Long before I became a law blogger, I spent a good chunk of time working as a photojournalist. Periodically, I wound up photographing the police. Whether it was at an arrest at a football game, or an officer who suffered an unusual injury, officers rarely hassled me because I usually had a press pass and a big, professional-looking camera.

But anyone can film in public spaces. One of the most important — and overlooked — technological developments of the last five-odd years is the ease with which anyone can record police doing their jobs and throw the video on YouTube. The technology can be a great deterrent against police misconduct.

So it’s really, seriously disturbing when police try to intimidate witnesses into turning off their cellphone cameras. It’s even more nauseating when someone gets arrested for simply filming police activity. Luckily, a recent decision from First Circuit unambiguously told police to cut it out.

Keep reading for details about the man who was arrested for taping police in America’s oldest public park, as well as Judge Kermit Lipez’s benchslap of the officers who made the arrest….

Nathan Koppel at the WSJ Law Blog sums up the case:

At issue in the case was a 2007 arrest. As he walked past the Boston Common one night, Simon Glik noticed three officers arresting a young man. Glik was concerned that the officers might be using excessive force, according to the First Circuit opinion.

Glik whipped out his cell phone and started videotaping the arrest. An officer asked Glik if he was recording audio. When Glik said that he was, the officer arrested him for allegedly violating the state’s wiretap law, the opinion notes.

After the charge was dropped, Glik filed a lawsuit, claiming his free speech rights had been violated. The officers claimed they were immune from the suit because they were acting in their official capacity.

Judge Kermit disagreed, writing an opinion that resembles this scene from Billy Madison. In short, American police working in public simply have to put up with pesky citizens who want to prevent abuse of power.

Here are some highlights from the opinion, as compiled by the Citizen Media Law Project:

- [I]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.

- Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are ‘sharply circumscribed.’

- [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.

- “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.’”

So yeah, it’s a pretty straightforward issue. That being said, it’s unsettling that some law enforcement think they can justifiably arrest people like this woman and this man for simply taking advantage of modern technology.

Lipez also makes it clear (as if it weren’t already) that you don’t need to work at a newspaper to have these rights:

[C]hanges in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew.

Even though a lot of the citizen journalist hype is total crap wishful thinking, several notable police misconduct news stories over the last few years became big stories because of cell phone videos.

In 2009, when BART Police Officer Johannes Mehserle shot a restrained, unarmed man in the back and killed him, cell phone videos like this one [warning, it's disturbing] taken by train passengers helped turn the case into an absolute firestorm in the Bay Area. Mehserle was eventually convicted of involuntary manslaughter.

In 2006, UCLA campus police tasered a Middle Eastern student in the school library, stemming from a conflict regarding his lack of ID. He eventually settled with the school to the tune of $220,000. And, of course, who could forget the “Don’t Tase Me, Bro” incident?

What’s the lawyerly lesson in all this? If you have the opportunity to represent someone who got in trouble for publicly recording the cops, take the case. It’s probably a slam dunk.

First Circuit Upholds Right To Videotape Arresting Officers [WSJ Law Blog]


Christopher Danzig is a writer in Oakland, California. He previously covered legal technology for InsideCounsel magazine. Follow Chris on Twitter @chrisdanzig or email him at [email protected]. You can read more of his work at chrisdanzig.com.


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