FEATURED IN INVESTIGATION
Being a police officer nowadays is like being in a fish bowl: Everyone can see your every move and there’s no place to hide. Media crews and security cameras can be found on every corner in the U.S. Cell phones are within everybody’s reach and ready to capture a photograph of officers in action. Amazingly, cell phones are now equipped to record video and audio with a simple push of a button, resulting in high-quality video for the world to see.
Thus, it’s not unusual for bystanders witnessing arrests and other physical interactions with the police to videotape and record every word uttered by the officers.
Admittedly, it can be unsettling when officers are confronted with one or more individuals recording their activities. Such recordings (which never really capture what the officers actually saw from their perspectives) can be used after the fact to scrutinize officers’ actions or inactions, which in turn, can lead to discipline and civil and criminal litigation when officers did what they thought was right under the circumstances. There are occasions where officers sometimes find themselves acting defensively and taking measures to prohibit any recording of their activities. Sometimes those measures result in officers arresting the individuals recording the officers and confiscating their cell phones. Sometimes those measures result in a federal civil rights lawsuit against the officers.
In Glik v. Cunniffe,1 Simon Glik was arrested for using his cell phone’s digital video camera to film several officers arresting an individual on the Boston Common. Glik was arrested and charged with violating Massachusetts’ wiretap statute among other violations. The criminal charges were later deemed baseless and dismissed. Glik then brought a civil rights lawsuit against the arresting officers and the City of Boston alleging that his rights under the First and Fourth Amendments were violated.
The defendant officers filed a motion to dismiss the claims against them, asserting qualified immunity. The district court denied their motion, holding that, based on the facts alleged in Glik’s complaint, he was exercising his clearly established First Amendment rights in recording the officers in a public place and that his arrest was made without probable cause in violation of the Fourth Amendment. The officers appealed, but the First Circuit Court of Appeals agreed with the lower court and affirmed its decision denying the officers qualified immunity.
During the evening of October 1, 2007, Glik happened to be walking past the Boston Common when he saw three police officers arresting a male individual. Glik heard another bystander say, “You are hurting him, stop.”3 Thinking that the officers may have been using excessive force during the arrest, Glik began recording the arrest with his cell phone, standing roughly 10 feet away from the officers.
After the individual was handcuffed, an officer turned to Glik and said, “I think you have taken enough pictures.”4 In response, Glik said, “I am recording this. I saw you punch him.”5 Although it’s not clear whether it was the same officer, an officer asked Glik if his cell phone recorded audio. After affirming that he was audio recording the incident, the officer arrested Glik for unlawful audio recording in violation of Massachusetts’ wiretap statute.6 He was taken to the police station where his cell phone and a computer flash drive were confiscated and held for evidence.
The criminal court dismissed the wiretap charge, finding no probable cause because the law required a secret recording. The officers admitted that Glik used his cell phone openly and in plain view to record the officers’ activities. Subsequently, Glik filed an internal affairs complaint with the police department that wasn’t investigated. A civil lawsuit ensued.
Appellate Court Opinion
The First Circuit Court of Appeals drafted its opinion in response to the defendant officers’ qualified immunity argument. First, it stated that the qualified immunity doctrine “balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”7 The qualified immunity analysis is two-pronged and can be addressed in any order: “(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was ‘clearly established’ at the time of the defendant’s alleged violation.”8
The First Circuit also divides the “clearly established” analysis into two subparts: “(1) ‘the clarity of the law at the time of the alleged civil rights violation,’ and (2) whether, given the facts of the particular case, ‘a reasonable defendant would have understood that his conduct violated the plaintiff’s constitutional rights.’”9
The officers in this case based their qualified immunity argument on the “clearly established” prong. First, they argued that the right to record police officers carrying out their public duties wasn’t clearly established under the First Amendment. With respect to the Fourth Amendment claim, the officers argued that in light of Massachusetts’ case law interpreting the wiretap statute, a reasonable police officer would have believed that there was probable cause to arrest Glik, thereby complying with the Fourth Amendment.
The First Amendment Claim
Narrowly framed, the question on appeal was: Is there a constitutionally protected right to videotape police carrying out their duties in public? The First Circuit answered the question in the affirmative. The court found that “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.’”10 The court found it of no consequence that the gathering of information was conducted by a private individual rather than a traditional news reporter.
That being said, the court noted that the right to film isn’t without limitations. It could be subject to reasonable time, place and manner restrictions typical of First Amendment analyses. The court found that based on Glik’s allegations, his activity fell well within the First Amendment protections. That is, Glik’s peaceful recording of the officers’ arrest in a public space that didn’t interfere with the performance of their duties wasn’t reasonably subject to limitation.
Importantly, the court observed that “[i]n our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. . . . [and] [t]he same restraint demanded of law enforcement officers in the face of ‘provocative and challenging’ speech must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.”11 The court then found that the state of the law, particularly in the First Circuit, at the time of the alleged violation provided the defendant officers with fair warning that their particular conduct was unconstitutional.
The Fourth Amendment Claim
Whether Glik’s Fourth Amendment rights were violated depended upon Massachusetts law. Without question, the Fourth Amendment requires probable cause for every arrest. The defendant officers argued that they had probable cause to arrest Glik for violating the Massachusetts wiretap statute.
Massachusetts’ wiretap statute makes it illegal to “willfully commit an interception . . . of any wire or oral communication.”12 “Interception” is defined to mean “to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.”13
According to the appellate court, the question was whether, based on the facts alleged, Glik “secretly” filmed the officers. The court relied on Massachusetts case law precedence to find that “the secrecy inquiry turns on notice, i.e., whether, based on objective indicators, such as the presence of a recording device in plain view, one can infer that the subject was aware that she might be recorded.”14
In this case, the court found that because Glik alleged that he openly recorded the police officers with his cell phone and that the police officers admitted Glik was publicly and openly recording them, the conduct fell plainly outside the type of clandestine recording targeted by the wiretap statute. Additionally, the court found that the officers made clear through their conduct that they knew Glik was recording them, particularly when an officer approached him stating, “I think you have taken enough pictures.”
The court rejected the officers’ argument that they weren’t in a position to know that Glik was audio recording them. It found that the use in plain view of a device commonly known to record audio is, on its own, sufficient evidence from which to infer the officers’ actual knowledge that he’s being audio recorded.
The appellate court held that Glik’s recording wasn’t “secret” within the meaning of the state statute. “Simply put, a straightforward reading of the statue and case law cannot support the suggestion that a recording made with a device known to record audio and held in plain view is ‘secret.’”15 As such, the court found the officers lacked probable cause and that Glik’s complaint demonstrated a Fourth Amendment violation.
Officers must be aware of their individual state statutes regarding wiretapping and eavesdropping because each state’s laws on these subjects differ. Additionally, this is a “hot-button” issue for many civil rights and law enforcement watch groups. Officers should be trained on how to respond—if at all—to individuals recording their law enforcement activities. It doesn’t take much. In fact, the training could be implemented in traditional use-of-force training scenarios or roll-call presentations. The bottom line: Address it before it becomes a problem.
1. No. 10-1764, 2011 WL 3769092 (1st Cir., August 26, 2011).
2. The “facts” are taken from Glik’s civil complaint which are, for purposes of a motion to dismiss, taken as true. In reality, the facts may be different.
3. Glik, 2011 WL 3769092 at *1.
6. Mass. Gen. Laws ch. 272, § 99(C)(1).
7. Glik, at *2 (citations omitted).
8. Id. (citations omitted).
9. Id. (citations omitted).
10. Id. at *4 (citation omitted).
11. Id. at *6 (citations omitted).
12. Id. at *7 (citing Mass. Gen. Law ch. 272, § 99(C)(1)).
13. Id. (citing § 99(B)(4)).
14. Glik, at *7 (citations omitted).
15. Id. at *9.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.