Following a number of incidents in which individuals were arrested for videotaping police officers, a federal appellate court has ruled that filming government officials while on duty is protected by the First Amendment, as most of the arrestees have claimed, but the ruling is binding only in Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico.
Police departments across the U.S. have long asserted that citizens don’t have the right to videotape officers while they conduct official duties. The issue has become especially heated in the last few years because a growing number of law-abiding citizens have gotten booked for taping officers at work.
One of the cases made it up to the U.S. Court of Appeals for the First Circuit, which recently ruled that police can be recorded while they’re working. The case involves an attorney, Simon Glik, arrested and charged with violating a wiretap statute in 2007 for using his cell phone to record Boston police officers making an arrest.
When a state court dismissed the charges against Glik, he filed a civil rights lawsuit in federal court claiming that Boston Police officers violated his First Amendment rights by stopping him from recording and his Fourth Amendment rights by arresting him without probable cause. Boston Police asked the court to dismiss the case based on qualified immunity from lawsuits as officers acting within the scope of their duties.
But the federal appellate court settled the issue, ruling that the filming of government officials engaged in their duties in a public place fits comfortably within the principles of protected First Amendment activity. The court also noted that police officers are to expect to deal with certain “burdens” as citizens practice First Amendments rights.
According to this ACLU link, the settlement follows a landmark ruling August 26, 2011 by the U.S. Court of Appeals for the First Circuit, declaring that the First Amendment protects the right to record police carrying out their duties in a public place, Glik v. Cunniffe 655 F.3d 78 (2011). The First Circuit’s ruling is binding only in Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico, but its persuasive reasoning has been cited by courts and lawyers nationwide facing the recurrent issue of police arresting people for filming them.
The Massachusetts wiretap statute prohibits only secret recording of audio. The First Circuit in Glik’s case affirmed that an arrest under the statute for openly recording the police would violate not only the First Amendment right to gather information but also the Fourth Amendment’s guarantee against false arrests.
“The law had been clear for years that openly recording a video is not a crime. It’s sad that it takes so much for police to learn the laws they were supposed to know in the first place. I hope Boston police officers will never again arrest someone for openly recording their public actions,” said Glik.
A lot of information at this link below. An important section reads:
“Twelve states—California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington—require the consent of all parties for you to record a conversation.
However, all but 2 of these states—Massachusetts and Illinois—have an “expectation of privacy provision” to their all-party laws that courts have ruled does not apply to on-duty police (or anyone in public). In other words, it’s technically legal in those 48 states to openly record on-duty police.”
In light of the U.S. Court of Appeals for the First Circuit ruling, the NJ Chapter of the ACLU has now created an APP to secretly record police and upload it directly to the ACLU site.
“Police often videotape civilians and civilians have a constitutionally protected right to videotape police,” said Alexander Shalom, ACLU New Jersey Police Council, to NJ.com. “When people know they’re being watched, they tend to behave well.”
Now it’s the citizens turn to say to the police “If you’re not doing anything wrong, you have nothing to worry about”.
In Summary, because the First Circuit’s ruling is binding only in Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico, there is still no clear cut ruling of how your local circuit court would find if you were arrested for video taping police. There is now case law to point to but the Florida Law Review of the Glik case (link above) states the First Circuit did not “define public space” and therefore is open for interpretation. With all the information above, it appears video taping police still comes with risk of arrest.
Disclaimer: This post does not constitute legal opinion or advice but rather links to information, various facts, different sources and opinions the reader can add to his or her own research. CPF suggests staying informed and updated as new information and case law is regularly created. As of today, there is not a uniform national ruling on this subject.