Disappeared News: First Circuit affirms constitutional right to video cops

Monday, August 29, 2011

First Circuit affirms constitutional right to video cops

“The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. 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.”

by Larry Geller

Big Island blogger Damon Tucker’s recent run-in with camera-shy cops has brought the national issue of whether ordinary citizens may photograph police in action right home to Hawaii.

But shouldn’t the police be aware of and follow the law? Police, in fact, are not great law-abiders themselves, it turns out. There are numerous incidents of police misconduct, improper arrests, lying, assaults, and more that can be uncovered in a few moment’s googling. Among them are several recent high-profile cases where either journalists or ordinary citizens were nabbed for doing nothing more than taking cellphone pictures of police on the public streets.

Citizen videos have proven crucial in cases such as the San Francisco BART police shooting of Oscar Grant on a train platform.

Tucker posted pictures of injuries he said he received as a result of alleged brutality at the hands of the Big Island police. Not only was he arrested, but his equipment was confiscated.

The article is at First Circuit Panel Says There’s a Clear Constitutional Right To Openly Record Cops.(The Agitator, 8/26/2011). I’ve included the ruling below for reader convenience. Of course, Hawaii is in the 9th Circuit, but the case is still significant, if not binding.

From the ruling, the incident resembled so many others around the country:

As he was walking past the Boston Common on the evening of October 1, 2007, Simon Glik caught sight of three police officers -- the individual defendants here -- arresting a young man. Glik heard another bystander say something to the effect of, "You are hurting him, stop." Concerned that the officers were employing excessive force to effect the arrest, Glik stopped roughly ten feet away and began recording video footage of the arrest on his cell phone.

After placing the suspect in handcuffs, one of the officers turned to Glik and said, "I think you have taken enough pictures." Glik replied, "I am recording this. I saw you punch him." An officer1 then approached Glik and asked if Glik's cell phone recorded audio. When Glik affirmed that he was recording audio, the officer placed him in handcuffs, arresting him for, inter alia, unlawful audio recording in violation of Massachusetts's wiretap statute. Glik was taken to the South Boston police station. In the course of booking, the police confiscated Glik's cell phone and a computer flash drive and held them as evidence.

The First Circuit ruled that the officers are not protected by qualified immunity. That may be significant in Tucker’s case as well, depending on what kind of legal action he may choose to take.

ACLU video related to this case: