Badges - Re: Important Court Decison- Photographing Police Actions
- From: utt4@xxxxxxx
- To: badges@xxxxxxxxxxxxx
- Date: Wed, 31 Aug 2011 13:03:30 -0400 (EDT)
SAO WHY do anything ask the camera people to film it take to court
see if they will issue warrants
-----Original Message-----
From: Charles Rahn <c.t.rahn@xxxxxxxx>
To: Badges 1Badge <badges@xxxxxxxxxxxxx>
Sent: Wed, Aug 31, 2011 1:02 am
Subject: Badges - Important Court Decison- Photographing Police Actions
Below are excerpts of a recent court decision
U.S Court of Appeals, First Circuit
GLIK v. CUNNIFFE
Simon GLIK, Plaintiff, Appellee, v. John CUNNIFFE, in his individual capacity;
Peter J. Savalis, in his individual capacity; Jerome Hall–Brewster, in his
individual capacity; City of Boston, Defendants, Appellants.
No. 10–1764. -- August 26, 2011
This is a case having First Amendment and Wiretaping implications about which
investigators should be familiar. Several states have enacted laws prohibiting
citizens from photographing the actions of law enforcement officers. Below are
a few paragraphs of the decision for your evaluation.
Simon Glik was arrested for using his cell phone's digital video camera to film
several police officers arresting a young man on the Boston Common. The charges
against Glik, which included violation of Massachusetts's wiretap statute and
two other state-law offenses, were subsequently judged baseless and were
dismissed. Glik then brought this suit under 42 U.S.C. § 1983, claiming that
his arrest for filming the officers constituted a violation of his rights under
the First and Fourth Amendments.
Glik filed an internal affairs complaint with the Boston Police Department
following his arrest, but to no avail. The Department did not investigate his
complaint or initiate disciplinary action against the arresting officers. In
February 2010, Glik filed a civil rights action against the officers and the
City of Boston in the United States District Court for the District of
Massachusetts. The complaint included claims under 42 U.S.C. § 1983 for
violations of Glik's First and Fourth Amendment rights, as well as state-law
claims under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I,
and for malicious prosecution.
The complaint alleges that Glik “openly record[ed] the police officers” with
his cell phone, and further that “the police officers admitted Mr. Glik was
publicly and openly recording them.” On its face, this conduct falls plainly
outside the type of clandestine recording targeted by the wiretap statute. See
Jackson, 349 N.E.2d at 339 (“While we recognize that [the wiretap statute] is
designed to control the use of electronic surveillance devices by private
individuals because of the serious threat they pose to ‘the privacy of all
citizens,’ (§ 99A), it is clear that the Legislature intended that the
statutory restrictions be applicable only to the secret use of such devices.”
(emphasis added)). Moreover, not only does Hyde (along with the Rivera
concurrences) indicate that the use of a recording device in “plain sight,” as
here, constitutes adequate objective evidence of actual knowledge of the
recording, but here the police officers
made clear through their conduct that they knew Glik was recording them.
Specifically, one of the police officers approached Glik after the suspect had
been handcuffed and told him, “I think you have taken enough pictures.”
The officers protest that Glik's use of a cell phone was insufficient to put
them on notice of the recording. They note that a cell phone, unlike the tape
recorder used in Hyde, has numerous discrete functions, such as text messaging,
internet browsing, video gaming, and photography, and thus the fact of an
individual holding out a cell phone in front of his body is of indeterminate
significance. The argument suffers from factual as well as legal flaws. The
allegations of the complaint indicate that the officers were cognizant of
Glik's surveillance, knew that Glik was using his phone to record them in some
fashion, and were aware, based on their asking Glik whether he was recording
audio, that cell phones may have sound recording capabilities. The fact that a
cell phone may have other functions is thus irrelevant to the question of
whether Glik's recording was “secret.”
Our recognition that the First Amendment protects the filming of government
officials in public spaces accords with the decisions of numerous circuit and
district courts. See, e.g., Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th
Cir.2000) (“The First Amendment protects the right to gather information about
what public officials do on public property, and specifically, a right to
record matters of public interest.”); Fordyce v. City of Seattle, 55 F .3d 436,
439 (9th Cir.1995) (recognizing a “First Amendment right to film matters of
public interest”); Demarest v. Athol/Orange Cmty. Television, Inc., 188
F.Supp.2d 82, 94–95 (D.Mass.2002) (finding it “highly probable” that filming of
a public official on street outside his home by contributors to public access
cable show was protected by the First Amendment, and noting that, “[a]t base,
plaintiffs had a constitutionally protected right to record matters of public
interest”)......
It is of no significance that the present case, unlike Iacobucci and many of
those cited above, involves a private individual, and not a reporter, gathering
information about public officials. The First Amendment right to gather news
is, as the Court has often noted, not one that inures solely to the benefit of
the news media; rather, the public's right of access to information is
coextensive with that of the press.
Below is the link to the full decision in this Massachusetts case involving the
photographing of police officers wherein the person taking photos was arrested.
http://caselaw.findlaw.com/us-1st-circuit/1578557.html?DCMP=NWL-pro_conlaw
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