Recording Police Misconduct Protected by First Amendment
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Simon Glik was, and remains, a good citizen. He understands right from wrong no matter who the author of the wrongful action may be. So what he did on the evening of October 1, 2007 was a natural response of a good citizen. As he was walking past the Boston Common, he saw three of Boston’s finest arresting a young man. Moments later he heard a bystander exclaim, “you are hurting him, stop!” Glik, who was only ten feet away from the arresting officers, was concerned enough that the police were using “excessive force,” he began filming the incident on his cell phone.
The officers quite naturally did not appreciate a good citizen recording their questionable conduct. Once they got the young man in handcuffs, one of the officers turned to Glik, saying: “I think you’ve taken enough pictures.” Glik replied: “I am recording this. I saw you punch him.” One of the officers quickly passed the threshold of annoyance and escalated the confrontation with Glik into full-blown abuse of police power. He asked Glik if the cell phone recorded audio. Glik said that it did at which time the officer placed him in handcuffs. The officer informed Glik that he was being arrested for “unlawful audio recording” in violation of Massachusetts’ wiretap statute. After Glik was taken to the South Boston police station, the police there in the course of booking him took his “cell phone and a computer flash drive and held them as evidence.”
Boston police are apparently oblivious to having their misconduct “caught on camera.” Just last year a woman videotaped officers roughing up a 16-year-old teenager. The video captured police hovering around the teen as he lay on the ground while one of the officers punched him (here and here and here). You would think the Boston police would have learned something from the Glik, but apparently they didn’t.
The Boston police managed to get Glik charged not only with a violation of the wiretap statute but with disturbing the peace and aiding in the escape of a prisoner. The First Circuit Court of Appeal reported that the district attorney’s office voluntarily dismissed the aiding in escape of a prisoner charge which was followed by a February 2008 decision by the “Boston Municipal Court” dismissing the other two charges. The state court judge, as cited by the First Circuit, “noted that the fact that the officers were unhappy they were being recorded during an arrest does not make a lawful exercise of a First Amendment right a crime. Likewise, the court found no probable cause supporting the wiretapping charge, because the law requires a secret recording and the officers admitted the Glik had used his cell phone openly and in plain view to obtain the video and audio recording.”
Glik first tried to address the wrong done to him by the officers through the department’s internal affairs section. IA did not [even] “investigate his complaint or initiate disciplinary action against the arresting officers. Realizing it was futile to pursue administrative redress, Glik in February 2010 filed a civil rights lawsuit in federal court against the police officers and the City of Boston. Glik demanded damages for violation of his First and Fourteenth Amendment rights, as well as for violation of his rights under the Massachusetts Civil Rights Act and for malicious prosecution.”
Still unhappy about being caught on camera, the officers quickly moved to have Glik’s lawsuit tossed out of federal court. The officers claimed that the allegations set forth in Glik’s complaint did not state a cause of action and even if a cause had been stated, the officers were entitled to dismissal because they enjoyed qualified immunity. The federal district court rejected the officers’ defenses, especially the qualified immunity defense. Nearly thirty years of ago the U.S. Supreme Court, in Harlow v. Fitzgerald, established the constitutional principle that public officials are entitled to qualified immunity only if the court can determine from a reading of the complaint that (1) the facts alleged make out a violation of a constitutional right, and (2) the constitutional right was “clearly established” at the time of its violation.
The second prong of the Harlow test (the “clearly established” issue) requires the court to conduct an additional two-prong analysis of (1) “clarity of the law at the time of the alleged civil rights violation”, and (2) whether, given the facts of the particular case, “a reasonable defendant would have understood that his conduct violated the plaintiff[‘s] constitutional rights.” Essentially, as the First Circuit pointed out, “the salient question is whether the state of the law at the time of the alleged violation gave the defendant fair warning that his particular conduct was unconstitutional.”
There was two “state of the law” questions that had to be resolved in Glik’s case: 1) whether the “clarity of the law” established a First Amendment right to “record police officers carrying out their public duties,” and 2) whether the case law interpreting Massachusetts’ wiretap law would have led “a reasonable officer” to believe there was probable cause to arrest Glik.
The following First Amendment protections have been clearly enunciated by the U.S. Supreme Court:
- “[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”
- “It is well established that the constitution protects the right to receive information and ideas.”
- “[T]here is an undoubted right to gather news ‘from any source by means within the law.’”
- The First Amendment has an interest in not only protecting but promoting “the free discussion of governmental affairs.”
The First Circuit easily concluded that Glik’s actions of “the filming of government officials engaged in their duties in a public place, fits comfortably within these principles.” The Court added that “gathering information about government officials in a form that can readily be disseminated to others” serves the “cardinal First Amendment interest” in protecting “’the free discussion of governmental affairs.’” This rule particularly applies to “law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties.
The question then was whether this First Amendment right was “clearly established” at the time Glik filmed the officers engaged in the misconduct. The First Circuit pointed to a long list of cases from its own circuit and other courts dating as far back as 1969 upholding the right to “gather information about what public officials do on public property, and specifically, a right to record matters of public interests.” This right is not extended just to reporters but to all citizens because “the public’s right of access to information is coextensive with that of the press.”
The First Circuit pointed out that Glik’s filming of the officers occurred in the “Boston Common, the oldest city park in the United States and the apotheosis of a public forum.” But more importantly it was the following observation by the court that ruled the day: “In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. Indeed, ‘[t]he freedom of individuals to verbally oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.’ The same restraint demanded of law enforcement officers in the face of ‘provocative and challenging’ speech must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.”
The following Fourth Amendment protections against unreasonable seizures (arrests) have been clearly enunciated by the U.S. Supreme Court and the First Circuit:
- The Fourth Amendment requires that an arrest be grounded in probable cause.
- Probable cause means that “at the time of arrest the ‘facts and circumstances within the officer’s knowledge [were] sufficient to warrant a prudent person, one of reasonable caution, in believing, in the circumstances shown, that the suspect [had] committed, [was] committing, or [was] about to commit an offense.’”
Glik’s complaint was rooted in the soil that the police lacked probable cause to arrest him for violating Massachusetts’ wiretap statute—a law which prohibits the willful “interception … of any wire or oral communication.” Massachusetts courts have limited the term “interception” to mean “to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.”
The initial question before the First Circuit was whether Glik “secretly” videotaped the police. The Massachusetts Supreme Court has held that a recording is “secret” only if the subject of the recording does not have “actual knowledge” of the recording. Put simply, the court held that secretly recording a traffic stop violates the wiretap statute, but if a person records a traffic stop, or any other police conduct, with the tape recorder “in plain sight,” there is no violation of the statute. The secrecy issue then is notice, and if the camera, or recording device, is used in plain view, then an inference can be drawn that the subject is aware that he/she is being recorded.
In Glik’s case, he openly used his cell phone to record the police’s actions—a fact that the police conceded—and, thus, there was no violation of the wiretap statute. The police, however, argued strenuously that “Glik’s use of a cell phone was insufficient to put them on notice of the recording. They note that a cell phone, unlike a tape recorder, has numerous discrete functions, such as text messaging, internet browsing, video gaming, and photography, and thus the fact of an individual holding out a cell phone in front of his body is of indeterminate significance. The argument suffers from factual as well as legal flaws. The allegations of the complaint indicate that the officers were cognizant of Glik’s surveillance, knew that Glik was using his phone to record them in some fashion, and were aware, based on their asking Glik whether he was recording audio, that cell phones may have sound recording capabilities. The fact that a cell phone may have other functions in thus irrelevant to the question of whether Glik’s recording was ‘secret.’”
Having concluded that the officers did not have probable cause to arrest Glik under the wiretap statute, the First Circuit turned its attention to whether the officers should have understood that arresting Glik for a wiretap offense under the circumstances violated his Fourth Amendment rights. While the court noted that in Fourth Amendment cases the police are entitled to qualified immunity so long as probable cause is at least arguable, the First Circuit concluded the officers were not entitled to that defense in Glik’s case:
“The presence of probable cause was not even arguable here. The allegations of the complaint establish that Glik was openly recording the police officers and that they were aware of his surveillance. For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was ‘secret’ merely because the officer did not have actual knowledge of whether audio was being recorded.”
Earlier this year we posted a piece about police misconduct becoming epidemic in this country (here). Police departments in Atlanta, San Diego, and especially Oakland have used excessive force in trying to stop the legitimate Wall Street social protests. We encourage the protestors to keep the cell phones in plain sight as they record this nationwide police misconduct against the protectors. The Wall Street “robber barons” have called out the hounds of the police state to suppress the protests. Twenty years ago they could have used these excessive force tactics with impunity, but not today – You Tube, Facebook, and Twitter are forever present to expose these tactics. Exposure is the best remedy for excessive force.
We applaud Simon Glik, and all the other good citizens in this country who risk their personal safety and well-being to provide the rest of us with that free flow of information that protects all our personal liberties.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization