First Circuit: Police Officers Lack Qualified Immunity in Cell Phone Recording Arrest

The First Circuit has denied qualified immunity to several police officers who arrested a bystander for recording their arrest of a third person in its opinion in Glik v. Cunniffe. 

Simon Glik was arrested for using his cell phone's digital video camera to film several police officers arresting a young man on the Boston Common - - - a site the court describes as "the oldest city park in the United States and the apotheosis of a public forum."  The charges against Glik, which included violation of Massachusetts's wiretap statute were "subsequently judged baseless and were dismissed." Glik then brought suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.  The ACLU is representing Glik, and produced the video below that discusses Glik's case and includes an interview with Glik.

 

  

 

 Affirming the district judge on this interlocutory appeal, the court applied the two prong test for qualified immunity: do the allegations show a constitutional violation; and was such constitutional violation "clearly established" at the time of the incident.  For the constitutional violation to be clearly established, the law must have been clear and the defendants must have reasonably understood their actions violated the plaintiff's rights given the facts.

On the First Amendment issue regarding Glik's right to use his cell phone to record police officers in a public place, the First Circuit held that while there need not be a case directly on point, the First Circuit did have such a case.  The court also noted that what was "particularly notable" about that case was the "brevity of the First Amendment discussion, a characteristic found in other circuit opinions that have recognized a right to film government officials or matters of public interest in public space."  For the court, this very "terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment's protections in this area."  The court summed up its conclusion thusly:

Although not unqualified, a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.

The court thus stated it had "no trouble concluding"  that the state of the law at the time of the alleged violation was settled and gave the defendants fair warning that their particular conduct was unconstitutional. 

As for the Fourth Amendment issue, the question was whether Glik's use of the cell phone that included an audio recorder provided probable cause to arrest Glik for violating the Massachusetts wiretap statute.  The court carefully examined state law, holding that it was clear that to violate the state statute the recording had to be surreptitious.  The complaint alleged that Glik was openly recording the officers, however the officers countered that while they might have known he was video-recording them, they would not necessarily know he was audio-recording them.  This was insufficient, the court held, to render the recording "secret."

Thus, Glik's complaint will proceed to trial in district court.  Assuming Glik can prove the facts alleged in the complaint, qualified immunity was the best defense for the officers.   Odds on a settlement?

RR
[h/t Nate Treadwell]