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Court Affirms Legality Of Recording Police Officers

A court ruling affirmed the legality of capturing video of police officers. (grendelkhan/Flickr)

A court ruling affirmed the legality of capturing video of police officers. (grendelkhan/Flickr)

Unfortunately, a big news story like Hurricane Irene is always going to steamroll over some unrelated news items that would otherwise deserve more attention, so here’s a belated acknowledgment of an important story that got a bit buried over the last few days.

Last Friday, the U.S. First Circuit Court of Appeals issued a ruling that affirmed, stronger than ever, the rights of individuals to openly record the actions of police officers.

In 2007, a young lawyer named Simon Glik was walking through Boston Common when he saw three police officers arresting a teenager. Glik thought the officers were getting a little rough, so he flipped open his cellphone camera and started shooting video.

The officers arrested Glik for, in their minds, violating the state’s wire-tapping law, even though the whole incident happened out in public and Glik didn’t try to conceal the fact that he was recording.

The ACLU took up Glik’s cause and the courts threw out the charges against him. Since then, the Boston Police Department has been instructing personnel that the state’s wiretapping law does not apply to people making unconcealed audio or video recordings in public. But Glik and the ACLU have pressed on, suing the BPD and the individual officers for violating his First Amendment rights.

The officers moved to have the suit dismissed, saying they were just enforcing an interpretation of the law that was handed down to them by their superiors. But on Friday, the federal court disagreed.

Judge Kermit Lipez writing for the unanimous panel, wrote, “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’”

That means that Glik’s suit against the officers may now go forward; they could be found liable for Simon Glik’s legal costs, among other damages. And while, theoretically, this kind of thing doesn’t go on in Boston anymore, ACLU attorney Sarah Wunsch says the court’s ruling has broader significance.

“It’s going to be very useful in cases around the country where police officers, whether they use wiretap statutes or disorderly conduct or other kinds of laws,” Wunsch said. “They’ve been using those to arrest people who have done nothing other than what Simon Glick did, which is to hold up a cellphone and record what the police are doing.”

That’s exactly what the circuit court established as a civil right, enjoyed by everyone. Not just those of us in the media.

“Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw,” Judge Lipez wrote. “Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”

In other words, if you openly film a police officer and you don’t get in the way or cause a problem, you are within your rights, according to the U.S. First Circuit Court of Appeals.

WBUR contacted the City of Boston to see if their lawyers wanted to make any statement. They said they are reviewing the court’s opinion and have not yet decided whether to file an appeal.


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  • Anonymous

    What is funny about this story is the direct correlation between the DNA story they just aired (http://radioboston.wbur.org/2011/08/30/dna-privacy) and this story… 

    In the DNA story they said that if YOU’VE done nothing wrong, then you should not be worried about the DA keeping your DNA Profile on file forever. (50 years is more than 1/2 a lifetime which might as well be forever).

    In this story the same people (law enforcement) say that you should not be allowed to record them doing their job in public places, which begs the observation that if THEY’VE done nothing wrong, then THEY shouldn’t be worried about me recording them whenever/wherever they happen to be working.  Just to use their “Well if you’ve done nothing wrong….” argument.

    And they wonder why people don’t respect them…

  • Sarah Wunsch

    just a couple of corrections are needed in this story.  The BPD did not start instructing officers about non-secret recording until after the ACLU civil rights suit was filed.  The articles makes it sound like that happened after the criminal charges were dismissed which is incorrect.  In addition, the officers did not argue in defending against the civil rights suit that they were just following superior orders.  They claimed that what Glik did in recording them was not protected by the First Amendment, or at any rate, the law was not clearly established about that right so they should be held immune from being sued.  The Court rejected that as flatly wrong, the law was clearly established that Americans have a right to observe, document, and record what the police are doing in public.  Finally, I’m not sure what it means to say that “theoretically” this kind of thing doesn’t go on in Boston anymore.  In fact, a YouTube video from an incident at Roxbury Community College in the past year shows a Boston police officer telling someone she couldn’t record police officers using force to arrest a teenager.  Training on this right appears inadequate.

    • Aragusea

      Sarah,

      1) Indeed, the BPD’s training protocol was not adjusted until after the ACLU suit was filed. I understand why you, as an ACLU attorney, think that’s a point that needs to be highlighted, but in this context, we have a lot of details that need to be reduced into a breezy script. The sequence of events we present here is accurate, though there were a few legal lampposts along the way that we decided to spare the listeners.
       
      2) Regarding the nature of the officer’s defense, I again think you’re expecting a degree of detail that we try to avoid in a little radio piece like this. I’m sure you’d argue I changed the meaning in the course of reducing it down, but I’m not really sure I understand the distinction between “the law was not clearly established about the right” and “they were just enforcing an interpretation of the law.” I am, of course, open to being convinced otherwise.
       
      3) What I mean by “theoretically” is that the BPD’s training protocol has changed, but theory and practice don’t always jive. As you’ll recall, I brought you into WBUR to talk about the RCC video when it happened. At the time, the BPD told us what we see in the video is not in keeping with what they train their officers to do. Our use of the word “theoretically” was meant to imply the appropriate degree of skeptisim in light of these facts that we’ve previously reported.
       
      Here’s a link to the segment about the RCC video: http://radioboston.wbur.org/2010/11/01/taping-police

      • Sarah Wunsch

        your reply makes sense to me.  i’m not criticizing your story, but didn’t feel comfortable with the way a few things were phrased.  that’s all. In the midst of the hurricane irene coverage, it’s great that Radio Boston was able to cover the court ruling and its importance.  Thank you.

        • Aragusea

          I understand—and am professionally sympathetic to—your impulse to clarify the public record. I look forward to getting you on our show again!

        • http://www.facebook.com/mrdeleted Joseph Slabaugh

          Hey I been trying to talk to an ACLU Ohio rep in the past, but not able to get anyone to respond… A few years ago, I was on my own property, and federal agents came on my property to get a guy for child support and I started to record the video on my blackberry, but they noticed, and told me I had to delete it, and I tried to act like I did not know how to, and the agent did it… They threatened that I would go to prison if I did not do it. I was out on bail at the time. (On a completely different case) Could I still sue about that? I think at the vary least, this was a violation of my 1st amendment rights.

    • Tracmark

      I agree strongly that improved training up front for all public employees is crucial to improving their
      actual day-to-day compliance with all civil rights laws and constitutional provisions.

      When I was working in the Massachusetts Department of Revenue we were all required to attend
      about two hours of civil rights and “diversity” training, and it was very helpful.

    • Doubting Thomas

      Thanks guys! Even though sometimes your job literally involves standing up for a bunch of jerks, if it weren’t for you we would most likely be a complete police state by now. So please keep it up!

  • Tracmark

    Nice job, ACLU-Boston Unit.    This is big win.   Even though I personally have always had very good
    working relationships with the Boston Police, they will always need to be watched very carefully.  The British
    political philosopher Lord Acton once wrote “Power corrupts and absolute power corrupts absolutely,” and
    sometimes power corrupts public employees in ways that we could never in a million years get a criminal
    indictment for — no matter how much we really wanted one (see Dick Cheney).

    Keep up the good work.

                                                               Mark D. Trachtenberg

  • http://www.facebook.com/people/Chrisz-Quezadii/100001795783534 Chrisz Quezadii

    Keep On Recording

  • http://pulse.yahoo.com/_QUU72AV6EG33Q4CGW2O267Y52Y Notasocialist

    record record record.. this will keep us free

  • Stephan

    “The officers arrested Glik for, in their minds, violating the state’s wire-tapping law…”

    Nonsense.

  • http://twitter.com/ColdDimSum The Red Pill

    There is a relevant Whitehouse.gov “We The People” petition up at: http://wh.gov/4jn

    “Affirm in law every citizens’ right to record the actions of police and other state officials with photos or video”

  • http://twitter.com/BostonTParty2 Thomas Payne

    In a few more years this country is going to make North Korea and E. Germany look like capitols of human rights! Dont you see this people? cummon! wake up! Do you really trust the government with absolute power to collect and store everything about you? right now they are collecting all of your medical records and creating a database with all of YOUR medical history. Your on-star has been recording you and keeping your conversations in a computer! Your cell phone has been tracking everywhere you go and keeping a record of it, along with audio, even when off! Is this the country we want to live in? Jeez this really is worse than East Germany!

    • Kamber2

      East Germany ceased to exist years ago.

  • Anonymous

    Finally some good news! With the Constitution being subverted by the last two presidents its good to know the courts are still willing to uphold it. 

    • Anonymous

      That’s been going on for the last 100 years!!!

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