The Informant

Ali Winston

People record protestors facing off against police officers in Downtown Oakland on July 8, 2010.

On Monday, the First U.S. Circuit of Appeals out of Boston weighed in on a crucial issue for police accountability activists by ruling that citizens may videotape police officers are protected by the First Amendment. The ruling in Glik v. Cunniffe, et al (No. 10-1764) comes at a critical time when prosecutors and police in several states aside from Massachusetts (including Illinois, Maryland and Florida) are arresting and charging citizens with violations of wiretapping laws for recording police.

In California, a Vallejo man was arrested in April by local police for filming an arrest from within his garage.

The case at hand involved an incident in 2008. Boston attorney Simon Glik was arrested for filming the arrest of a young man by several police officers on the Boston Common. According to the First Circuit Opinion, Glik took out his cellphone and recorded the arrest when he believed officers were using excessive force to detain a demonstrator. Boston police took issue with Glik’s actions, detained him and confiscated his equipment.

Here is the narrative of the incident provided in the First District’s opinion:

“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 officer 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.”

Glik initially sued the Boston Police in federal civil court for violating his First and Fourth Amendment rights. The court found in Glik’s favor, and the First Circuit’s ruling on Monday confirmed that Massachussetts’ wiretapping law (which requires the consent of both parties in order to record a conversation), did not apply to police actions in a public space.

In their opinion, the First Circuit Justices declared that Glik was “comfortably” within his First Amendment rights to record events in a public space without consent. The court explicitly addressed the justification for filming the actions of law enforcement officials because, as the opinion states: “are granted substantial discretion that may be misused to deprive individuals of their liberties.”

Sarah Wunsch, a staff attorney for the Massachusetts ACLU affiliate, said the First Circuit’s ruling will echo elsewhere: “It will be influential around the country in other cases where people have been arrested for videotaping the conduct of the police,”said Wunsch.