1st Circuit: A Clearly Established First Amendment Right to Film Officers In A Public Space (This Is A Big Deal) Part I

Via Don

The First Circuit Court of Appeals opinion in the much anticipated Glik case came down Friday. Judge Kermit Lipez wrote this refreshingly tidy opinion for the unanimous panel. This opinion is a huge deal for the right to record police, and marks the first time a circuit opinion truly gets the law right–the other circuit opinions are either woefully thin on reasoning, not quite on point, or ambiguous.

Facts and Context

Simon Glik is a Massachusetts attorney. Aside from being especially positioned to vindicate his rights, the incident is a typical copwatching encounter. In October 2007, Glik saw three Massachusetts officers arresting a suspect. When he heard a bystander complain about the officers’ use of force, Glik began recording the arrest from about 10 feet away using his cell phone. Officers told him to stop. He didn’t. An officer asked Glik if his video recording included audio. Glik said yes. Officers arrested him for violating the state wiretapping statute.

As readers probably know, the Massachusetts Supreme Court upheld the criminalization of secretly recording police in Commonwealth v. Hyde, 434 Mass. 594, 750 N.E.2d 963 (2001). Yet Glik recorded openly. Copwatchers know that in Massachusetts, Florida, and a number of other states, some officers will wrongly charge individuals with a wiretapping charge to stop them from recording police, and almost all cases plea or settle. People generally cannot afford the legal costs and criminal attorneys themselves generally don’t know this area of the law so well. But Glik went to the mat to vindicate the right. The prosecution dropped charges. Glik filed a complaint with internal affairs, but as usual the department neither investigated nor took disciplinary action.

The ACLU-MA assumed direct representation of Glik, and filed a civil suit. Glik won at trial, and Boston appealed on behalf of the officers (City’s brief, ACLU-MA brief). Two sets of amici then jumped on–the Center for Constitutional Rights (brief) with a host of Copwatch and police accountability groups, and a number of media groups (brief).

Legal Backdrop: The ACLU-MA Engagement, and the Growing Divide Between the First Circuit and The Massachusetts High Court

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