same would go for a Marine shooting an obviously-harmless civilian in cold blood, only with much greater penalties. You cannot defend the indefensible, and you only look like more of an asshat when you try to do so with a straight face.

Missed one...

[MickyTheIdiot]

You are missing the recent case in Rochester where a woman was arrested on her own front lawn for videotaping an arrest going on just off of her property. IIRC the D.A. decided to not bring the case to trial, but the police continued to harass the woman and a demonstration held against the arrest. There was also a news conference with one of those great police organisations going off about how the video recording makes them "less safe."

What bollocks... if the tables were turned you know the police would scream that there was no expectation of privacy on a public street... and the woman was standing on her very own lawn.

Re:constitution also protects:

[anagama]

Oliver Wendell Holmes Jr.: 'I like to pay taxes. With them, I buy civilization.'

I know my taxes aren't buying any type of civilization in the middle east, despite the trillions going there. In fact, my tax dollars are doing the exact opposite by creating anarchy, pollution, death, and destruction. If those things are the hallmarks of civilization, well, you can keep it.

Most everything you list is a local function BTW. Maybe the world be a better and safer place if government was not allowed to be so large. The scale of death and destruction my county could cause is a mere fraction of that my country is causing, and my county could still build roads and put out fires (I live in a donor state BTW, without the Feds, we'd have MORE money for these things than we do now).

Re:and so they learn

[MarkvW]

Many judges have deep and long lasting friendships with the lawyers that appear before them.

In my community, a few years a judge (now dead) heard cases where the best man at his wedding was the defense lawyer.

One day, the judge made a ruling that the defense lawyer did not like. The defense lawyer--on the record--accused the judge of being biased against him (because he was bending over too far backward to be fair). The lawyer then left the courtroom in a huff.

What did the judge do? Did he get a fucking clue and disqualify himself from the case? Noooooo. The judge ran out into the parking lot and brought the lawyer back into the courtroom. The judge then reversed his decision.

This kind of thing is not rare.

Re:and so they learn

[fl_litig8r]

I've seen this problem all the time in my civil right practice. Most of the time it's LEOs arresting someone for disorderly conduct without knowing that the First Amendment trumps the state criminal statute in almost all cases except those where the person is practically inciting a riot.