August 2011 Archives

As mobile phones with video recording capabilities have proliferated, we've had a lot of interactions in the past few years between citizens with video recorders, and officers who aren't happy about being recorded.  These cases tend to involve officers arresting people for violating their state's "wiretapping" laws, which generally prevent recording another without his or her knowledge.  Most of these laws also have explicit exclusions for recordings made in a public place; the few states that do not have tended to have public officials who believe they are entitled to crush people's First and Fourth Amendment rights simply so that no record of their official conduct in public may be made.

Back in 2007, Simon Glik was walking past Boston Common and witnessed three officers arresting a man.  Fearing the arrest was unnecessarily violent, Mr. Glik began recording it on his mobile phone.  After that arrest was complete and the suspect was detained, he was approached and told by an officer to stop taking pictures.  He informed the officer that he was actually taking video, at which point he was asked whether his video recording included sound.  When he answered in the affirmative, he was arrested, and subsequently charged with violating the state's wiretapping laws; disturbing the peace (!); and aiding in the escape of a prisoner (!!).  All three charges were subsequently dropped.  When Mr. Glik requested a investigation from the Suffolk County Police Department's Internal Affairs division, he was ignored, so he filed a 42 U.S.C. ยง 1983 civil rights violation case against the officers in question.

The officers, of course, claimed qualified immunity, under which an officer acting in good faith is generally immune from prosecution.  The legal standard for this is that if a "reasonable" officer would have recognized that his conduct violated someone's Constitutional rights, immunity is lost and the case may proceed.  The District court indeed concluded that a reasonable officer should've recognized that arresting Mr. Glik for recording them was a violation of his First Amendment rights, and that, therefor, they had no qualified immunity.  The officers appealed, and, today, a three-judge panel affirmed that, yes, they should've known they were trampling Mr. Gilk's constitutional rights, and that they could consequently be sued.

This is a tremendous victory not just for our rights - we need more decisions like this to remind public officials who their real bosses are.  It's also not just a victory for snark (Boston Common is "the oldest city park in the United  States and the apotheosis of a public forum").  It hammers home three really important points.

1.  You have a First Amendment right to record public officials in public while performing their duties.

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [First Amendment protections].

2.  That right does not just extend to some sort of "professional" press corps - we all have it.

It is of no significance that the present case...involves a private individual, and not a reporter, gathering information about public officials. The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press.

3.  Officers who are arresting people today for "wiretapping" violations while exercising their First Amendment rights are on notice that they may be held personally liable for these illegal arrests.

As activists like Photography Is Not A Crime have shown, the number of officers who seem to feel they have an ability to stop us recording them is large.  Perhaps recognizing that they are personally on the hook for these rights violations will encourage them to tolerate citizens peacefully recording them, instead of arresting law-abiding citizens for the crime of not showing proper deference.

Back, sort of.

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My old server (huxley, long may he rest in peace) finally gave up the ghost.  I'd been expecting this for a long time, and had (I thought) everything I at all cared about it, off of it.

It turned out I missed something, though - the blog.  So, it's now hosted back here but the archives are currently a mess (and, obviously, the templates and links and what-not here are gone).

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This page is an archive of entries from August 2011 listed from newest to oldest.

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